By coming up with specific policies on such things as steep slopes and environmentally sensitive areas before adopting a new official community plan, the municipality may be opening itself up to a legal challenge, say two local landowners.
"This is not the way to deal with the bylaw," Wolfgang Duntz said during Monday night's council discussion about the steep slopes bylaw. "What I'm concerned with right now is the process. Council exposes itself to be challenged in court. The process is not proper, and I'm waiting for another opinion. I have no problem challenging you on a legal basis. It would be in everyone's best interests that you make sure you are on solid ground. I find the bylaw very nit-pickingly intrusive and beyond the rural atmopshere of Bowen Island."
After the meeting, Duntz told the Undercurrent that when you have a land use bylaw, such as steep slopes, it has to be in accordance with the OCP. But council has yet to complete the OCP update. The purpose of the OCP is to paint a broad picture of development and planning. land use bylaws fill in the details about regulations and guidelines.
"You have to deal with the OCP first," says Duntz, who co-wrote a five-page letter to council with Richard Underhill. "You don't know if a land use bylaw complies with an OCP that has not been enacted....
"It's like you haven't received your test results but you're already on the operating table. This is badly flawed."
In their letter, Duntz and Underhill outline many of their concerns with the process in general and land use bylaws in general. They find that the steep slope bylaw deals mainly with aesthetics rather than true protection of property from hazards created by steep slopes.
Council is trying to control too much, Duntz told the Undercurrent, and that means they don't trust citizens to do the right, and safe, things on their properties. "I feel insulted as a taxpayer."
As part of the OCP update, council received advice not to get too specific about land use, which is why it decided to go with separate land use bylaws in conjunction with the update. It has started the process of adopting the LUBs, which it planned to adopt on June 27, the same day it wants to adopt the OCP update.
The municipality has not had legal advice about the issue of process raised by Duntz and Underhill.
At Monday's meeting, director of planning Hap Stelling said, "what I can say in general is we've consulted with our solicitor. I don't think that advice has been considered in context with changing language in ancillary land use bylaws. In terms of ongoing review of the OCP and the significant changes [in the OCP since first reading], we've received advice that's consistent with going forward."
Council debate on the steep slopes bylaw is ongoing. On Monday, Stelling presented council with changes that had been proposed by councillors.
"It's better but it's still not what I would want to see," said Councillor Alison Morse. "I'm trying to make the best of a worst thing. The words were changed but the map wasn't. One of the problems I have is that nowhere does it say very clearly, that if you're doing development within a defined step slope area, you'll need a development permit.... I maintain that anyone putting in a small garden shouldn't have to ask to be exempted; they should be exempted."
Stelling said that the map indicates areas of steep slopes - a slope angle 30 per cent or greater over a 10 metre distance. If a home owner wants to make changes on his or her property, it's their responsibility to check if their property is identified as having a steep slope. If it does, the property owner must consult with the planning department about the proposed work. The planning department will determine whether the work can go ahead or whether some studies will be needed first.
"We need some more exemptions," Morse said. "Someone with a normal size house that's already built shouldn't have to be worried about this. People won't do things that jeopardize their own house."
Councillor Peter Frinton said he'd suggested an additional exemption, that was included, about creating gardens. "Someone who's got a place shouldn't have to get a permit to plant a flower garden." He added, "There's nothing in here that says every development in this steep slope area should have a permit; it flags things.... There have been times when an additional structure has been put in and it fails and there's slope slippage.
Richard Underhill raised concerns about the accuracy of the map, especially since it will have such importance within the LUB. As well, he said from the time the OCP update started, there has been a 180 degree turn in its wording.
Councillor Nerys Poole agreed with Morse that if that there's an activity that's exempt, the bylaw should say that.
Stelling said, "It's all spelled out in the exemptions but you might have to phone to ask."
Councillors agreed that they needed more time to study the implications of the proposed steep slope bylaw before proceeding.
