Opinion, Politics

SRD vs Anderson: Zoning Compliance Issue

On January 26th 2021, Currents reported on continuing friction between the SRD Board and our elected representative Noba Anderson. Readers may recall that SRD had filed a petition against Anderson and her land partners after a bylaw compliance complaint against their Cortes Island property. Legal documents pertaining to this case are now publicly available, and Currents is able to report in further detail.

Why should Cortes Islanders care about a private legal dispute? Because this litigation has implications and consequences for all Area B residents. If SRD succeeds in court, it could set a precedent instantly rendering many Cortes properties non-compliant which have previously been legal. SRD has re-interpreted the language of the zoning bylaw in a new way, outside the traditional understanding of the community and of SRD’s own planners.

Zoning Complaint Part of Post-Election Shenanigans?

As Currents has previously reported: after the Regional Director election of October 2018 in which Anderson was narrowly returned to office, several unprecedented incidents occurred. To many local observers these incidents suggested a coordinated campaign by opponents to (a) overturn the election result or (b) force Anderson’s resignation. This story has now become so long and complex that readers may wish to refer to the Timeline at the end of this article.

Among these incidents was an anonymous complaint filed with SRD just days after the election, alleging a zoning violation on the property Anderson shares with her land partners. As previously noted, such complaints are quite rare in Cortes Island history; “ratting the neighbours out to City Hall” is not part of the local culture. (This is an attractive feature for many residents.)

Likely personal rather than impact based

The very few code enforcement complaints on Cortes have generally involved fairly egregious behaviour such as intrusion on the public foreshore, tipping construction debris onto a public beach, etc. Actionable complaints pursued by municipalities often involve noxious smells, loud noises, unsightly or nuisance properties, excessive traffic, or public health risks such as unsafe housing or sewage leaks. Given that no structure on Anderson’s (and partners’) property is visible from the road or from nearby properties, the motive for this complaint seems likely to be personal (or political) rather than impact-based.

Further, it is unusual for a municipality to pursue litigation against the owner of a non-compliant property if the owner is demonstrably making a good-faith effort to remedy the situation. The affidavits filed by land partners Lovena Harvey and Noba Anderson indicate that such a good-faith effort was continuously underway after they were notified of the complaint.

We have been working diligently at our subdivision process through a series of complex steps and considerable financial cost, involving mappers, surveyors, septic installers, VIHA, MOH, and SRD. No easy task living on a remote island and during a pandemic! Now that the SRD is ‘taking us to court’ we also have to finance legal costs. […] I could understand said steps if we were snubbing the request for compliance or refusing to take responsibility for our zoning infraction. However, the opposite is true. We have been actively engaged in the process to come into compliance for 1.5 years and have been working as fast and as hard as possible given these challenging times.
——————- Lovena Harvey, letter to SRD

Cortes Island Was Working On Its Zoning Bylaw…

Anderson and her land partners knew they were out of compliance with the existing Area B zoning bylaw; however, the bylaw has not been updated since 2002. A lengthy community review process (over many years) had resulted in several proposed changes to the bylaw.

In 2013 the SRD adopted a new Official Community Plan for Cortes Island (the OCP).  Throughout the duration of the OCP review leading up to adoption of the new OCP, two distinct matters […] were hotly contested by Cortes Islanders and ultimately not resolved.  These two matters were the number of permitted houses on un-subdivided lots and the permissible size of a secondary cottage or suite.  There was a very strong push from the public to increase the permitted cottage size and the number of allowable dwellings on un-subdivided lots, though others wanted to leave the density regulations as they were. […] We were clearly and repeatedly told that, when we got to the review of the Zoning Bylaw, which would follow immediately on the heels of the OCP review, the SRD would nail down the number of permitted dwellings on un-subdivided lots and the size allowance for the cottage.
—————- Affidavit of Noba Anderson, paragraphs 14-16

A 20 Year old Community Plan

Many Cortes Islanders question the value today of the stringent limits on housing density from 20 years ago, particularly in light of the island’s chronic and acute housing deficit. Some OCP-based proposals for new bylaw language could, if approved, have eliminated the zoning violation issue for Anderson and potentially other Cortes Island property owners.

She [Ms A Nelson, SRD planner] further stated that there was a lot of will on Cortes Island to amend the Zoning Bylaw to reflect higher density.  Ms Nelson expressly stated to me that “it would be a shame to do a costly subdivision application when your land may be in the correct density in the future.”
—————— Affidavit of Lovena Harvey, paragraph 20

In January 2019, SRD put Cortes Island business on hold pending their investigation into “charges” against Anderson. While this freeze was eventually lifted for some matters, the island’s zoning bylaw process was never resumed and no progress has been made since.

SRD Re-Interprets Existing Bylaw Language

Perhaps the most worrying aspect of this situation for Cortes Islanders is that SRD–in their petition against Anderson–have interpreted the Cortes zoning bylaw in a novel and unprecedented way. Since olden times, the density limit in the bylaw has been understood to be (at its highest) “one house and one cottage/cabin on 2.5 acres,” but this limit has never constrained the number of outbuildings such as woodsheds, workshops, or sleeping-cabins that have no kitchen or toilet facilities. Many properties on the island have tiny “outside bedrooms” for visiting family or friends, in addition to the legally permissible self-sufficient, inhabitable dwellings.

SRD, in describing the property at 423 Whaletown Road where Anderson and partners reside, has unilaterally and without consultation re-interpreted this language to define amenity-less sleeping cabins, tea-houses, etc. as inhabitable structures or cabins. Their petition alleges that there are two cabins or cottages on the property in addition to five family homes. Anderson et al, in their response, assert that their property contains three family homes, one large cottage, and a number of dependent outbuildings (such as sheds and sleeping cabins). SRD is counting two such “detached bedrooms” as “cabins.”

Could Apply to a hundred Cortes Properties

If this case were to go to court, and if SRD were to win the judgment, it could set a precedent enabling SRD to declare perhaps a hundred or more properties on Cortes with “outside bedrooms” to be in violation of the zoning bylaw. SRD seems to be opening a can of worms here. How much of their staff time would it take to enforce this new, super-restrictive interpretation of the 2002 bylaw language?

Would their maximally restrictive interpretation even have been possible, if the bylaw review and update process had been allowed to proceed normally?

Litigation premature

Anderson et al also contend that SRD’s decision to litigate was premature, on two grounds. First, the property owners have been actively researching and pursuing means of achieving compliance, engaging with multiple agencies and professional consultants at significant cost (see Affidavits of Harvey and Anderson for timelines of this effort; start at item 57 in Anderson). Second, as noted above, the zoning bylaw for Cortes is notoriously obsolete and under review — and its revision has been on the SRD workplan for 9 consecutive years. One of the worst fits between the old bylaw language and the needs of today’s Cortes residents has been this very issue of density and cabin size. A close and apparently hostile interpretation of this already-contested language seems a weak basis for litigation.

I ask you to re-consider the legal petition against our land group. Can this request be brought to the Board and our case discussed? It is wasteful of taxpayers resources, our personal finances, SRD staff time and SRD Board energy.
———— Lovena Harvey, letter to SRD

Cost to the Taxpayer?

Aside from SRD’s troubling departure from a decades-long consensus on the meaning and intent of the zoning bylaw language, Lovena Harvey’s letter raises one further concern for us all : what is the cumulative cost to the taxpayer of the apparently endless series of attempts to oust Anderson from her seat on the board, or at least prevent her from doing her job?

If we add up the number of hours spent by SRD in secret meetings discussing Anderson’s alleged wrongdoings — the hiring of a private investigator for a month or more to investigate a patently absurd and malicious set of allegations — legal fees and staff hours for three separate lawsuits — the diversion of staff resources from more constructive activities … what is the running total? Is this a good use of our tax dollars?

Some see the Hall Tax controversy of 2008-2019 as the root cause of a vengeful campaign against Director Anderson’s character, career, and personal life. If they are correct, the situation has its ironic side. Surely the Campaign to Get Rid of Noba Anderson has by now cost the taxpayer enough to fund both of Cortes Island’s community halls for two or three years — and with no measurable benefit to anyone.

Timeline

2007 — Noba Anderson forms land partnership with Connie Quayle, Ryan and Lovena Harvey, Lukasz Biela and Allison Gregory.
November 2008 — Noba Anderson elected to SRD Board.
2008-2019 — intermittent struggle within Cortes Island community over the proposal to fund community halls via a property tax assessment. Anderson’s early support for the proposal, resulting in defeat via the alternative approval process, earns the permanent ill-will of staunch anti-tax conservatives on the island.
2011 — Anderson re-elected (by acclamation)
2012 — Anderson builds a small cabin near her house for her ageing father, whose advancing dementia requires care.
2012 — On being consulted, Russ Hotsenpillar (SRD Manager of Planning Services) advises Anderson that a cabin dependent on another building for e.g. cooking or toilet facilities is not a “cottage” within the meaning of the zoning bylaw.
2012-2018 — significant community effort and engagement with SRD attempting to address Cortes Islanders’ concerns about content of zoning bylaw; hottest issue is density and per-parcel limits on (and definitions of) dwelling structures.
2014 — Anderson re-elected
Sep 1, 2017 — Local residents, alarmed by financial straits of the unfunded community halls, present Anderson with petition to SRD for referendum on a hall support tax assessment. 458 signers. Hall tax debate re-ignites.
January 2018 — Anderson’s father’s cabin lost to fire. He moves in with Anderson and her husband and young daughter, taking the daughter’s bedroom.
Spring 2018 — Lovena Harvey convinces Anderson that a GoFundMe campaign would enable friends and family to help her construct a new space for her father (otherwise unaffordable). Campaign raises $3700 which Anderson uses to pay a labourer for construction work.
September-October 2018 — adversarial & contentious campaign for Regional Director seat; hall tax and zoning bylaw are talking points.
September 5, 2018 — Cortes Islanders reject modified version of zoning bylaw (sections of which were rewritten by SRD staff without consultation). SRD EASC votes to hold the bylaw at 2nd reading pending a full review including public consultation and agency referral.
October 25, 2018 — Anderson is informed that SRD Board has “received complaints” about her.
October 26, 2018 — Anderson re-elected
A couple of days later — SRD receives complaint about zoning violation on Anderson’s property.
November 14, 2018 — Anderson’s legal counsel writes to SRD board to address allegations made in “received complaints”. No response.
November 17, 2018 — Fellow SRD Directors accuse Anderson of being “morally corrupt” and suggest she should resign immediately because legal defence against allegations will be costly.
November 29, 2018 — Local paper reveals that some Cortes Island anti-tax activists are lobbying Directors from other Areas, as Brenda Leigh states she is receiving private emails from Cortes residents that will affect her vote on delaying the referendum process.
December 2018 — RCMP come to Cortes Island to investigate anonymous allegations of “election fraud” i.e. unqualified voters. No unqualified voters found. No such allegations have ever been made before.
January 2, 2019 — Petition filed in BC court by 14 Cortes Island residents calling for removal of Anderson from office, alleging that the GoFundMe campaign constituted bribery and that Anderson channeled grant funds preferentially to donors. Some names on the petition are those of known opponents of the hall tax proposal. Petition is error-riddled and later (June 10th) dismissed in court; plaintiffs’ lawyer says publicly that his clients were “put up to it.”
January 7th, 2019 — Campbell River Mirror breaks story about petition against Anderson.
January 8th, 2019 — Private investigator Craig Peterson (hired by SRD) arrives on Cortes Island to question locals about allegations in petition. Peterson’s report later released only in severely redacted form.
January 24th, 2019 — SRD puts Cortes Island business on hold, particularly the referendum on the controversial hall tax proposal; zoning bylaw review is indefinitely postponed.
Late January 2019 — SRD planning staff advise Anderson of anonymous zoning bylaw complaint. Anderson and partners begin their efforts to achieve compliance, exploring several options, communicating regularly with SRD. Progress is slow because of the need for land partners to meet and discuss each step; later Covid-19 disrupts government services.
January-April 2019 — Cortes Islanders protest postponement of hall tax and first responders service referenda. 320 constituents sign a letter condemning the disqualification petition and asking SRD to cover Anderson’s legal defence expenses.
March 7, 2019 — Anderson’s counsel again writes to SRD Board taking issue with their process. No substantive response is made.
May 8th, 2019 — SRD Board resolves not to indemnify Anderson for legal expenses incurred in defence against Jan 2 petition. No reason is provided for this decision.
June 10, 2019 —Jan 2 petition against Anderson dismissed: plaintiffs concede their allegations baseless and are held liable for costs.
October 24, 2019 — SRD passes censure motion against Anderson, alleging revelation of in camera information; eventually it becomes clear that the person to whom information was revealed was Anderson’s legal counsel. Censure limits Anderson’s ability to function in her elected position.
October 26, 2019 — Referendum finally held on Cortes Island hall tax issue. Bylaw passes with 75% majority and strong turnout.
July 13, 2020 — After consultation with counsel, Anderson files suit against SRD — orders sought include a judicial review of SRD process, retraction of the censure, acknowledgement of Anderson’s right to indemnification, and revelation to the court of many documents concealed by SRD under in camera privilege. (See also, National Observer coverage and Affidavit.).
end July 2020 — Anderson’s father dies peacefully at home.
January 23, 2021 — Anderson is served with a petition against her and her land partners, filed by SRD, claiming insufficient progress in reaching compliance. Petition suggests that defendants may be obliged to demolish one of their homes. Language of petition re-interprets Cortes Island zoning bylaw to define sleeping cabins as inhabitable structures, overturning decades of precedent.
January 27, 2021 — SRD considers launching further litigation against Anderson, based on one sentence in one email sent to one SRD staffer in the course of correspondence regarding zoning issue. SRD directors Abram and Cornfield suggest this sentence demonstrates “undue influence”. SRD does not pursue litigation.

[Featured image: Security Camera, Joe Gadd, Unsplash]

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