Lincoln public nuisance bylaw tackles cannabis odour

By Tristan Marks
NewsNow

The Town of Lincoln’s new nuisance bylaw is an example of “a small town thinking big,” says Coun. Mike Mikolic.
Lincoln council passed a comprehensive nuisance bylaw on Monday, which set fines and procedures for everything from knocking over waste containers to ‘light trespass’.

The portion of the bylaw that received the most discussion at the preceding week’s Committee of the Whole meeting dealt with odour nuisance, particularly odour caused by cannabis grow ops.

Municipal law enforcement manager Mike Barkway said this will give Lincoln bylaw officers “several authorities” via the Municipal Act to deal with complaints of cannabis odours coming from grow ops.

According to the new procedure, once the Town’s bylaw office receives an odour complaint, it will review it and then assign an officer to investigate. That officer will then visit the site several times at different parts of the day to determine the source of the smell.

“The officer wouldn’t be able to, by the complaint on its own, say that the smell is coming from this property or x property or y property,” said Barkwell, explaining the need for multiple visits.

Once the property causing the smell is properly identified, the officer will inform the owner of the complaint, and can request they install better odour mitigation or serve a noxious odour order. In the latter case, the property owner then has a set period of time to fix the issue or else the bylaw officer will charge them with a proposed fine of $500 for failure to comply. From there, the officer can keep periodically checking in on the property and charge them for every new instance of non-compliance.

Coun. Paul MacPherson said he was pleased with the bylaw as a whole, but pointed out that the bylaw had to make exemptions for “normal agricultural use” as defined by the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA).

“So to clarify: if we have an odour issue at a cannabis facility and we go through this process, is there a point where a facility can lean on OMAFRA to support them in challenging the bylaw?” asked MacPherson.

Barkwell explained that OMAFRA could not challenge or strike down the bylaw, but would rather decide on a case-by-case basis if a grow op could be considered “normal agricultural practice”.

Furthermore, director of planning and development Matt Bruder said that constant cannabis cultivation and harvesting “goes beyond what those normal farming practices would be.”

“When we drafted up this bylaw, we tried to recognize that there are those normal farm practices,” Bruder said.

“But it’s not normal if something is repetitive and goes beyond normal farming seasons.”

Coun. Adam Russell asked if the bylaw could be applied to the odours caused by someone smoking cannabis or from the smell of plants being grown for personal use. According to federal law, any resident may grow up to four cannabis plants for their own use.

Barkwell explained that the bylaw cannot apply to anything “trifling in nature”, although smoking cannabis could be charged in certain instances under existing smoking bylaw.

Furthermore, he said the Town’s “hands were tied” in going after cannabis plants grown in a resident’s backyard as long as it was four or less plants.

“It’s no different than having a mustard plant growing in your backyard,” Barkwell said.

Mayor Easton expressed her disappointment that the bylaw was complaint-driven.

“I do not want to see the citizens of Lincoln carrying the full responsibility- or any appreciable responsibility-for other people’s aberrant behaviour,” Easton said.

She said she preferred if the Town’s bylaw officers actively patrolled Lincoln to search for any offending grow ops.

However, Barkwell said this kind of action would go beyond what is possible.

“There needs to be a complaint to get the process started otherwise we are acting outside the public nuisance portion of the bylaw,” Barkwell said.

He noted that, in the case of an illegal grow op, there would be a criminal investigation led by the NRP, with constant contact with the bylaw office.

The motion to approve the bylaw passed unanimously.

It also provides proposed fines for “light trespassing”- nuisance caused to a residence by light shining from a neighbouring property- as well as attempts to knock over mail boxes, porta potties and similar installments.

With the bylaw passed, the schedule of proposed fines will next go to the Ministry of the Attorney-General’s office for review.