Development

Too Little Too Late

19

First Published on September 28, 2016 Written by Neryl Poole, LL.B.

The municipality recently released a ‘closing summary’ from the Ombudsperson’s office, concluding a complaint launched three years ago by a Bowen resident.  The complaint originated as a result of the 2011-2014 Council’s actions when making decisions behind closed doors about the dock applications at Cape Roger Curtis.  The summary closes this file and dismisses the complaint, but not without reminding Council and the municipality about the importance of openness in public decision making.  The failure on the part of Council at the time to be open about their decision-making around the dock applications resulted in the eventual approval of four docks.  These eyesores mar the “pristine coastline” of the Cape (quote from The Cape on Bowen Development Co. website).

The Ombudsperson complaint focused on a number of decisions of the previous Council relating to the dock applications.  In my view, one of the most significant decisions made by that Council was the decision to close a meeting on June 25, 2012. The information presented to that closed meeting, and an open debate with the public listening and responding, might have influenced Council to take a stand in clear opposition to the docks.  We only knew that Council discussed the dock applications at that closed meeting because of a brief press release issued soon after the meeting.  The press release merely stated the resolution to allow the docks with conditions but gave the public no idea as to why Council made that resolution.

What we did not know, as it was not released until one year later as a result of a Freedom of Information request, was that the municipal head planner had issued a report outlining the reasons for opposing the dock applications and recommending that the municipality communicate its clear opposition to these docks to the Province.  This report cited the environmental protection covenants along the coastline, the provisions in the Official Community Plan for protection of the Cape, the designated park area with public access to the beach, and the longtime public enjoyment of that coastline, etc.

The importance of releasing this report at the time when Council was debating the issue cannot be overstated.  The public had a right to know that its municipal staff had communicated to Council clear justification to oppose the docks, and that the planner was recommending this as a course of action.  This was not legal advice and therefore did not justify its non-disclosure to the public.  Council could still have chosen not to oppose the applications but if the meeting had been open to the public, the public might have understood the reasons why.

The Ombudsperson’s closing summary refers to the municipality’s process as “generally reasonable” and goes on to state that the Community Charter “provides significant latitude for municipal councils to decide whether or not some subjects will be discussed in a meeting that is open to the public.”

The Ombudsperson concludes that the Municipality “appears to” have been authorized to close those meetings to the public and states “We discussed with the Municipality some best practices with respect to the implementation of the open meeting provisions in the Community Charter and drew attention to a guide produced by this office.”  The Council of the day was not following best practices.

Why was this significant?  As many of us remember, there was considerable public opposition to the dock applications.  This opposition was met by statements from Council that they had “no jurisdiction” to do anything about the docks, and that the decision to issue tenures lay solely with the Province.

Why do we know these statements were wrong?  The grassroots ‘stop the docks’ protest group took the initiative to commission an independent legal opinion from an expert municipal lawyer.   This opinion demonstrated that the municipality had the legal jurisdiction to oppose the docks – it simply chose not to.  Not surprisingly, we now have a B.C. Supreme Court decision (Dong v. BIM 2016 BCSC 553), emphasizing that Council does have jurisdiction over docks, stating that the docks bylaw enacted by the current Council is consistent with the Official Community Plan and upholding the docks bylaw that now prevents any future docks at CRC.  Further, Mr. Justice Punnett emphasized that the provisions of the OCP were consistent with prohibition of docks at CRC, stating at paragraph 58: “The prohibition of docks is not incompatible with the objectives and policies . . . of the Official Community Plan.”  Bowen Council had the power, and we had an OCP that provided clear policy guidance to support this community’s opposition to the docks.

So too little, too late – but we still do not know why the previous Council did not oppose the docks.   We are left with the visible evidence of the previous Council’s failure – the broken docks at CRC scar the landscape and cannot be used.  Perhaps nature will have the last word with these docks.

Addendum:  B.C. Supreme Court heard a second case, Zongshen v. BIM  on Sept.1 and 2.  Decision reserved.  Zongshen, an investor in the Cape, abandoned the challenge to the docks bylaw and argued for the right to construct a dock on lot 14, next to the lighthouse.  More wasted, valuable time and public money that could have been avoided if the previous Council had exercised its jurisdiction to do the right thing and oppose the docks when the applications were made.

Democracy and the Role of Courts

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Originally Published Feb.16, 2016, written by Nerys Poole

Uh, oh, I hear you say – “Yawn, this one for the recycling bin.”  “No, No,” I say – “give me a chance.”  Read on before you cast this aside.

As I sat in the B.C. Supreme Court a few weeks ago, listening to the latest challenge to a bylaw of our island municipality, I recalled my introduction to and fascination with administrative law, a required course in first year law school.  Many of my classmates found it incredibly boring but I loved it.  This was the reason I went to law school.  As a mature student, I had chosen to go to law school partly because of my desire to understand our legal system and how it can be used to bring about change in society.   Because of my activism on a number of social issues, I wanted this knowledge: What is meant by jurisdiction? What is fairness in the legal context? What is justice?  Where are the limits of political and judicial power?

Administrative law is based on the principle that government action, whatever form it takes, must be legal, and that citizens who are affected by unlawful acts of government officials must have effective remedies if the Canadian system of public administration is to be accepted and maintained.

To bring this principle back to the case recently heard before the Supreme Court, we have two Bowen Island landowners, Shu Lin Dong and Zhen Wang,  unhappy with the docks bylaw passed by this current Council, applying to court to overturn the bylaw.

What do the courts generally do with such challenges?  Over the years, judges have developed a number of principles when reviewing decisions of elected officials.  Unless there is some major defect in the process leading up to a decision, or the passing of a bylaw, e.g. a failure to give the required proper notice of the public hearing – judges take a very “hands off” or deferential approach to these decisions.  And rightly so.  This, to me, is the essence of our democracy.  We elect people to represent us – whether municipal, provincial or federal.  In doing so, we expect these people to make decisions on our behalf, to follow through where possible on their campaign commitments and not to have their decisions overturned by unelected officials like judges.

You may believe that a bylaw is wrong – that is your right.  But it is not your right to have it overturned just because you believe it is wrong or maybe even unfair to you or your neighbours.  With respect to something like this bylaw, zoning bylaws by their very nature are not fair and treat landowners differently.  I may want to build a hotel on my property or a widget factory, but if my property is zoned residential, I am forbidden from doing so – for very good reasons.  If you as a citizen are unhappy with a decision of your elected official(s), and the decision was passed fairly in accordance with all procedures, your remedy is at the ballot box.  The courts have been very clear about this principle.

To quote a 2012 decision of our Supreme Court of Canada:

“The case law suggests that review of municipal bylaws must reflect the broad discretion provincial legislators have traditionally accorded to municipalities engaged in delegated legislation.  Municipal councillors passing bylaws fulfill a task that affects their community as a whole and is legislative rather than adjudicative in nature.  Bylaws are not quasi-judicial decisions.  Rather, they involve an array of social, economic, political and other non-legal considerations.  “Municipal governments are democratic institutions”, per LeBel J. for the majority in Pacific National Investments Ltd. v. Victoria (City), [2000] 2 S.C.R. 919, at para. 33.  In this context, reasonableness means courts must respect the responsibility of elected representatives to serve the people who elected them and to whom they are ultimately accountable.”

Court challenges may be one way for an angry citizen to express his/her displeasure at what an elected body is doing.  However, the threat of litigation is too often used as a tool to stifle legitimate and considered decision-making by an elected body.  One need only look at the views expressed by one of our councillors during the third reading debate on the docks bylaw (Dong’s lawyer showed the video of this during the hearing), who, despite not being a lawyer, stated: “we know this bylaw will be challenged and challenged successfully.”

These kinds of threats have a real chilling effect on municipalities like ours where taxpayers often end up paying the costs of litigation even when the municipality is successful.  A good example of this is the Duntz & Underhill v. BIM lawsuit, a challenge to our Official Community Plan that was heard by the Supreme Court in 2011.  The court dismissed the challenge and awarded costs to BIM just prior to the 2011 election.  Despite this, the newly elected council of 2011 made a decision to waive the collection of these costs and they were never collected.  Even when the successful party collects costs, they rarely represent the actual legal costs of a lawsuit.

The threat of litigation should never be a deterrent to a duly elected Council in its decision making.  Yes, the Council should be making any decisions with full legal advice but should not back off in the face of such threats.  I applaud our Council members who voted for the docks bylaw.  I look forward to the outcome of the Dong lawsuit.  Mr. Justice Punnett heard the case on February 1 and 2, 2016 and reserved his decision.

Submitted by Nerys Poole, a retired lawyer who practiced constitutional and administrative law

Crippen Park and Development of Lot 3

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Originally published November 22, 2015 written by Denis Lynn

On 4th November 2015, Edna Thomson (Vol. 17, Num. 21) expressed concern that development of Lot 3 “would really mean the eventual loss of possibly the entire Crippen Park” as a consequence of  “weakening (the trees) via the loss of their root systems and complimentary structural support systems”. We are beginning to understand that the trees in our forests are indeed intimately connected, not by roots but by a complex network of fungal mycelia, which provide nutrients and water and transmit chemical signals between trees. Damage to these mycelia could indeed impact the health of the trees. Nevertheless, we should remember that much of the present forests on Bowen has regrown following significant logging in the early 20th Century. This regrowth is possible because ecological systems have evolved over millions of years to respond to changes, often catastrophic. An ecologically significant catastrophe in recent times in the Pacific Northwest was the eruption of Mount St. Helens on 18th May 1980. Its steamy blast blew down and scorched forest over more than 500 km2, leaving a seemingly lifeless landscape. And yet, these ecosystems are recovering. What is it about the behaviour of ecosystems that enables this recovery?

In 1973 Prof. C. S. Holling, University of British Columbia, proposed two kinds of ecosystem behaviour. One he called stability – “the ability of a system to return to an equilibrium state after a temporary disturbance”; ecosystems that rapidly return to the equilibrium state are more stable. The other he called resilience – “a measure of the persistence of systems and their ability to absorb change and disturbance and still maintain the same relationships between populations”.  Prof. Holling discusses the spruce budworm community in eastern North America, which is a highly resilient, but unstable, community, characterized by periodic outbreaks and a sequence of recovery steps that leads to the next outbreak.  Another example he mentions is the response of Wisconsin forest communities to fires – over time since the fire they “reconstruct” themselves until the next fire starts the process all over. To these, we might add the response of forest communities in the Northwest to fire and volcanoes.

The long-term study of the forest and other ecosystems after the Mount St. Helens volcano has lead to some important and unexpected findings. The timing of the eruption was significant – an early spring morning meant that nocturnal animals, like mice, were in their burrows while spots covered by spring snow and ice were protected from extreme heat, permitting seeds to survive and colonize the more impacted habitats. The number of ponds and lakes increased as lava flows and mudslides blocked rivers and streams, creating new aquatic habitats. Surprisingly, amphibians and other organisms rapidly colonized these, so that lakes and streams are again showing communities typical of this forested region. Terrestrial habitats have been slower to recover, although there is greenery covering most of the blast area. This vegetation has provided habitat, even in the significantly disturbed areas, to support the colonization by almost all small mammal species of undisturbed forests. On the other hand, the return of bird species has lagged correlated with the slower recovery in structural complexity of forest habitat.

As Bowenians, we can appreciate this slow recovery as the forests that we value today have taken years to recover from earlier deforestations. Mount St. Helens has provided another lesson here, for the quantity of living and dead trees remaining in areas has significantly influenced the rate of recovery of the forested areas. These “biological legacies” now provide a management tool for some foresters who, rather than clear-cutting for logging, will leave a certain portion of standing trees – a biological legacy – to enhance the recovery. The biological legacies left by Mount St. Helens and by typical forest logging practices are probably much less than 20% of the original forest. This impact of biological legacies has been modeled and shown to increase the resilience of forest ecosystems to the impact of fire, even when about 20% of the forest is left in remnant patches.

Lot 3 runs along the east side of Miller Road and behind the RCMP Detachment, north and east from the Trunk Road, for about 300 m. If all trees were logged from this lot, it would represent, I believe, about 20% of the area of Crippen Park between Miller Road and Cardena Road, leaving 80% of the forested area untouched. While this would be a significant “empty space”, it hardly approaches the 20% or less of the forest left standing by logging operations or volcanic eruptions. I would guess that Edna Thomson is correct that the trees and shrubs bordering Lot 3 would be impacted. However, as a biologist, I am confident that the 80% of forest remaining would be very resilient to this disturbance, and that the future of Crippen Park is not in danger.

Further Reading: Dale, Crisafulli, Swanson. 2005. Science 308:961; Holling. 1973. Ann. Rev. Ecol. Syst. 4:1; Seidl, Rammer, Spies. 2014. Ecol. Appl. 24:2063.

– Denis Lynn

To Mayor and Councilors,

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Originally published November 4, 2015 written by Edna Thomson

Our recent past council focused their attention on Lot 2 of the community lands.  They succeeded, just immediately before a new election in November 2014, in gaining bylaw approval for Land Use rezoning to change from  “village/residential/institutional” to “village/commercial/institutional” for the area.
Their purpose for doing this was to accommodate sale of Lot 2 for subsequent development for an extremely extensive and density-ambitious proposal.
Lot 2 provides many important ecological functions:  it is a wooded area that the wildlife, the birds, and the children benefit from.   Lot 2 is land that lies next to the school campus, and as well, it has a very steep slope at its eastern border.  The many trees provide a root system that acts to absorb water, and hold the bank, while their branches provide the carbon sink that keeps the air fresh. That steep slope is also directly behind about 12 properties that benefit from the sound buffer provided by the trees.  Similar, and some, ecological benefits apply to Lot 3.
Recently, November 2014, islanders elected a new council with the expectation of full and transparent planning and inclusion of public input in accordance with democratic principles of government for and by the people.
Our current council took immediate steps in addressing many previously expressed concerns of the good citizens of Bowen; and good things began to happen.  As for example, Council declaring, “The right of local residents to a healthy environment.”  Part of that decision states, “…the rights of every resident to participate in decision making that affects the environment.”
That sense of security, resulting from those commendable steps taken, seemingly announcing  ‘participatory democracy’ in action on Bowen, has been disappointingly damaged though, by the summer ‘charge ahead’ approach.  Unexpectedly, this was evident in the proposal for, first, a new fire hall complex, AND then, ALSO a parking lot; all on Lot 3.  Disturbing evidence of that approach has been the immediate “site suitability testing” for the Fire Hall complex, (mid July).
Equally astonishing, and while discussion was still taking place regarding a parking proposal on Cardena Dr., work was seemingly started at the proposed entrance site for the proposed parking lot in Lot 3.  Entrance and exit in-roads that are in the design, (as posted recently by council) to go on either side of the mailboxes off Miller Rd. would require moving the mailboxes.  This actually WAS DONE on September 17th. . No signage was provided at Lot 3, as was done at Cardena.  Why?
A “BIM Plan Park Update,” recently introduced, when eventually effective, would of course, be too late to have Lot 3 of Crippen Park given the consideration it deserves, if it isn’t left standing!
Here is my belief: First, it is that the principles of democratic governance must take precedence over any development proposals, and thus council needs to provide adequately for fair and complete opportunities for public input.   Second, it is for acknowledgement of the concerns already expressed in two letters put to council regarding development on Lot 3. And, 3rd, it is for signs that show the plan!
In those letters, the concerns expressed are regarding the two proposals under consideration. Should either or both be adopted, it would really mean the eventual loss of possibly the entire Crippen Park park.  The number of trees that would have to go down for construction, promises that, by extension, others would follow simply through a weakening via the loss of their root systems and complimentary structural support systems, and through probable damage to the root systems of trees left standing during the construction period. And, there would be subsequent predictable loss through the advent of windstorms, and heavy snow falls on those left-standing, weakened trees.  All of those forces, and simply ‘over use’ of a damaging potential, would complete the rest of the destructive process that will have been set in motion.
I request the application of fundamental equality in the observance of citizen’s rights. And, it is for serious, open discussions as to how the benefits versus impediments to Bowen’s future would be affected by the developments proposed for Lot 3.
I ask that Council please open up to the community of Bowen, adequate discussion opportunities as to the the worth of Lot 3, as a carbon sink and an important service-providing intact natural environment of enormous eco-value, a wildlife sanctuary, and a thing of beauty and enjoyment at the entrance to what many describe as a living, breathing island paradise.
What we need now is less pandering to outdated concepts of how to ‘develop’ in the Cove. Now it is important to get educated and more able and ready to meet the new challenges of a changing climate. Equally important is embracing input from the larger community into ALL development planning that would so dramatically affect the island entrance area.  In the interests of a healthy environment that supports the rights of citizens to that environment I’m asking that, now, more than ever, the concept of the Islands Trust mandate to protect and preserve be our banner.

– Edna Thomson

NAPTEP and Bowen Island

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Originally published June 30, 2015 written by Peter Frinton

Ask Bowen Islanders about NAPTEP and you will likely get either a quizzical look or allusions to diapers and sleeping aids.

In reality, NAPTEP is an acronym for Natural Area Protection Tax Exemption Program, a voluntary conservation incentive found only in the Islands Trust area.

Under NAPTEP, landowners may apply to permanently covenant eligible portions of their land in exchange for a 65% reduction in property taxes on those areas so protected.

Owners cannot disturb NAPTEP lands through such things as construction, vegetation removal or terrain alteration.

Since its inception ten years ago, about 25 parcels of land have  successfully entered the program, and are administered by the Islands Trust Fund.

However, it has hitherto been unavailable on Bowen Island. Due to quirks in the original drafting of the covering Provincial Act, island municipalities were not included. That was amended by order-in-council in 2012 and subsequently approved by Metro Vancouver.

But then it hit a brick wall, as the previous Bowen Council rejected its adoption here despite ‘support in principle’, for what can only be viewed as ideological resistance. The fact is, Bowen has nothing to lose by welcoming NAPTEP as a land conservation initiative. The tax shift from a property registered would average about $1 for each of Bowen’s 2200 folios.

Now it is back for review and likely adoption. Trust Area Services Director Lisa Gordon addressed Council as a delegation in late May, and answered questions on program details. She characterized NAPTEP as “difficult for landowners to get into, difficult to get out of”. Lands for inclusion must have significant ecological value, not be in the ALR or developed in any way. There are fees, assessments and species inventories plus legal surveys. Costs to the applicant can approach $10,000, and to remove land from NAPTEP at some future date would require both paying all back taxes plus receiving assent from Islands Trust and BIM (if Bowen Island Municipality chose to co-sign as a covenant holder). So- not for the faint of heart, but a nice way to rule from the grave.

Lisa Gordon suggested that Bowen Council may wish to put limits on either the value or number of parcels accepted into the program. Other islands haven’t done this (and none have been overloaded with applications). However, Bowen’s incorporated status creates a direct local tax impact, whereas other unincorporated islands come under the provincial rural tax, so the tax shift is dispersed among a much larger inventory of properties.

Still, the cost to individual taxpayers on Bowen would be a very minor peril. Compared to ecological gifting, something done at least twice on Bowen, the cost is miniscule. As well, there are no land use offsets so often associated with conservation tools, such as park dedication or other amenities in exchange for subdivision and additional dwellings.

It will be interesting to see how quickly this comes to a vote, and whether it will be unanimous. Alison Morse was against it last time around, but the optics of her opposing it now that she is again a sitting Trustee would be somewhat akin to a church minister declaring a disbelief in God.

As Lisa Gordon said in her presentation, we (Bowen) already pay for the program through our contributions to Islands Trust; we may as well take advantage of it. All administrative costs and the bulk of staff time needed accrue to the Trust.

I do hope this gets through expeditiously. It represents a truly positive and measurable benefit of being within the Islands Trust federation. Plus, it’s pretty easy for Bowen to get onboard. After all, the program is up and running, it works, and has been well received on the other islands.

It’s time to relinquish our status as the last hold-out.

– Peter Frinton

In the Neighbourhood

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Originally posted June 3, 2015 written by Lesley Gaunt

“…and there’s always construction work bothering you in the neighbourhood…“
(Tom Waits).

Disputes between neighbours are nothing new, not in Canada, not anywhere else in the world. The libraries are full with case studies and history is replete with famous examples of warring neighbours.  The massacre of the Donnelly family, in the township of Biddulph (near London, Ontario) by an armed mob may be an extreme example as this immigrant family from Ireland was bludgeoned to death by their neighbours on February 4, 1880.
More commonly and closer to home many of us will have had occasional problems with neighbours involving noise, untidy premises, dogs, fences, trees and hedges, second-hand smoke, water issues, or trespass.
For most of these conflicts there are bylaws in municipalities that deal with these types of problems. Also on Bowen. The extensive catalogue of Bowen Island Municipality’s (B.I.M.) bylaws and policies is an interesting read and contains, amongst others, a noise control bylaw and a noise control bylaw exemption policy, a dog bylaw regulating leashes and poop pick-up, a heron nesting policy and numerous water system bylaws.  There is no shortage of regulation on Bowen Island and in all likelihood typical neighbourhood disputes can be referenced to precedence, an applicable bylaw or policy.
Of course, in most cases, it is advisable to first try talking to the neighbour that causes the problem. After all he or she may not be aware of the effect they’re having on their neighbours and talking to them may solve the problem. However, if speaking with your neighbour is not possible or if speaking has not solved the problem, there are always other options.
Usually I would not have thought about the brewing dispute between Cape on Bowen (C.O.B.) and several property owners and dock proponents at the Cape and B.I.M. as a neighbourhood issue.
I do not agree with C.O.B.’s views and more docks at Cape Roger Curtis (C.R.C.). But I get it. Mr. Ho may have painted himself into a corner.  As President of C.O.B. he is accountable for the shareholder value and to C.R.C. property owners to deliver on the terms and conditions agreed in their purchasing agreements.
On the other hand, our municipality has a mandate to uphold our community values and to protect the public interest.
C.O.B. and C.R.C. owners threaten to sue. In their perception of reality the public interest in an undisturbed shoreline doesn’t measure up to corporate and private interests in maintaining high property values. The bylaw draft is labeled unfair, prejudiced and threatening the annihilation of newcomers. No doubt, strong words, but I get it.
I believe in justice and when it comes to litigation I like to remember Mark Twain: “It’s not the size of the dog in the fight, it’s the size of the fight in the dog.” So sue if you must. Business as usual.
The matter becomes personal when we are being told that protecting public interests on Bowen Island is not neighbourly.
Mr. David Chen of CNS Law Corporation spoke on behalf of Mr. Shu Lin Dong and Ms. Zhen Wang, the respective owners of lot 17 and Lot 3 at C.R.C. Basically his clients wanted him to address two things: ”…
one is called neighbourliness and the other is simply unfairness of the proposed bylaw…” He continues: ”Throughout the discourse of this dispute, my clients Mr. Dong and Ms. Wang, have only been referred to as property owners at Cape Roger Curtis or tenure applicants. I submit that those words they annihilate a person…” Mr. Chen goes on to remind us: ”They are in fact your neighbours, they are newcomers, and they are moving into the neighbourhood of Cape Roger Curtis.”
Being patronized by one of the legal representatives of CRC property owners on our neighbourhood values is condescending. His statement is designed to shame us all into submission. It is designed to create confusion and clouds the issue at hand by personalizing it. All of a sudden I feel that I am being accused of being unfair, prejudiced and plotting the annihilation of newcomers. And so are you and so are your neighbours.  We are all being patronized and moralized. And painted in a bad light.
In my life I have moved often and lived in many foreign places including Belgium, Germany, the Netherlands, the UK, China and Singapore. Each move made me a newcomer. After a while I picked up some of the do’s and don’ts of that role. “Take some time to absorb the new culture”, usually served me well.
As far as Bowen Island goes, our neighbourhood values are robust. The community is resilient and respectful of the rights of others. We know who we are and we look after each other.
“It seems that often when problems arise our outlook becomes narrow“ (Dalai Lama)
There will always be differences in the neighbourhood. Solutions can be found or forced in different ways. In my experience mutual respect, kindness, honesty and genuine consideration go a long way.

– Lesley Gaunt

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