The District of Lake Country is contemplating its options while the Kelowna Ogopogo Radio Controllers Association says it was a just verdict when the B.C. Court of Appeal reversed a court decision that had grounded the flying club from operating on a piece of farm land protected under the Agriculture Land Commission.
The B.C. Court of Appeal released its decision Tuesday, over-turning a B.C. Supreme Court decision that said the club couldn't operate on the land because it wasn't a use that was complementary to agriculture. The appeal court ruled that operating the model aircraft on land within the ALC was a permitted use as set out in the ALC bylaws.
"The chambers judge unjustifiably restricted the ambit of the zoning bylaw’s "farm" classification to activities directly associated with agriculture," read the ruling. "Properly construed, the “farm” classification permits complementary uses suitable to an agricultural setting. This includes activities not directly associated with farming but conducive to the setting in the sense that they do not disrupt or change the essential agricultural character of the land. The club’s model aircraft flights fall within this category and consequently constitute permissible secondary use of the farm land."
Lake Country mayor James Baker says he's frustrated and disappointed by the ruling.
"It's quite the nuisance," he said. "The club doesn't seem to have any appreciation that maybe not everybody thinks buzzing airplanes is a wonderful noise. It's disrupting the peace and enjoyment of a single family residential area and is detrimental to agriculture."
The remote control club was originally granted the right to fly on the land in question—a 20 acre parcel of private land the club leases—before Lake Country shut it down, citing its bylaws. Baker says at least one agriculture operator has been negatively affected and the district continues to receive complaints. But club president Todd Davis says it's only a few people who don't like the club operating in the area.
"This all started with a not in my backyard kind of attitude," said Davis. "Most of the neighbors I have talked to really like us there. There are only a select few that are against us. You talk to most people around and they love the air show."
The original court case centred on the club's use of an unpaved airstrip on the property. Both the ALC and the Lake Country bylaws have among its uses for farm land an unpaved airstrip. Lake Country argued that the bylaws meant uses associated with farming while the remote control club maintained the bylaw was broad enough to cover other associated uses such as weddings and social events and should also include remote control flying.
After the Supreme Court ruling in Lake Country's favour in October of 2013, the club was asked to leave immediately and had been looking for other areas to fly in. While the appeal was underway, the club continued to use a portion of the property on a month to month basis.
Davis admits the land in Lake Country isn't ideal for the flying club, which originally operated near Sexsmith Ave. in Kelowna in the late 1970s, then moved to Black Mountain before taking up residence in Lake Country three years ago.
"The residential area behind (the current fly zone) is closer than what I would normally have looked at for a flying site," said Davis. "But with all the urban sprawl in this valley, trying to find a property that is flat with no trees and a land owner who will let you is difficult. Right now (Lake Country) is our home and we will treat it as such and try to be as good of neighbors as we can be."
The model aircraft operated by the club and its members and visitors range up to 35 kilograms (77 pounds) and are radio and WiFi controlled fixed wing model aircraft and helicopters. They are propelled by electric motors and internal combustion engines.
Mayor Baker said it's unclear what the district's next step will be, saying they may petition the Agriculture Land Commission to review the proposed permitted uses within its bylaws.
"We still have to have a closer look at the decision and see why it was they ignored the permitted uses in the sense that the ALC meant it be used by aircraft that were complementary to agriculture production, not hobby aircraft that are detrimental to agriculture," he said.