Controlled Living at its Best

"Controlled living at its best?"

 

Well, it depends on your point of view.

Just to be clear, the OCP, the Official Community Plan, is basically a "guide" created in response to what the taxpayers of the community have agreed upon.  It is designed to assist local politicians in making decisions in council. It does not have legal teeth in the absence of other supporting law, and we're not just talking "bylaws" here. Bylaws must be constitutional.

The OCP is not a hammer to be wielded by individuals and councils when they have a particular view of how we should all live. In fact, its purpose is to ensure that councils and individuals don't impose their own personal biases, religious beliefs, and "vision" every four years. This is the fundamental purpose of OCPs and that purpose is encoded in the Local Government Act and Community Charter. Overriding the Local Government Act and the Community Charter (or rather, overriding how municipalities interpret the Act and Charter) are other legislation such as the Land Titles Act, the Constitution, and the Canadian Charter of Rights and Freedoms, and just plain common sense.

The District of Coldstream wants to rezone virtually all private property in Coldstream - agricultural and nonagricultural. I think that the reason the District of Coldstream wants to rezone virtually all of private property in Coldstream stems from the 2007 Supreme Court case of Galloway versus Broderick.  Mr. Galloway owned a 2.35 acre lot in the Kalview Estates subdivision. Mr. Galloway's application to subdivide his property was denied by the approving officer (Craig Broderick) for five reasons all found to be inadequate and in error by the Court. 

Why is Galloway versus Broderick so important when we talk about rezoning land in Coldstream?  Because rezoning will create a roadblock of legal proportions that is impassable for most Coldstream homeowners. It will mean having to go to court, like Mr. Galloway did, to prove that the District does not have the legal capacity to deny a property owner's right to subdivide their land (agricultural or otherwise). The good news is, that Mr. Galloway won his court case against the District of Coldstream because the Court found the Mr. Broderick's reasons for denying Mr. Galloway his right to subdivide were “specious and [on a] totally inadequate factual basis.”

Here are some details:

Mr. Broderick’s reasons (clearly driven by Council) may sound legitimate on the surface but in actuality have no substance nor are supportable in law, and are in fact, discriminatory. The ability to subdivide private property is mandated by the Land Titles Act because property rights actually mean something in Canada. Or they did. While Mr. Broderick, Mayor Garlick, and Councillors may want to refuse to approve a subdivision if they deem it to be “against the public interest" (Land Title Act Part 7, Division 4, sections 83-90), they have to prove that the subdivision would create the following:

1. injuriously affect the established amenities of adjoining or reasonably adjacent properties [Land Titles Act Provision 86(1)(C)(i)];

 2. a highway [road] provided for in a subdivision plan or otherwise legally established on lands adjoining, lying beyond or around the land subdivided is, in the approving officer’s opinion, not sufficient [86(1)(C)(iii.1];

 3. the land has inadequate drainage installations [86(1)(C)(iv)];

 4. …the anticipated development of the subdivision would adversely affect the natural environment or conservation of heritage property to an unacceptable level [86(1)(C)(vi)];

 5. …the subdivision is unsuited to the configuration of the land being subdivided or to the use intended…[86(1)(C)(ix);

 

and finally, the material point….

 That the approving officer considers that the subdivision does not conform to…

 All applicable municipal, regional district and improvement district bylaws regulating the subdivision of land and zoning [87(b)].

Why does the approving officer have so much power?  Land Titles confers the title and position of approving officer on municipalities. The municipality (the District) makes the choice of the person who holds the position. It is an important job because property is an important issue. An approving officer, although he has "broad powers," much like Council has "broad powers" can make some significant decisions about you, your life and your property. The key to those broad powers is exercising them in a legal, moral, and ethical way. Neither the approving officer nor Council can just decide that you can't subdivide your land. Like it or not, everyone can subdivide their land. We have that right in Canada. Doesn't matter what the size of the land is either because you can ask for a variance. The approving officer can only deny the right to subdivision if there is zoning in place that does not allow it (and in this case you also can go for a variance as well) or mitigating circumstances as noted above.

Here are some examples of what the judge thought about Mr. Broderick's power from Mr. Galloway's court case:

Mr. Broderick stood up in Supreme Court and stated that, "simply because the proposed subdivision may comply with the bylaws does not mean that approval ought to be given as a matter of course if the subdivision is otherwise contrary to the public interest."  The Honourable Madam Justice Loo found that Mr. Broderick's reasoning was specious and totally inadequate factually in this regard because there is more at stake than just a notion of what "public interest" means - it doesn't just mean what is written in the Official Community Plan. It must be supported by law. The Honourable Justice noted that even when considering the opinion of the neighbors (who did not want the subdivision either), the subdivision could not be denied, because the opinions of Mr. Broderick, the District, and the neighbors were not synonymous with the public interst and therefore, were another factually inadequate reason to refuse Mr. Galloway.  In addition, Mr. Galloway made the mistake of moving some rocks onto his land prior to the court case. These rocks were considered part of the District's argument for not granting Mr. Galloway his subdivision. When questioned by the Honourable Justice, Mr. Broderick agreed that he was in error about the rocks as well. Mr. Galloway had no requirement to ask the District where he could place rocks on his property. Of the five reasons why the District of Coldstream refused Mr. Galloway's subdivision, not one was found to have merit in Supreme Court.

To reiterate, the District has to have a good, supportable reason to deny you the right to subdivide your land. The terms "private property" and "property ownership" occur in a multitude of documents both legal and otherwise. We use these terms in normal conversation. The District refers to the taxpayers as "property owners." These terms have meaning -  that ownership confers the ability to make personal decisions about what you own, that you are entitled to have privacy and entitled to make decisions about how you want to live without undue influence from others. It is not good enough to say Council doesn’t want someone to subdivide, or the neighbors don't want the subdivision, or it will ruin their view, it will take away green space, they don't like you, or you are a bad person. The court will find those reasons unacceptable.  

Property rights and Land Titles (regardless of this nonsense about "fee simple" and Council members saying that Council “owns all the land in Coldstream”) are so important that if you have an issue with the approving officer and he/she denies your right to subdivide you don't just go to court. You go straight to the Supreme Court. Period. No phaffing around.  A Supreme Court Justice decides whether the DISTRICT'S REASONS TO DENY YOUR SUBDIVISION APPLICATION ARE ACCEPTABLE.

This is why council is pushing for rezoning because then they can deny an application for any reason they like with far greater success of stopping you than if they didn't rezone. And as you can see they are not just protecting "farm land" through a rezoning of agricultural properties. Going to court is not to be taken lightly for individuals and as this past year has proven, legal issues are cropping up more than just routinely at the District of Coldstream. As for private property designated agricultural here's another salient point:  The Agricultural Land Commission gets final veto if they disagree with Coldstream's opinion about your application. The District can only support or oppose your application. It is possible that at some point in the future the Agricultural Land Commission will acknowledge that there are only so many hay farms called "agriculture" and virtually no food farms left, and that small parcels are the indeed a way to intensify agriculture while maintaining environmental and crop diversity. Its good for people! Its good for the environment! We create ecological “edge effects”! That is, if the Commission equates "agriculture" with food sustainability in fact, rather than just the fiction they claim now – that large monocrop/ monoculture businesses are "food sustainability." 

So, in summary, the subdivision of land is encoded in the Land Titles Act.

 The right to subdivide cannot be undermined by any council nor an approving officer for specious reasons (i.e. stupid ones, bigotted ones, or ignorant ones) regardless of the OCP or the bylaws.

 The Supreme Court has final say unless it is the Land Commission in the case of agricultural land (and you can take them to court as well).

 The Agricultural Land Commission can override the decision when the District opposes a subdivision as long as we still have access to the Commission to present our case.

 The Agricultural Land Commission may at some point begin to see the value of small parcels and change the rules but if Coldstream has changed the zoning it becomes a much more costly and challenging issue.

 A final comment:  Coldstream has spent an entire year trying to impose unsupported conditions on building permits by utilizing a Subdivision bylaw and a section of the Local Government Act that mandates the condition of subdivision (versus building permits which are an entirely different entity).

What has that got to do with rezoning?  Everything because, the District has been “specious” in their approach and have created a mythology around the word “development” which they have inappropriately linked to home renovations and single and dual family home builds by turning that into "subdivision".  Part of the reason for this is that if you can convince the public that a building permit means “development” with a capital “D,” you can convince them that they have to pay for road upgrades, infrastructure such as curbs, gutters, and bicycle paths, and now drainage. If you go back and review the points above you will notice that “drainage” is a legitimate reason to deny a subdivision request according to the Land Titles Act. “Drainage” is another word that is being manipulated in Coldstream. The words “development,” “drainage,” and “subdivision” are flash points and have become the new way that Coldstream not only tells us all how we will live in the future regardless of our legislated rights, but also, how they intend to pay for their inability to use taxpayers’ dollars wisely. Coldstream has resorted to extortion (unsuccessfully), has manipulated public opinion in the past year in a stunningly arrogant way, and are evidently hell bent on continuing that practice regardless of overwhelming public opposition.

I predict that this Council will continue to manipulate and create mythological bylaws to bestow on themselves the ultimate authority on who has land rights and who doesn't. This will leave them (and all the taxpayers of Coldstream) open for litigation. If you don’t think this affects everyone in this District, you are wrong. It may only appear to affect people owning larger parcels at the moment, but the tactics and the culture of domination will impact us all.

Watch carefully as the Mayor’s goal to create public paths on private property gains apparent legitimacy. Just so everyone is clear:  you cannot legislate public access to private property. This council's obvious contempt for private property rights will undoubtedly build on “development,” “building permits,” “subdivision of land,” and finally the rezoning of virtually all private property in Coldstream.

There are only two outcomes and we've got both already:  abuse of power and litigation to correct it.

Judy Paterson

PhD Student

Interdisciplinary Graduate Studies

Community, Culture and Global Studies

Irving K. Barber School of Arts and Sciences

University of British Columbia, Okanagan

"Controlled living," adds Kia, "at its specious best."