“No excuse”: Environmental lawyer re Metro

West Coast Environmental Law has released its analysis of the faulty land use designations in Metro Vancouver’s Regional Growth Strategy bylaw (“the RGS”). It appears as a blog post titled “Metro Vancouver Growth Strategy on thin legal ice.”

As you may know, one of the errors is with the Garden City Lands, a property in the Agricultural Land Reserve that the RGS illegally designates as General Urban (residential neighborhoods and urban centres).

The post points out that the Agricultural Land Commission had explained the illegality to Metro at least twice, quoting and interpreting Section 46 of the Agricultural Land Commission Act. The writer, Andrew Gage, concludes that “The ALC’s legal analysis is entirely correct.” That’s from a lawyer with considerable experience in working with the ALC Act.

He goes on to point out the baffling aspect that the problems were left in the bylaw “after the ALC warned Metro Vancouver, not once but twice and in very clear language, that those sections of the RGS related to those ALR lands are illegal.” He finds it all the more baffling that the action is inconsistent with statements in the RGS that the ALC Act prevails over it and that protection of agriculture is a major goal of the RGS.

“It is disturbing,” says lawyer Gage, “when a local government, for no apparent reason, enacts bylaws that they know, or should know, are illegal.”

The multi-titled RGS is also called Metro Vancouver 2040: Shaping Our Future. It actually has strengths that will help the region toward 2040, but starting by breaking the law of British Columbia is not one of them.

____________

Read the whole West Coast Environmental Law post  on the Environmental Law Alert blog.

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5 Comments »

  1. 1
    April Says:

    This is beyond “disturbing”.

    The RGS has challenged everyone by stepping far beyond their boundaries. But can I blame them? In these times, anyone or any group that lacks a conscience will push hard. Any of these pushed groups or individuals that don’t put their backbone in place of their wishbone won’t see the changes they want or need.

    This whole RGS strategy clearly outlines the need for calmer, more intelligent heads in place. There is no balance: it’s pro-development or nothing.

    No consideration for sprawl: not so much how people have to live, but how they need to.

    No consideration for where food comes from. While they outline Strategy 2.3.4., it is in conflict with what they are proposing to physically do. This has to be read very carefully, for instance: “identify and pursue strategies and actions to increase actively farmed agricultural land”. What is the term “actively” really describing? Because in my opinion, very few farms “actively” farm. That is about to change, which is something the RGS team has no ability to absorb and process.

    No consideration for those who now have to fight this. This is not how sensible responsible people in power act! This is how control freaks and those with agendas NOT listed on the RGS act. Leave the ALR alone! It does not belong to developers. Period. End of discussion.

    We are not living in conventional, rational times anymore. Get us to it. Get used to sticking up for those things that are good and real. Get used to fighting for what your truths are. Get used to having to learn new ways to live and survive. Because this is small peanuts in the big picture. It still doesn’t mean any of us are off the hook here: I will stand and battle this one. I WANT to farm!

  2. 2
    al Says:

    Year ago, in our neighbourhood, we were quite literally ambushed by a major development .

    We now call it McNeill High School.

    In mid 1999, with no warning, chainsaws ran for days, ravaging the then approx. 10 acre site. Then, for the entire summer (July/August) excavations and preloading of sand occurred, with all the predictable mess and noise.

    The entire neighbourhood was up in arms .

    This lead to organizing the neighbourhood , showing up at Planning Committees and speaking our minds to both the School District and City. However, this entire venture started quite an epiphany on how the system REALLY works.

    We found out that City planners and Council , in developng the OCP, literally forced McNeill School to be built at the worst site possible. The City was actually quoted as stating they wanted the North McLennan Park (which we thought was a much better site for a High school)to have high visual exposure .

    It appeared that as far as the School District was concerned, time was of the essence, given the NDP Gov’t in power had funds in place to build McNeill, but it also appeared the Liberals would win the election and rumours were funding would be pulled. The then School District Chair actually stated this.

    In the pissing match that ensued, we, the neighbours got caught in the crossfire. The school district , as noted, had pre-loaded the site, which we found was permissible and within their rights. However, they were clearly trying to FORCE the issue.

    (cont’d)

  3. 3
    al Says:

    Cont’d)

    As stated, at issue was an OCP for a school (City) and Developer (School District). However, NO permit or re-zoning(ie 1st, 2nd, 3rd, and 4th reading) had been issued.

    What’s going on ?

    The genesis of major epiphanies re Gov’t and its reps.

    I inquired of a major developer’s
    staff member if they would ever pre-load a site WITHOUT first acquiring at least 3rd reading on the application.

    They said no way…too risky.(and probably tick off the City with such bravado, even though within their rights)

    What I further found intriguing was the McNeill pre-load shape. Rather some generic ie rectangular excavation to be fine tuned later….the PreLoad was in the exact quasi “X” shape of McNeill final design with a +/- of approx 10 ft.

    So the question at this point is….if we haven’t got to first reading of the McNeill development, why is the School District taking a “risk” with this specific pre-load design ?

    The neighbours showed up at every Planning Committee meeting the McNeill issue was tabled. Effectively, the issue dragged out for at least more 8 months.

    Amidst all this was one neighbour who had sicked their lawyer on the City and the School District. This person and 3 other neighbours had their properties designated as SPU….(School Park Use). This designation froze them, while their neighbours were selling off to developers. The lawyer cited various rules, precedents , arbitration processes etc etc. on the books. So the rest of us are wondering…what going on?, WE HAVE LAWS TO ADDRESS THIS…..why can’t this be settled, as this person had to date spent approx. $30,000 in legal fees. In essence those neighbours were stating “expropriate us” as the best means to resolve that situation.

    However, the School District policy was “we don’t expropriate” ( as expropriation would involve paying market price plus a premium).

    Major stalemate.

    This matter increasingly intrigued me to the point I went on a personal research campaign.
    I called the Local Gov’t Branch in Victoria and started asking questions perhaps with a bit of a naive view of how ethical and moral Gov’ts at all levels should be.(long gone now)

    I will never forget one of the answers given to me by the BC Ministry Rep….

    ” Local Gov’ts and other Gov’t agencies are notorious for drafting bylaws etc that they know full well are illegal , conflicting or will lose in court. ”

    HENCE: It’s up to the victim/s to seek re-dress, there are NO Local Gov’t police to make them accountable/responsible.

    In other words:
    Gov’t = Sue us, We (Gov’t)dare You…we have almost infinite resources to fund any/all legal action”. Its not justice, its a war of chronological and fiscal attrition re the resources on each side.

    In addition, I actually contacted the lawyer ( of the one neighbour ) who was very congenial . However, as his best advise, he stated..
    ” Y’know….we lawyers can be hired, try to fight these issues, but at the end of the day, the matter ultimately rests on who YOU the citizens vote into office ” (or tolerate).

    Cont’d

  4. 4
    al Says:

    McNeill High School wars ( cont’d )

    So,….here we are, now into year 2000, pressure mounting.

    The McNeill “plan” was tweaked, but it exposed some more “duh” .

    The City had wanted the School District to create a road to the south of the school,on School owned property and then surrender title of road to the City. The Provincial Education ministry legal counsel stated NO WAY, not within our mandate and not compliant with the legislation.

    Oh…so why doesn’t the City know this?

    So the plan was changed , basically re-drafting the original plan to result in what you see now on the Southern side of McNeill school. What the City was able to do is extract green space in the form of grass fields.

    I will never forget one of my more NO B.S. type neighbours, a businessman , who never suffered fools. In this McNeill fiasco, we inquired as to where is all the proper paperwork that indication the various legal empowerments of the City (Local Gov’t) and the School District ( Ministry of Education)

    The City planner’s answer to this was “…We (ie City and School District)have an understanding …” (???)

    My neighbour was flabbergasted.
    He said “An understanding? An understanding is something that perhaps a married couple would have, but do you mean to say you have NO legal contracts, agreements etc. in place ?

    However, we , the neighbours also started to sense we were now being pushed to the sidelines ” meat in the grinder” and that the matter had been delayed to a point that the pre-decided agenda was now in play, especially after an appeal by the School District Chair that the whole $20 million funding for McNeill could be in jeopardy.

    One could see the looks on Councils faces of the political consequences of ANY further delay of McNeill.

    cont’d

  5. 5
    al Says:

    Cont’d

    Hence, about spring 2000, we saw the jaws -of -the- vise closing….this McNeill school was now becoming done deal. The neighbours be damned, a greater agenda was in play….. ” resistance was futile ” .

    Ironically, the McNeill issue was the first matter addressed when the new City Hall opened.

    Unlike any other developer, the School District forced the agenda and in hindsight other than a few token changes, it really was a wasted 8 month effort by the neighbours.

    Collateral damage:

    —–The McNeill Pre -Load sat for several months. Engineering reports stated this was very poor location given the soft soils. Neighbours immediately backing onto the McNeill pre-load noticed their homes were being affected with shifting foundations via pre-load displaced pressure. Long story short, after lawsuits were filed, ” out of court settlements ” resulted.

    —-Shortly after McNeill was built, the School District shut down 5 elementary schools. (NOTE: School District had tried various “sales pitches” to try to fill McNeill , including creating a Grade 7 class, (3) academies, even renting out space to daycares.) McNeill acted as a vacuum re: sucking students from all over Richmond . Other high schools are now showing declining enrollment . Was McNeill worth it ?

    —-Neighbours whose properties were deemed SPU and had suggested expropriation as a means to resolve the stalemate, actually benefitted from escalating land prices, and ended up getting far more from the School District than if the School District had sat down , negotiated honourably, and not tried to play games .

    =======================

    CONCLUSIONS:

    So…using McNeill an example of how stakeholders interact with Gov’t…. what IS the lesson here as it relates to Metro Van RGS…….ALR ….. etc. etc.

    Once an agenda is in play by the vested interests, it is set in motion to become a done deal.
    —-The Public’s opinion means s-q-u-a-t.

    ——In the agenda’s grand design, there is enough flexibility, in a pre-emptive anticipation fashion , to tweak things to give the impression that any/all dissension or concerns will be addressed to some degree, but that “the powers that be are still on track to do the right thing in the public’s interest aka ” trust them “. (aka throw the public a bone)

    —- The agenda’s authors have the rule book, and have drafted the “plan” so that it will be slam – dunked at some drop dead chronological point. As I stated in a past post, Bylaw 1136 has the BC Lieutenant Gov’t lined up to slam dunk this, which is a deft tap dance for the BC Gov’t to avoid too much DNA evidence.

    —- Metro Van can do whatever the hell it wants re the ALC and Bylaw 1136’s Urban designation on ALR lands.
    It has been s Nov. 2010 since the ALC’s last documented scolding of Metro Van Bylaw 1136 .
    Its now almost February 2011.
    Does a traffic cop take 3 + months to write a ticket ?
    No.
    The ALC has fulfilled its bureaucratic obligation to document its protest…end of matter.

    —-The ALC Act has penalty provisions for non compliance.
    Why aren’t they applied…or is the ALC toothless (as many of us suspect it is when the rubber really hits the road).

    Solution ?= Unless some citizen/s has the desire and resources to take Metro Van to court under “show cause” ….the Bylaw 1136 3rd reading stands as written(unless Local Gov’ts submit request for changes and reason why within the next 60 days)

    In the end, I don’t blame the average person for assuming Gov’t works in our best interests.

    However, once, for whatever reason, you have been involved in an issue (such as McNeill )which gives you much deeper insight into the inner workings of what really goes on, you can never go back to ostrich mode….you have just become really empowered aka ” Knowledge is Power ” and see the real agendas in play.

    It’s never a lost cause if enough citizens stand up and say “enough is enough” with how democracy and the current governance models are abused…but think outside the box first .


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