The Mythical RAR “Ease Factors”
April 24, 2011 Leave a comment
Islands Trust Staff and Trustees have spoken about the possibility of Trust Staff, in the future, being able to come out and give an opinion on the new law as it may apply to your property, to “ease” the burden of regulations they are proposing. Nothing has been formally done yet, and, the Trustees are not waiting to crystallize such hopeful statements before effectively passing the new law.
Sounds wonderful, doesn’t it?
However, I submit these “ease factors” will never happen in real life.
Liability of Unqualified Opinions
The liability and legal ramifications of unqualified, or, for that matter, qualified, Islands Trust staff members giving an opinion, on matters which only professional biologists, engineers, surveyors, etc. are qualified to submit opinions, will not be allowed to occur by the Victoria Trust Office. Why? Because if a staff member gives inaccurate advice, the Trust can be held liable. Currently it is hard enough trying to get them to interpret the existing bylaws.
Allow me to share a relevant personal experience which underlines my opinion. In July, 2009, I met with three staff members – a planner, a Regional Planning Manager, and the Director of Local Planning Services. The two senior staff members agreed with the planner, who had, for the previous two years, agreed with me that an existing, manmade pond on my property, was not a “water body” as defined by the bylaw. To be clear, all three agreed the pond was not a “water body” according to the definition in the bylaw. In addition, and in support of their opinion, two staff members of the Ministry of Environment had previously concluded the pond and associated ditching were clearly manmade, were not replacements for a natural watercourse, and were not considered “streams” under the Water Act.
In spite of five government employees’ opinions, the two senior Islands Trust staff members were not prepared to take on the responsibility of officially confirming their decision in writing. The result was the Director of Local Planning Services gave direction to the Regional Planning Manager to hire an independent consulting company, at a cost of several thousand dollars to the taxpayers, to “peer review” what the three Trust employees, and two Ministry staff members, already believed to be true. The consultant’s conclusion? He agreed with all of them – the pond was not a “water body” as defined in the bylaw. Six people.
Does anyone really believe Islands Trust staff, who can’t even accept responsibility for interpreting a simple definition ( agreed upon by the collective opinion of three Trust staff members and two Ministry of Environment staff members) is prepared to determine, on a regular and standard basis, whether a ditch or watercourse is a fish-bearing stream, or a non-fish bearing stream, or just a ditch, or a creek?
We are living in the age of CYA (Cover Your Ass). No one wants to take on any more liability than necessary. The Trust’s head legal counsel, Bill Bulholzer, gives this rather poignant advice to local governments:
“Perhaps the greatest risk of negligence liability in relation to land-use regulation in terms of sheer number of opportunities to perform negligent acts lies in the provision to members of the public of the information (“representations”) on the content and effect of regulations that affect them.
Generally such inquiries are made at the time the purchase of real property is being considered, in circumstances where it is reasonable for the land-use authority to expect that the person requesting the information will rely upon it in determining whether to complete the transaction, and perhaps in fixing on the purchase price…Local governments are under no duty to interpret the regulations for members of the public or express opinions as to their effect in particular circumstances. In other words, a legally appropriate response to (an) inquiry letter (from a potential purchaser’s solicitor or notary) would be to invite the solicitor or notary to attend at the municipal hall and examined for themselves the bylaws and documents that are relevant to the property.…In some jurisdictions, for example, staff responding to inquiries at the planning department counter are not permitted to interpret the zoning map by giving the zoning designation for particular address, but must simply point the inquirer to the appropriate part of the map and let them draw their own conclusions. This practice illustrates nicely the point that risk management is always balanced with providing a level of service to the public; the risk of negligence liability can be reduced to zero by providing no service at all.”
Zero service = Zero liability.
Projected Staff Time?
So, do you really think that every time someone within the proposed DPA4 area (60% of the island) wants to sell their property, or potentially purchase a property, an Islands Trust staff member is going to come out for a visit, with tape measure in hand, and provide written certainty, good for all time, on whether the property will be affected by the new regulation? Try getting a simple answer from Trust staff on existing zoning related matters now. In some cases you have to wait a couple of weeks just to speak to a staff member.
The Trust didn’t have staff time available for the timely processing of the Brinkworthy and Slegg Lumber rezoning applications, both of which had been waiting for over a year to process. Are the Trustees proposing those waits will grow longer, in order to try and appease opponents of their proposed new riparian law by promising low, low, low fees and fast, fast, fast attention to answering questions regarding the application of the new law on several thousand property owners? Not likely, and more to the point, not believable.
It simply will not happen, and, even if it did, the cost in staff time to taxpayers would be enormous. There are, at any given time, approximately 300 properties for sale in the proposed area, and likely about 150 sales a year. Add to those numbers the number of people who want to develop something within the area over a year. And then again, add to that an increased number of complaints from people who think they ysee someone “developing” without permission within the 60% area.
If your property is listed for sale now, ask your realtor what the potential ramifications of the new law could be on your property. If they are wise, they will refer you to the Trust for the answer to that question, rather than trying to guess how far the new regulation will impact your property. At the moment, the Trust cannot give you a formal answer to the question. All you will get are generalizations, and nothing in writing. Catch 22.
Reducing Development Permit Fees?
The Trustees and staff have also been raising the idea of reducing Development Permit Application fees to make it less expensive for an applicant to comply with the new regulation.
This is entirely against every standard local government policy regarding application fees. Application fees are meant to cover the average cost of processing an application.
The Local Government Act Section 931 (2) protects the applicant from being charged a fee more than “…the estimated average costs of processing, inspection, advertising and administration that are usually related to the type of application or other matter to which the fee relates.”
On the other hand, if the fees are too low to cover the costs of “processing, inspection, advertising and administration,” the taxpayers are unfairly picking up the tab for processing an individual’s application.
Thus, it is entirely inappropriate to suggest reduction of application fees as it places the additional burden on taxpayers. In this case, the burden would also be unfairly shared by all other taxpayers in Local Trust Areas which have already established accurate riparian mapping.
The above “proposals” from the Trustees and/or staff are designed to do nothing more than placate the public over the next few weeks prior to Public Hearing. There appears to have been no critical thinking on the consequences of implementing the proposed “ease factors.” Why? Because the Trustees are in such a “rush” to pass the new law.
If this is such a wonderful new proposed law, the full text of which has only become public knowledge in the past week, what is the “rush”? If they are going to ignore the fact they don’t have to change anything to comply with Provincial regulations, they should at least take the time to understand the ramifications of the proposed legislation, let the public understand the ramifications, and, in the end, if the public is finally convinced it is as wonderful as they say it is, there should be no public outcry.
However, with all of its current shortcomings, with the many concerns being expressed by advisory committees and land owners, and dozens of questions which remain unanswered, now is not the time to “rush.”