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A 59-lot subdivision

The Trust Society has perceived that there has been some misunderstanding as to what has happened since the Owners of the Cape submitted their latest application for a 59-lot subdivision on June 4, 2009.

On October 29, 2009, the Municipality’s Chief Administrative Officer, Hendrick Slegtenhorst, granted approval for a Development Permit only, but did not immediately approve the subdivision plan itself. Extensive work by the Municipality and the Owners continued on the subdivision plan. This work took about 60% of Mr. Slegtenhorst’s time. NB: As of December 10, 2009 the subdivision plan has also been approved.

By the end of August, it became clear that an immense amount of work would be needed to bring this subdivision application into line with regulations and technical requirements. It is therefore the Trust Society’s opinion that this private application should have been turned down straight away.

Key Dates:

• June 4, 2009: 59-lot Subdivision application filed with Municipality.
• July/August 2009: Several extensions, over and above the stipulated 60-days to respond to the owner’s application, are granted by the Owners, due to various extenuating circumstances.
• August 28, 2009: CAO writes to the Owners advising them that the various issues raised in the 8 reports attached to his letter need to be addressed before favourable consideration of the subdivision plan and related elements is possible. (These excellent reports make very interesting reading. Also, the CAO cautions that he has not yet turned his mind to the question of the public interest.
• September 3, 2009: A public information meeting is held to enable the CAO to hear the public’s response to the 59-lot subdivision.
• October 29, 2009: Development Permit BM-06-2009 is issued by the Municipality. This, too, can be found as a PDF document on the municipal website. Again, this is not approval of the subdivision plan itself.
• November 9, 2009: Council appoints a Committee to assist Parks Canada (see next column). The Committee’s Terms of Reference are also approved and a Resolution passed for its Budget.
• November 20, 2009: Parks Canada staff visited Bowen Island for a tour. The Trust Society was told: how quickly Parks Canada comes here to do its review will be indicative of its degree of interest – and they have come quickly!
• Early 2010: Parks Canada will report the outcome of its November tour of Bowen to the appointed Committee.

Grounds for rejection

July 30, 2009

There have been numerous statements over the past few months suggesting that the owners of CRC have the “legal right” to a 58-lot subdivision at Cape Roger Curtis. None of these statements can be attributed to a person with knowledge of municipal law, and appear to be simply a strategy to gain support for the CRC development. We now have a legal opinion on the matter.

Through a coalition of two Bowen organizations, the Bowen Island Eco-Alliance and the CRC Trust Society, a group of concerned citizens has come together to seek legal information about the subdivision process, specifically as it relates to CRC and the subdivision application that has been submitted by its owners. We have, through our own internal resources, retained the services of Don Lidstone, Q.C. who is considered by many to be one of the preeminent municipal lawyers in BC. (His biography is available online.) Mr. Lidstone has created a review of the subdivision application, which you can download as a PDF.

Mr. Lidstone’s review leads to some significant conclusions:

1. There are good grounds for the rejection of the most recent subdivision application relating to the CRC lands, arising from the application itself and from the applicable law.
2. If the approving officer does not reject the application, then opponents of this particular application would have good grounds on which to challenge his decision in court.

We think it is important for accurate legal information to be publicly available and we are are hoping that you will agree. We would appreciate it if you could draw other people’s attention to this as soon as possible.

The “Jan Resolution”

Following the April 5, 2009 public information meeting at BICS in which Trust Society Board member Jan Wells added Option F from the floor (requesting the Municipality to explore the possibility of acquiring enough funds from various levels of government to acquire all 631 acres of The Cape), council passed the “Jan Resolution” on April 20, 2009.

Excerpt from Council Minutes

RES# 09‐069

“It was Moved and Seconded That Council direct Councillors Poole and Hooper and any other interested members of Council to work with the municipal consultant Mel Turner, the Bowen Island Conservancy, The Land Conservancy of BC, The Cape Roger Curtis Trust Society, the Islands Trust Fund Board and other non-governmental land conservation and recreational park interests and interested individuals to establish options and strategies for fundraising and soliciting assistance (monetary and otherwise) with the goal of securing an agreement (based on willing seller, willing buyer) with the CRC owners for the purchase, for fair market value, of all or a portion of the CRC lands for public use as a recreational park and ecological reserve; and

That Council direct Councillors Hooper and Poole and any other interested members of Council, together with municipal staff, to formally establish discussions with the governments of Canada, British Columbia and Metro Vancouver (including related ministries or departments, such as Parks Canada, BC Parks or Metro Vancouver Parks) to secure their support and financial assistance in purchasing, for fair market value (based on willing seller, willing buyer), all or a portion of the CRC lands for public use as a recreational park and ecological reserve;”  

Co-incidentally, Parks Canada’s future plans just happened to include a desire to create a park (or possibly more than one) close to a large urban area and it intended looking at the Howe Sound area.

Parks Canada expressed interest in considering Bowen’s Crown Lands, existing parks and protected areas for a potential national park. In a case where Parks Canada is interested in acquiring land, it would make a direct approach to the owner. This would not involve the municipality. Such a purchase would only be successful if the owner was willing to sell.

On Friday, November 20, 2009, three members of Parks Canada visited Bowen to have a preliminary look around. With the able assistance of Sue Ellen Fast as a guide, Mayor Turner and Councillors Hooper and Poole led them on a walkabout through the Metro Vancouver Crippen Park and the community lands and then on a boat tour around the island. The Parks Canada members will be reporting to the head of Parks Canada on their assessment of Bowen. The assessment will include highlights of the environmental, cultural, historical and other values on Bowen. The Municipality expects to hear the results of this report early in 2010. If there is further interest in the possibility of a national park on Bowen, Bowen Island Municipality will work with Parks Canada to develop a plan for public consultation and to obtain community feedback about this initiative.

In a recent letter the Trust Society has expressed its thanks and appreciation to Bowen Island Councillors, for supporting this initiative by forming a committee to liaise with and help Parks Canada.

Background

Last year the owners of the CRC lands decided to embark on a new direction in developing the property. Their initiative at the time, to create a 58 lot subdivision, was creating an increasingly acrimonious debate with the Bowen community and events were turning confrontational (locked gates erected to keep out local hikers, the brazen cutting of a gruesome ‘driveway’ off of Whitesails, etc.). The new direction came in response to the olive branch being offered by our municipal council: an invitation to a comprehensive rezoning process that would put all of the stakeholders at the table and create a more ‘community’ grounded solution to the Cape’s development. Ownership announced it had retained a new face to the negotiations (Mark Sager) and engaged the design and planning firm of Ekistics Town Planning Inc. They also successfully negotiated to keep their subdivision application in the queue, as a fallback position and to protect the CRC land from being down zoned in the future, in case the new public round of negotiations failed (though this is a rather unique situation and perhaps questionable from a legal point of view).

The Process

Before presenting the municipality with an official proposal, the owners decided to initiate a public campaign, to lay the groundwork for their plan and to consult with the community. In July 2007 Bowen islanders had a first look at their new thinking. Ekistics and ownership held a public meeting where they unveiled a broad CRC land use plan.

Through that and 2 subsequent public meetings ownership and Ekistics built their case. Using their own research data (which was not made available at the time) they marketed a vision for the Cape that was a broad, ambitious and sophisticated town/village styled plan. Some of it was wonderful and appealing: 100 % waterfront protection, large park and green areas, community amenities including seniors housing, a community center, etc. Some of it was infuriating: its massive size and scale (the 80 room inn would be the largest in the Gulf Islands) requiring grand and expensive infrastructure costs and a 25 year build out, with pods of development spread throughout the property, limited and disconnected park areas, etc. And some of it just left many of us shaking our heads: the price for this grand plan was a density of 800 -1200 units (1100 being the purported request), many times above the OCP cap of 224 units.

The Response

After the 3 public showcases led by the Ekistics group, it was then time for a Bowen response and council directed the latest presentation to its various referral groups on the island. This included the CRC Trust Society, the APC, the Conservancy, the Sustainability Framework Working Group, Affordable Housing, etc. Responses came back earlier this year and have now been collected and summarized by the Bowen Island planning staff. This summary was then presented to council in a staff report.

The feedback covered a lot of ground—that affordable housing be a component of the development, that any design be filtered through the new sustainability framework, etc.—but a few very consistent and clear messages emerged from the consultation process. Included on the list, much of which has now been publicly endorsed by Bowen council, is the need for a large, contiguous, marine based wilderness park (larger than shown on the Ekistics plans), with density that remains capped at the OCP ceiling of 224 units (though allowing for concessions for amenities like senior’s housing and affordable housing), a reduction in size of the development footprint, construction of a mix of housing styles and forms, etc. A new park boundary map has recently emerged that council recently endorsed (now called the ‘Community Conservation and Recreation Land Map – Vs. 2’, see enclosed). This map needs careful attention because it will very likely be critical to the negotiations ahead; it represents a meaningful saw-off between what the owners have been promoting (100% coastline protection, a large wild park area, a limited footprint for development on the Cape), and what council, green conservancy groups, the CRC Trust Society, planners and others in the community may be able to agree to as the basis for a final solution. The proposed park would incorporate the adjoining crown lands where Fairy Fen is sited and protect almost the entire Huszar Creek watershed. This would constitute the most significant new park of any being considered for the lower mainland. As well, recreation along the west coast right down to the lighthouse would be protected.

Also in this period two new voices were added to the Bowen negotiating team: Mel Turner, a retired BC Park planner, who has both volunteered his time and has been retained as a park creation consultant by the Municipality (see accompanying article), and Jeff Herold, a highly regarded land economist, who has been retained to evaluate the financial numbers and the economic assumptions underpinning the owners’ density requests.

The Proposal

The owners of CRC put forward a formal proposal to the community on May 7, then resubmitted an amended plan a week later that now stands as their first official proposal for developing the Cape.

There is lots of material here with many maps. Some of the key elements to take note of include:

• The density request, which now amounts to 490 units
• There is no longer 100% waterfront protection.
• The lighthouse area and a large chunk of the south slope are now slated for rural residential housing.
• Only 30% of the land is wilderness park, in the southeast corner of the property.
• There is a concentrated development hub area (village) on the central west side.
• The development adds extra density in the form of an 80 room Inn with restaurant, a 150,000 sq. ft. seniors’ ‘Campus of Care’ facility, 5000 sq. ft. of commercial, a school, playgrounds, community center and amphitheater.
• The design includes a complex sanitary sewage grid, with a sewage treatment plant sitting on the park border right over the south slope.

Negotiations to Come

For many of us close to the negotiations, this proposal is a disappointment. It creates a wide gap between what our community representatives have been asking for and what the owners seem willing to give. Surprising really, because they have publicly stated that they want to close the deal with the current council and before the upcoming November elections (and several councilors have publicly stated their willingness to work to the wire, even through the fall campaign). The municipality’s message has been consistent and clear—smaller development, larger park, all within OCP density numbers—as a basis for accelerating the process.

But that’s definitely not where we’re at. The proposal seems to miss the critical importance to our community of protecting the Cape area itself. The owners have taken a big step backwards from their original concept, dating back to their first public meeting last September, which dangled the enticing prospect of 100% waterfront protection.

Developers in communities like ours always like to market their planning around the ‘neighbourhood’ moniker, and this plan is no different. But a closer look at this proposal, with its broad and fractured development footprint, its massively ambitious and expensive pre-building infrastructure, its consistently over-scale imagination, suggests that the underlying thinking still falters from what has hobbled the planning from the start: big ideas coloured by a ‘mainland’ context, imaginative planning perhaps for a city, town, or community in the Okanagan, but definitely not (or at least, not yet) a plan consistent with Bowen Island’s dreams for itself.

And still no wild, contiguous, marine based park representing a minimum of 50% of the CRC lands, the goal of so many of us who love that land and seek to preserve CRC’s extraordinary aesthetic and simple beauty.

The Struggle Ahead

A lot is about to come in to play as the now intensifying negotiations over the Cape heat up. First and foremost, any discussion about a development on Cape Roger Curtis has to reflect our concern for both the values the land has to offer and the quality and impact that any development will have on all Bowen Islanders. The immediate struggle looks like a battle over density and over a park boundary that will need to include the southwest corner/lighthouse area. Yes ownership has been generous to date, but they simply must be encouraged to go further. They have a unique opportunity to help create a significant park legacy.

But the park and the development are not yet what we want them to be. We must steel our resolve and bring to bear every opportunity at our disposal: use negotiating tools such as density transfer, eco gifting, amenity exchanges; bring to the table key players, such as BC Parks, The Land Conservancy, the GVRD (now Metro Vancouver), etc. who to date have only been circling the negotiations; and initiate a Bowen fundraising campaign, to start soon, that will demonstrate local determination for a successful, made-on-Bowen outcome.

There’s lots of work still to do, with much of it already underway. However, the mood amongst all the parties involved remains positive, and an inspired resolution feels tantalizingly closer.

By Stephen Foster
On behalf of the Cape Roger Curtis Trust Society

by Julie Andres

Bowen Island Undercurrent, April 11, 2008

Mayor Bob Turner gave a round of compliments to The Cape Roger Curtis Trust Society at their AGM last Saturday. “You deserve credit for your professionalism and for seeking legal advice,” he said. (See ‘Fifty-eight-lot subdivision application for the Cape shouldn’t be on the table’, the Undercurrent, April 4, or go to www.bowenislandundercurrent.com and click on the Letters tab in the main menu.) “The outcome here depends on quality and respect, and I applaud the Trust Society for their approach,” the mayor added.

The Trust Society’s mandate is, in part, “To ensure that as much as possible of the the Cape Roger Curtis lands remain in their natural state”.

In audience handouts the Trust Society distributed a three-page, month-by-month list of their preservation activities for the Cape since January 2003, when they received a Certificate of Incorporation under the Society Act. Commenting on the list, Mayor Turner said, “Many more pages will be added to this list. Patience is everything, and the Trust Society will be an important player over the long haul.”

The CRC landowners’ plan for development currently proposes over 60 per cent—including all waterfront—as dedicated park, but a much higher number of units than allowed under current zoning. The starting number discussed at the AGM was 224 units, which, according to Community Planner Jason Smith, is the number envisioned for the property in the Official Community Plan.

Council has assigned the proposal to the Greenways Committee, the Civic Facilities Working Group, the Sustainability Framework Working Group, The Affordable Housing Working Group and the Advisory Planning Commission for review. Each group is charged with providing a report on the plan to council. In their minutes of Feb. 6, the APC passed a motion by unanimous consent that read: “The APC recommends that Council consider utilizing alternative approaches to calculating density in a creative manner, such as floor area limits and/or bed unit counts, recognizing that any alternative approach be cognizant of equating to a dwelling unit yield of 224 units.”

The other above-noted referral groups, which are appointed and funded by council, are either not represented on the Municipal website, or their minutes are not up to date.

The owners of the Cape, (acquired by Don Ho, Edwin Lee, Wolfgang Duntz and others in August 2004) were represented by their project coordinator Mark Sager, who said they have a good working relationship with everybody involved. “We are optimistic that both sides are going to find middle ground. We expect to have another public information meeting in May and a formal public hearing in early September,” he said.

At their public information meeting in December 2007, the developer’s exhibits showed expectations that the process would move along much more quickly than it has. The timeline graphic presented then showed adoption of a rezoning bylaw by March 2008.

True to form, the Trust Society included a high quality educational component in their AGM. Research ecologist and Bowen Island resident Alejandro Frid gave a talk about predators and climate change as they pertain to CRC. Lindsay Coulter, a conservation policy analyst with the David Suzuki Foundation spoke about her work around the province “pleading the case for B.C.’s biodiversity and the need for change in policy to protect it”.

Letter to the Bowen Island Undercurrent (04-Apr-2008)

We urge council to exercise its authority to require the owners of the Cape Roger Curtis (CRC) lands to withdraw their application for a 58-lot subdivision for the following reasons:

The Cape Roger Curtis Trust Society (CRCTS) has received legal advice that it is highly unusual for municipal councils to enter into a rezoning process while there is a subdivision application on the table. The public continues to perceive the subdivision application for 58 lots as a real threat if municipal council does not agree with the rezoning proposals of the CRC owners.

Community groups (including CRCTS) have spent considerable volunteer time attending meetings and reviewing and commenting on the CRC proposals, with a view to ensuring that the rezoning of these lands meets the goals and objectives of Bowen Islanders.

The subdivision of these lands into 58 ten-acre lots does not meet the goals and objectives of the Bowen Island community as expressed in the Official Community Plan (including the specific requirements set out for the CRC Development Permit Area), nor does it meet the stated public interest as expressed in the council’s resolution of February 2006 (Municipal Framework for Planning the Future Use of the CRC Lands).

The fact that the approving officer has neither approved nor rejected the 58 ten-acre lot subdivision does not relieve council of its responsibility to make it clear to the owners that a condition of entering the rezoning process is withdrawal of its subdivision application.

Given the length of time since the initial subdivision application (September 4, 2004) and the lack of any response from the CRC owners to the conditions set out in the July 7, 2006 letter from Michael Rosen, there is considerable doubt as to whether the application would be legally protected by the one year time period under section 943 of the Local Government Act, despite the extensions granted by the municipal planners.

Without demanding the withdrawal of the 58-lot subdivision application, council appears to be acting from a position of weakness, which inevitably affects its negotiation strategy. This is not serving the interests of the community.

If the current subdivision application is not legally valid (also based on good legal advice), then why not remove it from the table?

Pamela Dicer, Peter Drake, Stephen Foster, Jean Jamieson, Marion Moore, Nerys Poole, Jan Wells
Directors, Cape Roger Curtis Trust Society