A Gathering Storm (part 2)

A sensitive wetland under siege lies at the center of a brewing legal battle

Questionable Qualicum development in protected ecosystem

After introducing the wetlands by Laburnum, now we examine issues of legality, transparency and the larger threat to our environment & democracy. Today, thousands of people are uniting to demand this wetland be restored.

In February 2020, before COVID-19 dominated our daily lives, members of the Qualicum Nature Preservation Society happened upon the development of a vital wetland ecosystem, which purifies our air & water and serves as vital natural flood mitigation infrastructure.

A Brief Background

As sensitive ecosystems began disappearing at an alarming rate — especially on east Vancouver Island — the federal and provincial governments worked together to create the Sensitive Ecosystem Inventory to map out the remaining ecosystems and provide protective policy recommendations to municipalities.

Decades ago in Qualicum Beach, a democratically elected council used this data to preserve SEI polygon N0408 as an Aquatic Habitat Greenway, as illustrated in Schedule 2.4. Further, this lot lies within the Little Qualicum flood plain, as depicted in Schedule 2.5.

“Town staff have consistently refused every development proposal for this parcel for over 20 years…” — Luke Sales, Director of Planning

Despite Mayor Brian Wiese’s recent public statement that this activity “does not require any special permits”, it is very explicit in our Official Community Plan that a Hazardous Lands or an Ecological Development Permit are required prior to “alteration of land or vegetation” in these areas. In addition to mandating strict preservation, our bylaws further encourage private owners to enhance the native vegetation while they own these lands.

The Hunt Begins

Upon seeing the appalling widespread devastation without an accompanying public council meeting, numerous citizens throughout Qualicum Beach reached out to answer some basic questions. What type of environmental impact studies were done? What is being built here? Was due diligence followed? Are development permits available to the public?

Initially, these many citizens were told by town officials that there is some type of exemption for single-family homes in our development permit areas; that a loop-hole exists in our bylaws where our sensitive ecosystems can be torn asunder if a certain type of building is built, rather than another.

We could have all trusted our public servants to supply the truth to citizens, we instead decided to read our OCP along with many other plans. And while it is true that there are some Official Community Plans that allow select DPA exemptions for single-family homes, this appeared to be a fabricated ad-hoc policy wholly unsupported by our own Town’s bylaws.

Unsatisfied by this obfuscation, we pushed further on in February 2020 for copies of the plans, reports and the permits necessary to even begin this type of activity.

The missing development permit

…no alteration of land or vegetation within the Aquatic Habitat or Upland Habitat Development Permit Areas shall be undertaken:

a) without a permit issued pursuant to this bylaw; or
b) contrary to the terms of a permit issued pursuant to this bylaw.

Sensitive swamps like the Laburnum wetlands stand today due to our past stringent development permit process.

So surely, as with any development that can impact a sensitive & protected ecosystem, we would assume that our Town would practice the diligence codified into our bylaws. These practices ensure that development activity will not negatively impact such ecosystems, either directly or indirectly through “edge-effects” (such as removing trees that provide wind protection).

An obvious outcome of following a development permit process will be that the activity will comply with the bylaws and not violate further laws (such as the Provincial Water Sustainability Act or Riparian Areas Regulation Act).

But to our dismay, no such process was followed. Instead, the Director of Planning has said he believes an exemption to obtain a development permit was granted verbally, and he also believes it was done by the Building Inspector. Of course, any trace of this verbal exemption has yet to be reproduced for the public to date.

The “Verbal Exemption” Process

So how does a Town grant an exemption to the development permit? While the Town has not confirmed the basis for the yet-to-be-reproduced exemption, the only applicable clause in our bylaws is as follows:

[An approving officer] can require the owner of land to provide [them] with a report certified by a qualified professional that the land may be used safely for the use intended and that the activity complies with all the requirements of all applicable Development Permit Areas. OCP p. 109

For this exemption to be granted, the town must have gathered these reports and are using them to provide oversight of the project. It should also be clear that wether or not an exemption is granted, the activity still must comply with the guidelines of the development permit area; guidelines that prohibit impervious trails, structures or the removal of trees.

“The building inspector and I are satisfied with the environmental and geotechnical reports and the exemption applies.” — Luke Sales, Director of Planning

The Environmental Report

Plentiful populations of amphibians live in these wetlands and can be found with little effort

Within the Town-supplied environmental report, there seems to be an astounding lack of concern for the actual impact of the development upon the sensitive ecosystem. The report, which failed to find any of the abundant amphibian residents, seemed to be wholly unconcerned about if this development will comply with our DPA guidelines.

“It is our understanding that the Town of Qualicum Beach has not requested a Development Permit application for development of the proposed house sites and therefore we will not provide a discussion of Ecological Greenway DPA guidelines.” — Toth and Associates Environmental Services

In fact, from the language of the excerpt above, it most certainly suggests that this mysterious verbal exemption took place prior to the commissioning of this report. The most startling finding is that this report most definitely does not certify “the activity complies with all the requirements of all” DPAs. But despite this apparent failure to meet our bylaw requirements for an exemption to be granted, the Building Inspector and the Directory of Planning remain satisfied with them, according to Luke Sales (above).

The Geotechnical Report

To this date, in defiance of transparency, the Town has yet to provide the public with the geotechnical report that is being used to justify any exemption. QNPS has obtained a “limited” report performed last August, which we believe is the geotechnical report concerning this development.

Test holes were dug on a cleared pathway (“Seacroft Road”) to determine the safety of building homes in an adjacent protected wetland. The test holes locations have no meaningful relevance to the proposed homesites

“At your request, we have carried out a Limited Geotechnical Assessment at the site of a Proposed Development at Lot C, Laburnum Road, Qualicum Beach, British Columbia.

The work comprised a limited walkover, the results of which are summarized herein, together with excavated test pits to assess the subsurface conditions. This report includes recommendations for foundations and site development.” — Core Geotechnical Inc.

So at the height of the dry season, on a cleared road that doesn’t have the same flora or soil composition of the adjacent wetland lot — and may not even technically be on the same legal lot — a report was conducted that again clearly does not meet our bylaw requirements for an exemption to be granted. Is this the report that our Building Inspector and the Director of Planning are satisfied with?

The Building Permit, please!

So our dwindling wetlands have taken another hit, before even a simple building report has seen the light of day?

As Mayor Brian Wiese stated publicly, “the owner has applied for a building permit”. What the Mayor left out when addressing his constituents was that no single building permit has been issued yet, according to the Director of Planning. So again, we stand in contradiction to our own bylaws, including Bylaw 643. On the Town website, we see:

“You may not start any stage of a project, including demolition or excavation, until a building permit has been issued.”

Part of a sensitive ecosystem now stands in ruins without so much as a building permit being issued, and we the people of Qualicum Beach cannot even depend upon our duly elected council or our bylaw enforcement apparatus to intervene. Is an investigation into what appears to be an outright violation of our Official Community Plan and building bylaws too much to ask from our Town?

A Valid Exemption or Bylaw Variance?

With a protected wetland in ruin, we surely cannot equate an exemption from obtaining a development permit to an exemption from the bylaw guidelines themselves. What is clear is that if our approving officer could possibly be provided with the proper reports (which they weren’t), they surely cannot have the authority delegated to issue a bylaw variance according to the Local Government Act; only the council has this power.

In all aquatic habitat greenways — only hazard trees may be removed — OCP p. 109

So the only way trees can be removed in this protected wetland to provide lawns, tennis courts, gardens or other amenities is if council themselves vary or amend our bylaws through an open process that involves public consultation. But despite almost every square inch of trees being removed right up to the soggy swamp, that never happened…

“I think you are probably referring to the wetlands, that…it didn’t need to come to us because there was no variance, there was no OCP change, there was just business as usual” — Mayor Brian Wiese on April 15th

The Preservation Story

As of now, we have mostly heard the Mayor’s statement about how we will “preserve the remaining nine acres in their natural state in perpetuity”. Again, what the Mayor failed to mention is that previous to this development — for decades — the entire lot was already being preserved in perpetuity. When you chip into an ecosystem and destroy wetland continuity, it is not an act of preservation, but an act of development.

Yet, we really do not know at all what will be built on this property. While we have released plans for massive homes to be built during this housing crisis, we have learned that these lots are now for sale! Has all of this fuss been generated because an out-of-town developer (Ballard Fine Homes) & realtor wanted to flip some lots for a quick buck? And now is this problem going to be passed off to another developer who gets a fresh crack at this council?

A wetland lost and turned over for profit, without due diligence or even the minimally needed building permit

The Response from our Public Servants and Town

As we have mentioned above, the Town’s response has seemed to be wholly inadequate.

  1. To date since February, we have been provided with only a single document about this development: an environmental report that explicitly did not talk about our DPA requirements
  2. We have not been provided with the legal basis for granting an exemption to the DPA process, nor have we been given any notes regarding this “verbal” exemption
  3. The council has refused calls to investigate this development prior to the widespread devastation, letting the damage accumulate until today
  4. The bylaws enforcement officer did not respond to our requests to follow the OCP page 110 regarding “unclear exemptions”
  5. Upon calls for more transparency and diligence, we were told by the Director of Planning, “you’re welcome to consult with your own legal counsel on this one”. So we surely have.
  6. Upon issuing a FOIPPA request in March, the Town almost immediately delayed their response until June 10th, 2020, exploiting the COVID-19 pandemic as an excuse.
  7. The mayor has staunchly defended the development, characterizing citizens concerned with apparent bylaw violations as “a small group of people who actively foster dissidence” during COVID-19
  8. The council has voted against transparency, denying citizens access to documents of the public record concerning this development

Is this the Democracy We Deserve?

So, with our sensitive wetlands under siege, should our democracy & environment remain in quarantine? Should we simply not care about the rule of law or the government being accountable to citizens because we find ourselves in a health crisis? Our own tax dollars fund the salaries of our Town officers and councillors, and yet we cannot even be provided with the information we request in a timely manner while trees fall in our most sensitive ecosystems.

The Sensitive Ecosystem Inventory is mentioned 9 times in our Official Community Plan. We also have a Healthy Landscapes and Sustainability Plan based in part on our knowledge of and desire to protect these areas. We have almost 20 direct pages dedicated to the protection of Ecological and Hazardous Lands, wether or not it is publicly or privately owned. Our alignment with the RDN Regional Growth Strategy — also known as the Regional Context Statement — heavily relies on our environmental protections of our development permit areas.

As our sensitive ecosystems are diminished, is this not worth protecting according to our community’s wishes and bylaws?

Yet, to question a development that seemed to have happened in complete contradiction to our community’s long term sustainable vision gets us labeled as dissidents by our own mayor? Should decades of bylaws and protections by democratically elected councils fall to the wayside based on a yet-to-be reproduced verbal exemption?

And without public consultation or due process, we the taxpayers are now on the hook due to damage to our natural flood mitigation infrastructure, which will most certainly accumulate a material cost as we move toward a wetter world with more flooding. Is it good public policy to have taxpayers foot the bill so a developer can flip some lots for a quick profit?

Ask yourselves today…are these the values of Qualicum Beach and British Columbia? Or are we a people who hold the rule of law, democracy, transparency and our environment among our utmost priorities? From our petition, it would seem that the Town of Qualicum Beach and many in the council are standing on the wrong side of history.

At this point in time, the right side of history isn’t just restoring this wetland, but investigating every single DPA development within recent years. Our council should stand with the people and open the books to ensure we have been respecting our bylaws & vision to protect the environment, such that we have a long and healthy future ahead of us.

The Path Forward

We remain unsatisfied with what can be fairly labeled a “cover-up” and an effort to mischaracterize us & the details surrounding this development. Further, we are concerned that on the current course, no ecologically sensitive areas will remain protected according to our bylaws if we cannot stop these blatant transgressions.

We have partnered with WCEL to bring accountability to the town we so dearly love. We hope to restore our democracy and environmental by all means available.

Because of our love for our Town and for our environment, we must move forward to ensure our leaders and public servants are held accountable if there has been a breach in our bylaws causing widespread environmental damage.

Upon a suggestion by the Director of Planning to consult our own counsel, we have reached out and had the details of this case reviewed by legal experts at West Coast Environmental Law. By rewarding us a substantial legal grant to restore the rule of law, they have signalled our case has merit. We have since obtained counsel and had a thorough legal memorandum constructed of all the Town’s missteps, including potential violations in municipal, regional and provincial law.

Due to our commitment to our Town, our neighbours and our children, we will simultaneously pursue every means available to us to ensure these wetlands are restored and protected henceforth, in perpetuity as they once were by law. As we move forward in the coming months, we will ensure the public is fully informed of all documents obtained from the Town and the legal process on the horizon.

Where we stand today is at the start of a long journey that is required if we are to have a functioning democracy and a healthy environment that we can all prosper in & thrive in. We hope you will all join us upon that journey, as we stand in solidarity for the values our community has long upheld.

If you wish to aid our fight for justice or donate to the legal effort, please continue to direct your inquiries to qualicumnature@gmail.com

Qualicum Nature Preservation Society

Protecting the pieces of us that grow free in the wilds