Landowners plan legal action - Proposed Bylaw No. 3474 sparks notice of challenge to three CRD directors (02/13/08)
Farm gate fiasco for some: Farmer feels over-regulated and under-appreciated (02/13/08)
CRD OCP amendments concern landowners and developers (01/30/08)
Petitioners explain reasons for court action (04/05/06)
Setback issues continues (03/08/06)
To: The East Sooke Planning Committee (11/04)
B.C. Supreme Court to review contentious rural land use bylaw (09/15/99)
Land-use bill could be costly' (08/15/99)
The BC Landowners Association, whose purpose is to protect property values and homeowners’ rights, passed a motion to take legal action against the Capital Regional District and particularly those involved in what they call an illegal vote buying process.
Their action is taking place because they see injustice and irregularity in the way land use issues are dealt with in the Juan de Fuca Electoral Area. Currently, the mayors of Metchosin and Central Saanich vote with Regional Area Director Erik Lund on land use issues in the Juan de Fuca Electoral Area.
A change was made in the voting structure and the mayors of Metchosin and Central Saanich paid $100 to vote along with Lund on land use issues in the Juan de Fuca Electoral Area. Previously five directors in the five districts closest to Juan de Fuca voted.
“The issue is the $100 vote buy-in,” said Brian Henson, a former CRD director. “It was an illegal process, I don’t think this is right. We used to have five votes.”
The landowners feel their rights have been taken away and the politicians are not listening to them. They see problems with what they are calling down-zoning in the rural areas and the implications of Bylaw No. 3474 set to go before the CRD board on February 13.
“The politicians don’t represent us anymore,” said BC Landowners Association president Al Jones. “It’s not democratic. We are not developers or deep pocket people, we represent integrity and fairness.”
Greg Best, from East Sooke, said it is the “defining moment for rural property owners.” He said people would not be allowed to subdivide or strata-title their lands once the bylaw gets adopted.
Others said people did not realize all of the implications of the proposed bylaw.
“We will see our property taxes go up and up and up, and you cannot subdivide if you are not in the settlement containment area,” said Best. “No matter how much we say or do, we are not being listened to.”
He said that with just one director for the entire Juan de Fuca Electoral Area they have no chance at all.
“What can we do?” he asked, then answered his own question by saying, “take legal action.”
Discussion revolved around making a case to the provincial ombudsman, the absence of a grandfather clause, the Official Community Plans and finally what steps need to be taken.
Bruce Lemire-Elmore said Lund was using the anti-Western Forests Products land sale to push the bylaw through for fear of developers taking over the forest land.
“There is no need for broad brush strokes, they don’t need to do that, it’s unreasonable and it affects so many people and there is no public gain through that,” he said.
The association plans to go after all those involved, including the planners.
“There are better ways than being punitive on rural landowners,” said Best. “This is ridiculous what is going on.”
Brian Henson summed up the meeting by saying, “it is ironic that in 2008 we are in the Legion voting for our rights.”
Ellen Lewers lives along Sooke Road and runs a small hobby farm. She sells eggs at her farm gate in Saseenos and raises chickens and goats for meat.
Her three plus acres are abundant in fruit and nut trees, she plants a large garden and her chickens and goats have free range on the rolling property.
She believes in local food from local sources and will not buy any of her food from China or India. She grows as much as she can and buys as little as possible.
She feels over-regulated and under-appreciated for her labour of love.
As a member of the Official Community Plan committee, she wants to see change and she wants some say in how the district defines her community.
She has issues — lots of them.
When she bought her property she assumed she would be able to subdivide it into a couple of one-acre parcels. Now she can’t, with Sooke’s new zoning bylaws property owners cannot subdivide on properties less than four hectares (9.8 acres). Her property is zoned agriculture - RU3.
“We are left in the lurch,” said Lewers. “This (zoning bylaw) has affected all the property out this way.”
She can apply for farm status providing she has at least two-and-a-half acres in production. She said BC Assessment is currently checking out how much land is in production for those with farm status.
“What are they doing?” questioned Lewers. “I don’t know.”
She said there is a push on to grow local and now there seems to be two opposing forces at play.
Making it running a small hobby farm is getting more difficult said Lewers.
“They’re putting the boot down on small hobby farms,” she said.
She sells about three dozen eggs a day and that doesn’t come close to paying the costs associated with raising her 60 chickens.
“Half are stolen, the other half the government gets.”
Now, with new government regulations, people raising animals have to have their meat inspected before they go to a slaughterhouse.
“You can’t sell meat without a government inspection, the regulations are so cumbersome.”
She had to take her chickens to Duncan for slaughter and the cost came in at $3.50 plus tax per chicken. Add to that the cost of fuel and her 12 chickens cost her an estimated $65 to butcher. Red meat is the same with a minimum cost for slaughter in Metchosin at $45 per animal. In her case goats.
“What are you going to sell them for,” she asked. “People are going out of it and getting rid of animals.”
The costs are mounting and Lewers cites the new district business licence fees, water costs and the new no-burn policy.
Lewers does about 10 burns a year on her property, mostly to get rid of old animal bedding and pruning off her 100 fruit and nut trees.
“See how ridiculous it’s getting?”
Even fish is impossible to get these days said Lewers. In years past Lewers would get fish by trading now all fishers have to go to Vancouver to unload their catch.
She said even the fishers’ wives cannot get fish.
“We are over-regulated. It is knocking the wind out of everybody. It’s not easy and there’s no money in it. It’s sad, people won’t have access to good food.”
For Lewers ultimately it is a loss of heritage, culture, nature, land and animals.
“It is more than an invasion of privacy, it is an invasion of our culture — it is part of our nature and to have somebody come and rip away clawing at your life, it’s the last straw.”
About 40 citizens were on hand for a public hearing on January 21 at the Otter Point Fire Hall. The issue which drew them in is an amendment to the district’s official community plan, proposed by the Capital Regional District.
“The purpose of the amendment” according to CRD documents, is to “restrict subdivision, particularly in the areas outside the settlement containment area.”
The amendment indicates the desire to locate intensive development within settlement containment areas, and that the desired parcel size for residential subdivision therin be maintained at one hectare (2.5 acres). A new policy is suggested concerning land outside the settlement containment areas – in the Forestry and Rural B zones – that new parcels should have a general minimum size of 120 hectares (296.5 acres).
A majority of those making statements at the hearing were opposed to the OCP amendment.
Property owner Colin Corby said the amendment would “negatively affect our lands,” adding that, in many cases, land had been purchased dependent upon what could be done with it in the future. He said a restrictive bylaw would limit the options of those who own property in the area.
A “more comprehensive approach” by the CRD was encouraged by Marlene Van Baalen, speaking on behalf of the Canadian Horizon Land Investment Corp. of Vancouver – owner of about 500 acres in the vicinity of the Otter Point Fire Hall.
“I don’t think the proposed amendment will stop development,” asserted Heather Phillips.
Al Jones speaking on behalf of the B.C. Landowners Association said, “we absolutely disagree with this amendment,” he said. “We’d like to see the roughly 200 properties that are in the Otter Point Area grandfathered into the old bylaw.”
Jones told Juan de Fuca regional area director Erik Lund the amendment basically takes a lot of value from people who have bought property here in good faith over the last 25 to 30 years. “You’re just pulling the rug out from under us.”
Jones lamented the public hearing structure and took the CRD to task on the procedure.
“It’s just not fair,” he stated. “You have these public meetings but you never take any input from the public. You pretty well have this rubber stamped at the CRD offices in Victoria.”
Developer Ender Ilkay who has set about to purchase about 6,300 acres in the region from Western Forest Products, asked why an amendment was needed for a six-month-old OCP. He expressed the opinion that the amendment would impede his plans for the property. He described the actions of the CRD in this regard as “hostile.”
“When I entered into an agreement to purchase these lands I stated my intention was not to develop under the current zoning,” he said. “The only way development can occur is through a rezoning. The only way rezoning can occur is through public consultation.”
Ilkay pointed out how the size and location of trails and parks were also prime items of concern for the public. He claimed the public would be better served if the CRD were to deal with a single party like himself, who is committed to the generous allocation of trails and parkland, as opposed to looking for concessions from a number owners of smaller parcels. He said such a situation could likely mean an assortment of landowners could each dedicate the least desirable pieces of their property for park creation, and the parcels could be scattered across the region in a disjointed fashion.
Speaking in favour of the OCP amendment was Wayne Fritz, as well as Arnie Campbell of the Otter Point and Shirley Residents and Ratepayers Association – who later asserted that if the amendment were to go ahead it would not mean the issue would necessarily be closed. He suggested development-related concerns could still be raised and steps taken by citizens down the road, even if it meant rewriting the OCP.
“No matter how you try and handle land use stuff there’s always someone who’s going to feel they haven’t been heard, or they’ve been slighted or financially impaired in some way,” said Campbell. “I don’t think anybody wants to see people personally hurt.”
Related procedures were to continue as of Monday, January 28 when another public hearing had been scheduled by the CRD at the Otter Point Fire Hall – this one concerning Bylaw Nos. 3495 (forestry), and 3500 – amendment to Bylaw No. 189, which dates back to the 1970s and had pegged a minimum parcel size at about 300 acres in some areas.
The following night at Sooke District Council chambers a public hearing was to take place in relation to Bylaw 3474 (rural zones A and B).
Downzoning of property and the potential of financial loss, due to the newly adopted Official Community Plans, are two of the reasons Grant Wright, Linda Main, Colin Corby, and George Miller filed a Petition to the Court against the Capital Regional District and the District of Central Saanich.
East Sooke resident Grant Wright, speaking from Costa Rica said, "I'm taking legal action challenging the legitimacy that Central Saanich can buy into the Land Use Committee for $100."
Wright also said that if they brought back the Official Community Plans for East Sooke and Otter Point, and revised them to the way they were that would fix everybody's problems. George Miller, from Otter Point, stated that he felt residents were "not being served well by the CRD," and the court action was the accumulation of concerns over the OCPs.
"The new bylaws have caused massive downzonings of properties," said Miller. "Court action has started and we're in real jeopardy. "We will fight to the death over this."
Miller is the president of the Association of BC Landowners. [inset]
Justification for a CRD-proposed zoning requirement for a 30-metre building setback on all waterfront property in this region is apparently in error.
"That may very well be and should be up for discussion as the (zoning bylaw) process continues," said Eric Lund, regional director for the Juan de Fuca Electoral Area. "It is not clear to me because I have not been informed of that fact."
Lund previously stated the 30-metre setback included in a proposed zoning bylaw was a provincial requirement under the Riparian Areas Regulation. That requirement appears to apply only to freshwater streams and lakes, not to oceanfront properties such as those from East Sooke to Port Renfrew.
Lund said Ken Cossey, the Juan de Fuca Electoral Area planner at the time, is the one who informed Lund and the area's Land Use Committee members in late 2004 the 30-metre setback was a provincial requirement.
Lund said he has been talking with Cossey's replacement at CRD - Gerard LeBlanc - since receiving a large amount of correspondence questioning the validity of the setback requirement.
"He seemed to feel that the first decision is correct," said Lund. "There may be a reason why it needs to be 30 metres. I do not know what is wrong with that regulation." Cossey, however, stated Lund's recollections are incorrect.
"I never told anyone that the 30-metre setback was a provincial requirement," noted Cossey. "What I said was the Local Government Act allows you to create the development permit areas, and it is up to the local bodies to decide the setback area. The setback area the various OCP planning committees, East Sooke, Otter Point, Shirley-Jordan River agreed to was 30-metres foreshore area."
Cossey - in an email reply to the Sooke News Mirror - went on to further explain what took place.
"As the area is designated a part of a development permit area, this means that additional information is required from a developer/owner before the development can proceed in that area, it does not stagnate or restrict development," noted Cossey. "The requirements for the designation of the area as a Development Permit area is found within Section 920 of the Local Government Act."
Public groups have picketed in front of Lund's West Coast Road office to protest the zoning proposal, arguing the CRD did not listen to their statements during 2005 public open houses that the 30-metre setback was unfair to landowners with waterfront property. George Miller, head of the Association of BC Landowners, said he believes Lund and the CRD are incorrect in stating the 30-metre setback is a necessity. He said he has reviewed the Riparian Areas Regulation and bylaws of other BC regions and cannot find a single instance where a 30-metre setback is included or required.
Miller said he believes Lund is providing inaccurate information to the public. "We need to make sure what we say to the public is correct," said Lund. "If it is not correct we need to rectify it."
This is in contrast to Lund's previous statements to the Sooke News Mirror where he stated public opposition groups such as Miller's were disseminating misinformation about the 30-metre setback.
Ken Douch, the local CRD Land Use Committee representative for Otter Point, agreed with Lund that Cossey is the one who instructed adding the 30-metre setback.
Douch, a volunteer member of the advisory Land Use Committee, said he went along with Cossey's statement because the CRD planning member is supposed to be the expert who committee members turn to so they can understand complex issues like zoning.
Douch said his understanding from the committee meetings is the 30-metre setback, "is an initiative that is to be brought in federally." He also took issue with Lund's statement no properties are being downzoned if the 30-metre setback is approved.
"If it is not true then the statement of Erik's that we were not downzoned in this process is incorrect," said Douch. Douch is also upset with another zoning bylaw proposal affecting Rural Zone A landowners. Douch indicated he is going to resign from the Land Use Committee if this portion of the proposed zoning bylaw is not changed. He explained this portion of the proposed bylaw affects land he owns and it is his belief he would lose, "hundreds of thousands of dollars," if the land were rezoned.
The Ministry of Community Services is where Official Community Plans are sent for approval. A spokesperson for the Ministry said he could not locate anyone at the provincial level to verify the 30-metre setback is a Provincial requirement.
"To the best of anyone's knowledge there is no direction from anyone about the 30-metre setback," said David Crebo from the Ministry of Community Services.
The issue is at the forefront of community protests, especially with the news the Official Community Plan for Shirley - including the 30-metre setbacks for all waterfront properties - has been approved by Community Services and is now law.
"That has been approved about a week ago," said Crebo. "(The OCP) is a CRD issue and they went through their due diligence."
Crebo said the Ministry of Community Services review of the OCP is not to make changes or reverse decisions unless they contradict provincial law. An issue such as oceanfront setbacks that are larger than provincial law is acceptable. If the setbacks were less than provincially mandated, then Community Services would send the OCP back for revisions. "From the ground up it is a local issue, a CRD issue," said Crebo.
Lund says there is plenty of time to discuss how the zoning bylaw is constructed, although he said he believes a majority of the people in the electoral area do not agree with reducing the 30-metre setback.
"The public process is ongoing, it is a public process, not something some dictator is doing," said Lund. "The OCP is a wish list, the zoning bylaw is the law that makes it happen."
Lund stated the Official Community Plans for Shirley and the Malahat have been approved, while the ones for East Sooke and Otter Point have been, "signed off," by the Ministry of Community Services. Lund said he expects those OCP's to be approved March 8. The next step in the OCP process, Lund said, is for public open houses and public meetings on zoning bylaws. Those meetings are to start later this month.
"The target for the zoning bylaws to be in effect is June or July," said Lund.
Lund said keeping the 30-metre setback may end up being an environmentally good move for waterfront properties in this area. Lund said the proposed zoning bylaw would not prevent construction, but place some oversight in place. Sooke applies a 15-metre setback, and Lund said he was uncertain as to why the difference existed.
"I am not sure except we have a lot of waterfront and a lot of unstable waterfront," said Lund.
He talked about lands in the Shirley area as an example, questioning what would happen if building is allowed to continue with the existing 15-metre setback and no governmental oversight.
The proposed zoning bylaw would have the landowner apply for a permit and if a review determined a need, then geotechnical assessment would be required to assure to environmental damage would occur with the proposed building.
"You need to make sure when you build there you do not damage the environment," said Lund. "What is really wrong with that?"
For many decades, within the Sooke area, we have had Rural A Zoning, which permits 4 homes on a 10 acre parcel. Many families and friends have purchased land and have developed under this zone. Many owners have invested a substantial portion of their capital in their land because they had the right to do so. The arguments for Rural A are:
(a) that a 2 ½ acre density preserves the rural ambience.
(b) that the homes are served by winding pleasant driveways beside the pastures or woods-not by wide paved roads with large ugly cuts and fills.
(c) that the 10 acre lots are self contained-there are no demands for water or sewers.
It is apparent that your proposed zoning bylaw repeals Rural A Zoning. If it is your intention to embark on this negative, harmful course, you should first consider the following facts:
(1) If the owner has built 4 homes on a 10 acre parcel, and you repeal the Rural A zoning to bring in a zone with one home on a 10 acre parcel, then technically all four homes are non conforming. However, perhaps one home could be cited as the principle residence and then three homes would be non conforming. Non conforming improvements fall under Sec.911,Local Government Act which governs your proposed bylaw.
To review a few parts of this very restrictive Section:
911(1)(b) “if the non conforming use is discontinued for 6 months, any subsequent use etc. becomes subject to the bylaw”(this means that the nonconforming home must be abandoned because only 1 home is permitted on that lot).
911(3) states that a building under construction at the time of your new bylaw can be completed (but it is still nonconforming use)
911(5) states that no alterations or additions can be made unless approved by the Board of Variance.
911(8) states that if the building is damaged or destroyed to the extent of 75% of its value above its foundation, it cannot be rebuilt.
In the commercial world, non conforming improvements have their market value discounted (sometimes severely) because of the non conforming status. There is a moral and statutory obligation to disclose the non-conforming status to mortgage lenders and insurers, and this can make it very difficult or impossible to find adequate mortgage funding and/or insurance.
(2) If the owner has not built 4 homes but is intending to build in the future for his children or family members, the rights that he had at the time of purchase are lost.
(3)Your proposed amenity and bonusing means little or nothing because it is discretionary on the part of the CRD and all Rural A is non conforming. Your purpose in reducing the allowable density on what are currently Rural A lots may be to prevent future development of those lots at the 2.5 area/residence density. Two questions arise here.
We have shown above substantial disadvantages for the current and future owners from such down zoning. What advantages come from this change to offset those disadvantages? If your goal is to prevent future developments at the 2.5 acre density (a goal with which we disagree), that goal can be achieved without causing such severe harm to existing owners of Rural A including strata homes on Rural A.
Yours truly,
George B. Miller,
President, ABCL
Five rural property owners are looking to the B.C. Supreme Court to have a contentious land use bylaw quashed. Ken Ellinger, Elaine Ellinger, Al Jones, Dave McClimon and Les Monnington claim Bylaw 2708, a bylaw which restricts the number of houses that can be built on properties larger than 80 acres* to a maximum of eight, is illegal because it does not conform to Sooke's Official Community Plan, as stipulated by the Municipal Act.
The bylaw was introduced by Sooke regional director Diane Bernard Aug.11. Bernard said the intent of the bylaw is to close a loophole created by the provincial Condominium Act which allows developers to strata-title rural parcels of 10 acres and build up to four homes. However, Elaine Ellinger said Bernard should have made an amendment to the Official Community Plan, an amendment which requires approval by the B.C. Minister of Municipal Affairs. Ellinger said Bernard had attempted to institute a similar land use bylaw last year by amending the OCP, but she failed to get provincial assent. "It was turned down last year, and this time she avoided the minister," Ellinger said. "She has not followed due process."
Bernard said she is confident the bylaw will stand. She said she was extremely cautious when the new rural land use bylaw was developed. "This bylaw was guided by input from the Sooke Landowners Association**, by CRD planners, by CRD staff and by lawyers and legal opinions all along the way."
* correction: properties over 40 acres were now limited to one house on 10 acres.
** Recommendations from our Association were ignored by CRD staff and the director.
"Even before it elects its first council, the new municipality of Sooke could be facing hefty legal bills thanks to director Diane Bernard's new land-use bylaw, says Malahat-Juan de Fuca MLA Rick Kasper.
Bernard "rammed through" a new Capital Region District zoning bylaw that restricts developers from splitting up acreages for housing without going through subdivision approval. The bylaw, however, didn't have the support of the local community and will undoubtedly leave the new municipal council facing a legal challenge, Kasper said.
"I'm a taxpayer in Sooke and it really upsets me that something was rammed through in such a way and is going to be foisted upon a new municipal council," Kasper said. "People voted in Sooke (to incorporate) to get away from all this stuff". Kasper said the bylaw, which he said still allows four houses on a 10-acre parcel*, won't do a thing to address issues of public health, water supply or roads as Bernard maintains.
Bernard said she pushed for the bylaw to prevent developers from using the Condominium Act to avoid subdivision procedures and requirements while building several houses on one parcel.
"There were no bona fide problems with the provisions that were laid out and legally exist under the Condominium Act," Kasper said. A number of people have told him there will be a legal challenge, he said. "It will cost the local taxpayers money defending such a bylaw for what could turn out to be a possible rescinding of the bylaw when we have a ...council in", Kasper said.
"The whole thing has been a nightmare. I attended the public hearing and I think I'm giving the benefit of the doubt when I say 90 per cent of those who spoke, spoke against the bylaw and a very small, small minority of people spoke in favour of the bylaw".
Because the bylaw concerned land-use, Bernard needed only the support of Langford electoral area representative Larry West to get the bylaw through. West has admitted never attending a public hearing in Sooke, Kasper said. "This is like the queen imposing something on (her) subjects and the subjects don't want it," said Sooke property owner George Miller, chairman of the Association of B.C. Landowners.
"It's downzoning without compensation. That's effectively what it is". Before the change, families could buy a 10-acre parcel in Sooke for about $100,000. and build up to four houses on it for family members for a land cost of about $25,000. a parcel, Miller said. "There's a price you pay for this. You have to find your own water and you have to look after your own waste and you also have to commute. "The rural ambiance is maintained because you have narrow roads between the fields and the pastures, you don't have wide roads like you would have in subdivisions.
"So it was a good thing for Sooke and a good thing for families," he said."
* correction: properties over 40 acres which divided into 10 acre lots were restricted to one house where previously they could have up to four.
Our website has been abused in the past by opponents of property rights. However, all members and friends are invited to contact us by phone, and letter, so that we continue to stay in touch.
Thanks to you all.
Bylaw 2708 downzoning some Rural A properties over 40 acres received 3rd reading and adoption at the CRD Board Aug. 11, 1999. We defeated it in the newly incorporated Sooke Municipality in 2000, and in the Juan de Fuca Electoral Area in 2002. We continue to involve ourselves in property rights issues in these areas.
Association of B.C. Landowners
Box 1001,
Sooke, B.C.,
Canada. V9Z 1J1
Email: info@bclandowners.org