The City of Richmond “unreasonably cancelled” a building permit application for a cannabis greenhouse on a property in the Agricultural Land Reserve (ALR), a BC Supreme Court judge has ruled.
In a judicial review published Nov. 3, Justice Andrew Mayer quashed the decision of a city building inspector to cancel the building permit application last year, and ordered the city to issue the permit.
In December 2019, Linda English petitioned the court to review the city’s decision to deny her application to build a greenhouse for cannabis production on her Garden City Road property, which is in the ALR.
English applied to the city to build the soil-based greenhouse in May 2019, which according to the decision, would be used to cultivate agricultural crops, including cannabis, “that could result in medicinal or non-medicinal end uses.”
However, on Sept. 30, the city’s director of building approval, James Cooper, refused English’s permit application due to a municipal zoning bylaw that did not allow the cultivation of non-medical cannabis in structures built after July 13, 2018.
That’s the date that an ALR regulation was amended to allow the “lawful production of all forms of cannabis as a farm use.”
A further amendment, in February 2019, stated that farm uses, including the using agricultural land to produce cannabis, can’t be prohibited by local governments.
Meanwhile, the city’s zoning bylaws for farming did not allow for the production of medical or non-medical cannabis production.
English argued that when she submitted her permit application in 2019, the cultivation of all forms of cannabis was allowed on ALR lands, and that when Cooper cancelled the application, the city’s zoning bylaws had been amended to permit cannabis production in the ALR.
Furthermore, she contended that Cooper’s decision was “made in bad faith, in a ‘municipal law sense,’ as an attempt to oppose cannabis cultivation within the city,” according to the decision.
The city, meanwhile, said Cooper’s decision to cancel the permit application was based on his interpretation of Richmond’s bylaws and ALR regulations – set out by the Agricultural Land Commission – and was reasonable.
However, Mayer found that amendments to the ALR regulations did not allow local governments to prohibit cannabis production if it was grown outdoors, inside a structure with a soil base, in pre-existing structures or structures under construction by July 13, 2018.
“In particular, at the time that (English’s) 2019 application was submitted, (the ALR regulation) prevented municipal governments from prohibiting, by bylaw, the production of cannabis inside a structure with a base consisting entirely of soil, regardless of when the structure is constructed,” Mayer’s decision reads.
There was also “insufficient evidence” to prove that the city had “an ulterior or improper purpose” in refusing English’s application, according to the decision.
Mayer also found that there would be no “useful purpose” in sending the application back to the city for further consideration – which the city had asked for.
Instead, he declared that the city “unreasonably cancelled” the building permit, quashed the decision of Cooper to cancel that permit, and issued an order compelling the city to issue the permit to English.
Mayer also awarded costs to English.
