The flexibility of Snug Cove’s sewage bylaw is set to come back for discussion following involvement from the Office of the Ombudsperson.
Early last year it was determined the Snug Cove Wastewater Treatment Plant (WWTP) would need nearly $2 million in fixes, following a series of overflows and unexpectedly reaching capacity. All future hookups to the sewage system were paused indefinitely.
A payment method was worked out to cover the repairs in the form of a cost-sharing plan between properties in the Snug Cove Local Service Area (44%) and those on the rest of the island (56%). The money would be collected through parcel taxes.
This approach would use general revenue sources, which drew questions from early on. Historically on Bowen, sewage work performed in Local Service Areas (LSA) is funded through LSA reserve funds.
One of these voices was Bowen’s former public works superintendent and engineering and operations director Brad Hawthorn. Through letters and appearances before council starting when the topic came up for discussion, Hawthorn explained that a shared cost recovery plan wasn’t permitted under the Snug Cove sewage bylaw, nor any LSA bylaw on the island.
Under current LSA bylaws, such work needs to be funded by the LSA Sewer Reserve. In Snug Cove’s case, this totalled about $53,000.
Chief administrative officer Liam Edwards countered by saying “Municipalities can use general revenue at its sole discretion for local area services whenever it deems appropriate,” reasoning that “capacity that was once there (WWTP) was given away to projects that were deemed to be strategically important to the island, but there was never any funding identified to fill in that capacity that was given away.”
The CAO also reasoned that cost sharing was appropriate since Snug Cove has most of the businesses and amenities on the island, and therefore work done in that area benefits all of Bowen.
The points made by Hawthorn and others were acknowledged once new chief financial officer Kristen Watson arrived. In response she amended the initial plan of a full island cost share to the eventual split that was enacted, agreeing with Edwards that some costs should be borne outside of the Snug Cove LSA because of its unique status.
Watson also proposed an amendment to the sewage bylaw to allow for greater borrowing leeway in the future for projects seen as benefitting the whole island. Ultimately this wasn’t pursued however, and the cost split adopted as part of May’s budget.
Hawthorn resolved to pursue the matter though, and wrote to the Office of the Ombudsperson with his evidence that the decision violated the sewage bylaw. “The reason I thought it was important to take it up with the Ombuds Office was that I strongly believed that the municipality was contradicting its own bylaws, as well as the Community Charter,” says Hawthorn.
Ombuds Office says clearer language would help the matter
An investigation was opened during the summer, and by fall the department determined the cost sharing method did indeed run contrary to the existing bylaw.
“The municipality indicated that they had obtained legal advice regarding the apparent inconsistency. The lawyers suggested that the cost-sharing structure could be interpreted as compliant with the governing bylaw in a technical sense, and an amendment may not be necessary,” read a letter from Ombuds officer Pei-Shing Wang to Hawthorn in October.
“While lawyers may provide a comprehensive analysis on whether the cost-sharing structure may be considered compliant, most residents do not have the technical expertise to do so. It may enhance public communication if the governing bylaw is amended to be consistent with the cost-sharing structure at the first glance,” Wang’s letter continued.
While the Ombuds office doesn’t enforce laws itself, decisions they make are highly influential on establishing best practices for municipalities. Wang called the municipality to inform them of his office’s view, which Edwards says came as a surprise to him. But the CAO said he’s supportive of the department’s suggestion “to ensure that the bylaws are in alignment with the financing methodology that we use,” and the amendment matter will be brought forward to council in the new year.
“Given that the municipality has agreed to take the steps necessary to resolve the issue identified during my investigation, I intend to end my investigation and close our file,” concluded Wang in the letter.
The exact steps for this upcoming bylaw amendment aren’t fully clear. Hawthorn suggests written notice to all affected properties is required, along with the opportunity for a counter petition. “It’s a little bit interesting because there is no wording in the Community Charter that talks about how to amend establishment bylaws after they have been established under the requirements of the Community Charter,” he explains.
“This is the big issue for me and a number of other people, is that there’s a whole process to establish and get community buy-in and counter petition for establishing those bylaws, but there’s a lack of any words about how to amend them… In my opinion, whatever the requirements were to set up an establishment bylaw, those same requirements should also be applicable to amending that bylaw,” says Hawthorn on what he thinks should happen next.
Edwards says he’s not sure if the required move rises to such a level of consultation, but is still reviewing a final plan to bring forth to council.
“From a legal perspective, we’re within our legal authority to do what we did. But from a transparency and openness perspective, it’s hard for somebody to see where that authority exists… We want to do a better job at communicating with the community here, and we want to make sure that people understand the rationale for the decisions that are made,” adds Edwards.
Mayor Andrew Leonard also commented on the issue in December. “In the new year, I’ll be looking for a council resolution to have a formal legal analysis done, for public release, that incorporates the municipality’s initial legal opinion with what we’ve received from the Ombudsperson. I know that we — council, community, and staff — would like more clarity to guide us towards informed policy making that will serve both current and future residents,” says Leonard.
