Correspondence from L. Simons re: 150 Island Highway Environmental Development Permit
Letter from a local landowner objecting to the pump station development on grounds of OCP inconsistency, environmental sensitivity, and procedural flaws.
April 25, 2013
To the Mayor and Council of View Royal,
Please accept this letter as my submission against the application by the Capital Regional District for a Development Permit with Variance 2013/01 with regards to the proposed Craigflower Pump Station. I am one of the two landowners at 154 Island Highway, adjacent to the land subject to the Application.
The chief argument against the application is the siting of this large structure within one of the last undeveloped shoreline areas of Portage Inlet, an area designated for environmental protection by the Town of View Royal. The application runs counter to the View Royal Official Community Plan and environmental guidelines that do not permit the approval of this application.
If the application is not rejected on the above basis, then other procedural and technical concerns about the application must be addressed. I include submissions on owner authorization and impact on adjacent landowner rights, lack of a land survey, and notice requirements.
Finally, I submit that this application is not urgent and does not require immediate approval. The fault for any perceived urgency rests upon the applicant, poor time management and poor site selection.
Inconsistency with Official Community Plan
The application is completely inconsistent with the View Royal Official Community Plan (September 2011) (“OCP”).
Broadly, the OCP states at page 166 that “all shoreline and riparian zones should be kept in a natural state.” Specifically, at page 171, the OCP states that “Use of marsh shore areas should be limited to park or conservation uses that do not require structural intrusions.”
This portion of the OCP makes it immediately clear that the application, for a structure with a 3,014 square foot footprint and spanning approximately five stories top to bottom, must not be granted. I will walk through the specific OCP guidelines as they relate to shoreline development for further clarity.
The proposed site falls within both “Natural Watercourse and Shoreline Areas” as well as “Sensitive Terrestrial Ecosystem Area.” The OCP outlines specific types of shoreline and provides guidelines for permits for each type at page 170.
The three types are rocky shores, beach shores and marsh shores, with the guidelines becoming more stringent moving from rocky to marsh shores. While a variation to the 15m setback may be considered in the rocky shore area, such a variation is not available for the beach shore. Marsh shores are identified as highly sensitive and are granted even greater protection.
The shoreline area of this proposed development is a Marsh Shore, characterized by mudflats as acknowledged in the environmental report submitted with the application. An application for this type of shore requires property specific assessments regarding setbacks and shore protection systems. These are not thoroughly addressed in the application materials, which do not fully outline the impact of reducing the setback to zero metres, nor the embankment and shore protection measures.
Analysis of the proposed shore protection and setback assessments is, however, unnecessary given the overriding guideline of approved uses for this type of shoreline area. The use of the land for a large scale pumping station, with accompanying structural intrusion, is precluded by the OCP.
The application is to build a structure with a footprint greater than 3,000 square feet. It would rise 25 feet above ground and extends the same again below ground, to a total of approximately 50 feet. This is a massive structural intrusion and completely inconsistent with the park and conservation use guideline in the OCP.
This inconsistent use of protected shoreline should be enough reason to reject the application. In addition, the proposed variance of the 15-metre setback to no setback whatsoever brings the application in further conflict with the OCP.
The provision of the 15 metre setback in the OCP has increased importance in the untitled foreshore. Since this land is not subject to zoning, it does not currently have setback requirements, including setbacks from other properties, as are found in regularly zoned areas. The Development Permit and Variance is the only way to regulate the use of this land.
If a new pump station is required to meet capacity issues, the solution is to build it in a location where zoning and/or OCP guidelines support this type of land use. The provision of a park or conservation guideline for this area was made following extensive consultation and debate and must not overridden. Indeed there is no precedent for completely overriding such a clear guideline.
Flaws with the Application- Owner Authorization and Adjacent Landowner Rights
The staff report to the Committee of the Whole dated April 4, 2013 (the “April 4th Report”) sites several staff concerns with the application and recommended that conditions be added to any grant of the Development Permit with Variance.
These concerns and recommendations were omitted from the follow-up Council Report dated April 10, 2013 (the “April 10th Report”). Instead, six days later the staff report was changed to recommend granting the application and to completely overlook the concerns regarding the License of Occupation and remediation.
The problems with the limited term nature of the License of Occupation are noted at page 4 of the April 4th Report. Staff indicated that they would like to see assurances about this extension of the term.
Staff further noted that it was not satisfied that owner authorization had been sufficiently addressed, as the submitted License of Occupation does not convey property rights. "Staff is concerned that the uplands owner’s common law riparian rights might be infringed upon without sufficient landowner consent for the project."
As the uplands owner, I am familiar with a Statutory Right of Way granting the applicant rights to use a portion of my driveway. I do not believe the Statutory Right of Way signed over any common law riparian rights as referred to in the April 4th Report.
As neither this Statutory Right of Way, nor the one that I assume is attached to the School Board’s piece of property, is included in the Application, I do know whether the other property owner is similarly affected in their common law riparian rights.
I was only granted access to the application and Reports last week pursuant to my Freedom of Information request of February 18, 2013. As such, I have only just learnt of this potential impact on my mother’s and my rights, I have not had time to consult a property lawyer on the subject. I have asked the previous owner of 154 Island Highway about the granting of the Right of Way and she told me that she is bound by a confidentiality agreement and is not permitted to discuss the specifics of the agreement that she made with the CRD.
This is of particular relevance because, despite staff concerns about these deficiencies, the concerns were ultimately removed from the April 10th Report that is presented to Council, is included in the agenda and is readily available to the public. To read this report, one would think that the staff had no concerns whatsoever.
I also note that a further recommendation in the April 4th Report at page 3 called for a further condition that is absent from the April 10th Report. That recommendation stated “it will be a condition of the Development Permit that the soil be mediated to the satisfaction of the Director of Engineering prior to the issuance of the Building Permit.” Within 6 days, the new report neglected to include this condition.
The exclusion of both sets of concerns and recommendations from the April 10th Report is troubling. When considered with other aspects of this application referred to in this letter, it suggests that the Town is under such pressure to grant the Development Permit and Variance that it is a willing to overlook genuine problems in order to facilitate the process. It is this oversight and sober consideration by Council and staff that residents of View Royal rely upon. The local government structure enables municipalities to resist steamrolling by larger governments by following proper process and providing time for full consideration of the issues.
Even following the limited recommendations of prerequisites to the Permit and Variance smacks of putting cart before the horse. Instead, if not rejecting the application outright, Council should require the applicant to satisfy the conditions first and then return with those assurances and plans in place and request the permit at that time.
Flaws with the Application- Lack of Survey
At the open house for the proposed pump station held on February 26, 2013, CRD Engineer Malcolm Cowley indicated that the site of the proposed project had yet to be surveyed. He stated that the plan was to build the station and then complete a survey of the lands.
This sequence defies logic, as it puts a 3,000 square-foot cart before the property survey horse and places the property rights of neighbouring land owners at risk.
In particular, any project must maintain the driveway width for the property at 154 Island Highway. This property is bordered by the E & N Railway land and the foreshore in question. The pump station, in drawings, is sited as almost immediately abutting the driveway, without any clearance.
Without a proper survey, including a survey of where the E & N lands extend to, the proposed project could mistakenly cut far into the driveway and leave the driveway without sufficient land to serve its purpose.
At a minimum, the applicant should complete the survey and then study the siting of the proposed structure to ensure that it does not cut into the driveway access. It seems wholly irresponsible to build on a site without first surveying the boundaries of the land.
This prerequisite is all the more necessary because the land is not subject to zoning. Without zoning, there is no regulation about placement of the structure on the land and setbacks from other properties. At a minimum, the land must be properly surveyed.
Notice
Notice requirements under s.922 of the Local Government Act, B.C. state that notice of the Development Permit and Variance application must be mailed or delivered to owners within a distance specified by bylaw.
The View Royal Development Procedural Bylaw states that owners within 100 metres must be notified of a Development variance application. This is significantly lower than the 400-metre notice requirement set out in the Bylaw for zoning changes.
I submit that in this case, the 100-metre notice is too low to provide effective notice to the community. In this case, it amounts to notification of only six residential properties in total (myself and the residents of Woodbine Court). Notice to the owners of the railway land must also be provided, and I am not sure if that notice has occurred.
This is a major project that proposes the construction of a structure greater than 3,000 square feet and spanning five stories on some of the last undeveloped shoreline of Portage Inlet. While the foreshore is not zoned, this proposal is akin to a zoning application, and at a minimum, that area should be notified.
I submit that a project of this size should be subject to voluntarily broad notification so that more residents will be alerted to the project. I propose that a rezoning application style billboard be posted to alert the community of these plans. In addition, notice should be sent out to all residents of View Royal, or those falling within a larger radius.
I note as well that this application is being heard at a Special Council Meeting. There was no meeting originally scheduled for April 30th. With the minimal notice provided and the scheduling of the application on a date that was previously an un-noted date, the application will have unusually minimal public engagement. Notice for Special Meetings is an even lower threshold than regular Council meetings.
Against the Urgency Argument
At the April 16th Council meeting, I suggested that the application should be adjourned to a date later than the next council meeting in order to allow the public time to prepare submissions. I noted that the Applicant has taken over 8 years with a trained professional staff to prepare the application, and the public should be permitted more that 10 days to respond.
In response a council member at that meeting suggested that there was urgency to this application because the construction has to be started while the school is out for summer. Any urgency for this summer’s plans lies solely at the feet of the Applicant.
The Applicant previously made this application in 2006, only to withdraw it. Having waited seven years to re-apply, and beginning the process only in December of 2012, the Applicant has set up an unrealistic timeline for the project.
I submit that it is disingenuous to claim urgency when the applicant’s own actions have been the cause of the delay. To push the application through without proper public consultation, consideration and on the basis of the Applicant’s poor time management places an unfair burden upon the residents of View Royal.
The hearing of the Application at a Special Meeting is itself troubling, as it indicates that for some reason the usual application procedure is not being followed. Special Meetings themselves have a lower notice threshold. As of April 23rd, no notice of the Special Meeting is on the Town of View Royal website.
If the Town Council is being pressured to hear the Application on an urgent basis, it is all the more reason for cooler heads to prevail.
Conclusion
I acknowledge that, under the current CRD plan to build a single waste treatment centre in Esquimalt, a new pump station may be necessary. It is not necessary, however, to build it on the environmentally protected shoreline of Portage Inlet. It is a particularly poor choice of location and one that can be easily rectified by siting it elsewhere.
The Official Community Plan reads clearly against the approval of this plan. Official Community Plans are effective ways for municipalities to plan and guide their own developments. The plan does not permit support this project.
If this project is considered despite the inconsistency with the Official Community Plan, there are many deficiencies that must be addressed. A claim of urgency by the applicant does not justify an incomplete approach to the permitting process.
Before a Permit and Variance can be issued, the applicant must satisfy the ownership and remediation issues identified in the April 4th Report by staff, as well as satisfy the land survey issues that I have raised.
Finally, the entire process should occur in an open and unhurried environment. Applying before the open house, as the applicant attempted on February 19th, scheduling the application before notice was mailed out, as happened on April 16th, and now hearing the application on a Special Meeting day, all smack of a lack of transparency and steamrolling. This should not be part of a modern approach to the approval process. If the application is not rejected today due to the very clear inconsistencies with the Official Community Plan, then it should be further examined at return at a later date once the deficiencies have been addressed.
Sincerely,
(signed electronically)
Laura Simons 154 Island Highway View Royal, B.C
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