Devon Hume – 27 January 2021
One year ago, the Ministry of Agriculture released the residential flexibility policy intentions paper. This was a massive relief to farmers and landowners operating and residing in British Columbia’s agricultural land reserve (ALR) who had been protesting the removal of residential rights that came with the implementation of ALCA amendment Bill 52.
Bill 52, from a distance, appeared as a positive environmental change intended to preserve arable farmland and prevent dumping and soil removal in the ALR. It also addressed the perceived ‘mega-mansion’ issue by limiting the total floor area of a residence to 500 square meters (5382 square feet) and removing the long-standing option of housing immediate family in a secondary manufactured dwelling. To reinforce these limitations the ministry provided the agricultural land commissions (ALC) more freedom to approve and refuse additional residences.
What the ministry did not consider was that mega-mansions are not a provincial issue and are only found in a handful of municipalities in British Columbia. While implementing the new restrictions they simultaneously amalgamated both agricultural zones into one united zone, thus removing even more freedoms from ALR owners in the Northern and Kootenay regions (previously zone 2) who generally own larger parcels and are further removed from the isolated mega-mansion issue.
There was very little initial push back from the provinces’ farms. Most farms were not aware that these changes had taken effect or how they stood to be impacted. They were already hurting from increasing food imports driving prices down, rising insurance premiums, tightening municipal regulations and crop devastation from environmental factors (floods, fires, drought etc.), and now this new legislation stood to unravel years of legacy planning. The consultation process held by the Ministry consisted of 2600 British Columbians and many did not learn of the changes until the months following its implementation. Many are unaware of the changes even today.
Each lot in the ALR will now be permitted one dwelling with the possibility of an additional dwelling for farm help upon application to the ALC, as long as the need is justified by the farming operation. What exactly is a farm or a farmer? Currently the ALC cannot legally define it for you beyond holding a BC assessments farm status classification for one or more farming practices permitted in the ALR. The farm status alone does not justify the need to accommodate extra farm help. There appears to be several factors involved: size of property and geographical location, farm use on surrounding properties, type of farming operation, (cattle operations are permitted as farm use but equestrian facilities are considered permitted non-farm use); the list continues. Note that the previous legislation allowed for a secondary manufactured dwelling to accommodate immediate family. This was a long-standing right that has since been removed with the implementation of Bill 52.
If you have plans to bring a mobile home to live in while you take over responsibility of the family farm, you had better consider alternate plans as you are now at the mercy of the ALC. You may decide to move your family into the old farmhouse to reside with your parents to allow for the transition. If your parents are anything like mine, I am sure they would be less than enthused about a chaotic close quarters living situation with my growing family. Perhaps you could convince them to live off-site in a condo while you maintain the farm or maybe they could drag the old RV around the country following the sun like a nomadic flock of snowbirds. I am sure for some this freedom would be a welcome change; however, with most farmers I have spoken with, their dream is to stay put in a rocking chair overlooking the land they know and love. It seems to me that after a lifetime of hard work producing the fresh food that feeds us, maybe they should be allowed to choose how they want to handle their succession.
Land is included and excluded from the ALR every year. A landowner might decide to exclude their land from the ALR in favour of a zoning designation that provides more freedom. Unfortunately, that process has changed as well with the implementation of Bill 15. The ALC now has the power to exclude the landowners land from the ALR without permission from the owner.
29 (1) A person may apply to the commission to have land excluded from the agricultural land reserve if the person is
(a) the owner of the land and is
(i) the Province, a first nation government or a local government, or
(ii) a prescribed public body,
(b) a local government, and the land is within the local government’s jurisdiction, or
(c) a first nation government, and the land is within the first nation’s settlement lands.
30 (1) On the commission’s own initiative, the commission may do one of the following, with or without limits or conditions, as applicable:
(a) exclude land from the agricultural land reserve;
(b) permit a non-farm use, non-adhering residential use, soil or fill use or subdivision of land.
(2) Before taking action under subsection (1),
(a) the commission must give notice as required by the regulations of the commission’s intentions and of a public hearing respecting those intentions, and
(b) the public hearing must be held in the prescribed manner.
(3) If the commission takes an action under subsection (1), it must deliver written notice of the action to the owner of the land.
As with so many farms in BC, perhaps it is time to make some hard decisions such as selling the beloved family farm. It may be the smartest plan to get out before the land and their sweat equity is devalued any further by legislations such as Bills 52 and 15. Many are cashing in their investments and retiring; others are opting for farming outside of the ALR to get the support and freedom needed to make farming a viable option.
In our regional district, rural acreages outside the ALR are permitted two permanent homes with suites on a two hectare (five acres) lot. This would allow us the flexibility and funds to farm three times as hard as inside the ALR. On an acreage outside the ALR, we could wipe out half our mortgage by splitting the property with my parents, allowing us to invest in barns and tractors, not to mention quit working full time off property. My wife could run a small agri-tourism bed and breakfast for extra income until my daughter is old enough to rent the space from us. We could have a small farm-to-table cafe or bistro (also not permitted in the ALR without alcohol production facility).
The icing on the cake is insurance. Secondary dwellings are permitted on rural acreages outside the ALR. This means you can insure secondary dwellings for replacement. This is a point that must have escaped the ministry when drafting Bill 52, or at least I hope it did. If your property is inside the ALR and you lose your secondary residence to flood or fire, you cannot replace it. Bill 52 has removed the right to a secondary residence and the right to rebuild or replace your existing one. If you spent $300,000.00 in 2017 on a beautiful modern mobile home for your grandmother to live in, as of 2018 you had no right to replace it. You can only insure the residence for a diminutive monetary value much like the ‘blue book’ value an auto insurance company would pay out for a vehicle that has been written off. The same issue would apply to a larger farm that was approved by the ALC for a secondary home to accommodate seasonal workers. They are not approved to replace the structure in the event it is destroyed. Why would these farms build suitable accommodation for their farm workers if it is non-conforming? If landowners were aware that their 2016 addition of a secondary manufactured dwelling would be outlawed in 2018 do you think they would have gone through with the construction?
One question I have that is yet to be answered is that, if my permanent primary residence were to burn down tomorrow, would my secondary manufactured home become my primary residence? We have an old, manufactured dwelling that is all but condemned and we have a permit to demolish it. If my home burns down tomorrow will that old mobile become my new ‘primary’ family home? That would in essence make my current family home also uninsurable as to replace would require a Non-Adhering Residential (NAR) application to the ALC.
Insurance aside, a huge obstacle for farmers and landowners is that clear guidelines do not exist to present a path to the approval of an additional residence. Municipalities have clear guidelines explaining what is needed for the approval of a residence. It is in building codes and land use documents set in stone.
After reviewing the ALC NAR decisions (2019 & 2020) via their public portal, it would appear that they did approve 70% of applications as often touted by the Minister of Agriculture; however, her frequently used catch phrase ‘all you need to do is apply’ does not necessarily apply to all scenarios. Most applicants had farm status and most approvals were granted to larger farming operations that were already established. Smaller non-status farms and applicants applying to house labourers for the establishment of a farm were often refused. After submitting a request to the ALC, applicants waited an average of 119 days for the commissioners to reach a decision. As mentioned before, there are no clear guidelines to gauge if your farming operation justifies the need for an additional residence manufactured or permanent.
70% of the NAR applications were approved; however, on closer inspection, many of these NAR applications were not even applying for additional residences. Some applicants were requesting renovations and additions to existing dwellings, or conversions of old farm buildings to accommodate farm workers. Many applied to reside in manufactured homes while their new homes were being constructed, only to be removed, demolished, or converted to farm housing once the new house was completed. I find this to be absurdly wasteful considering all the British Columbians caught up in the housing crisis.
The biggest take away from reviewing the data is that whatever the approval rating is, it is currently completely irrelevant. The implementation of Bill 52 has been delayed on three separate occasions due to the outcries of the ALR community. This resulted in six public engagement meetings around BC and finally on 27 January 2020, the release of the policy intentions paper on residential flexibility in the ALR. That was a year prior to the writing of this article. The policy is yet to change, although the full implementation of Bill 52 has been pushed back to 31 July 2021 to allow more time to correct the flawed legislation. If nothing changes between now and then, will the NAR decisions continue to maintain 70% approval?
The agricultural land commission act used to have far more supports in place to help farmers weather the storm. It was certainly in their best interest to support these family farms to protect vital food supply chains and to be less reliant on importing food. Some examples of supportive legislation that previously existed, which were called the “Four Pillars of the ALR”, have been listed below:
- Farm Income Assurance Act – Provided assurance that the cost of production would always be met by any bona-fide farm or ranch operator
- The Agriculture Credit Act – Provided government guarantees for agricultural loans and provided farm mortgage interest rebates
- The Farm Product Industry Act – Provided the development and promotion of, and the adding of value to agricultural products
- The Agricultural Land Development Act – Encouraged the development of, and improvement of farmland through incentives such as long-term low interest loans of land clearing, well drilling, drainage and other farm improvements
Farmers in the early 70s did not want to be subject to the restrictions that came with the ALR/ALCA. They did not vote on it; rather, they were forced into it. The four pillars of the ALR were supportive legislation likely used as a selling point to prevent farmers from protesting the changes. Fast forward nearly 50 years, and farmers no longer have the support of the four pillars and are faced with far more challenges. International imports are driving food prices downward, insurance premiums are skyrocketing, natural disasters and climate change are devastating crops, and now they have a global pandemic to navigate. Sadly, as a result, many farms in BC do not stand the test of time and are forced to sell.
When Bill 52 was rolled out the first time in 2018 prior to the public outrage and eventual roll back, the Minister of Agriculture made a statement to media regarding the legislation: ‘It makes it clear that land in the ALR is for farming and ranching… not for dumping construction waste and building mega-mansions’. I personally commend her for addressing dumping on the ALR and in parts of the province the monstrous mega-mansions were an issue. I personally have no problem with the floor area limit of 500 square meters. Clearly, land in the ALR is for farming, but not family farming. The legislation hampers family farms, prevents succession planning and removes the freedom and flexibility needed to make farming viable. Farmers need the option to share their property and mortgages with family, run agri-tourism rentals, host events on their land and manage small farm to table bistros. These options are what is needed to grow a farm business and better prepare for a bad growing season or pandemic for instance.
If you look at the 1973 Land Commission Act Section 7 entitled objects and powers, there are some key differences from the current ALC act. 1) It is the object of the commission to; (B) Encourage the establishment and maintenance of family farms, and land in the agricultural land reserve, for use compatible with the preservation of family farms and farm use of land. If you now compare it to the current version, it seems to be a bad metaphor for the current state of the ALR; the land is still there but the family has been removed.