How does the local Land Use Committee make zoning decisions?

The Juan de Fuca land-use committee has enormous power over the future of the Juan de Fuca forestlands. Land-use committees are supposed to hear zoning proposals, share all the relevant documents, and listen to the public's concerns before they vote to pass a zoning request on to the Capital Regional District (CRD). The intent is to make informed decisions that uphold the community plan and sustainability guidelines — decisions that will benefit the whole community for future generations.

Now let's talk about what actually happens in these meetings.


"We're not in a perfect world" — Juan de Fuca director Mike Hicks

Confronted with a controversial resort plan opposed by thousands of people, the chair of the Juan de Fuca Land Use Committee decided May 17 that the revised proposal, and attached development agreements, would NOT get another public consultation in Juan de Fuca. Why? Apparently because too many people want to speak against the proposal. Committee chair Mike Hicks shot down the request for more review, and fast-tracked the proposal back to the regional district.

Mike Hicks found it "uncomfortable" when hundreds of people came out to the public meeting earlier this year to denounce the plan for a massive, 7-km-wide resort on the Juan de Fuca Marine Trail west of China Beach. Hicks claims to represent the public, but he's telling the press that most people want the resort. Not true.

No wonder he's afraid of another public meeting!

"Governance is not supposed to be arbitrary, or to be seen as arbitrary." — Heather Phillips, committee member

Hicks finds himself in a difficult position after voting in favour of a private developer and against the public interest on the Marine Trail Resort plan. Ender Ilkay, owner of Marine Trail Holdings group, is the West Vancouver millionaire who stands to make a windfall at the expense of damaging an enormously-popular provincial park and trail in Hicks' district. Hicks describes this plan to blast, pave, log, and install septic fields meters from the park boundary as "the best way to protect the park."

The stupidity of all this seems to be lost on the director. Perhaps he is irony-deficient?

Hicks and company could have saved themselves a lot of embarrassment by allowing another public review of this proposal. Instead, we had to get our lawyers involved and serve them notice we would sue the district and win. Why? Because subdivisions are not permitted by law in the Juan de Fuca region, and a strata development, it turns out, is a subdivision.

Report and transcript from the Juan de Fuca Electoral Area Land Use Committee meeting, May 17, 2011

Present: Mike Hicks (chair), regional director (elected)
Ted Mehler, Port Renfrew (acclaimed )
Heather Phillips, Otter Point (elected)
George Miller, Shirley/Jordan River (elected)
Neil Smith, East Sooke (appointed)
Absent: Pat Sloan, Willis Point (acclaimed),
Absent: Darren Wright, Malahat (appointed)
June Klassen: Juan de Fuca planning staff


Discussion centred on whether the Land Use Committee (LUC) should review the latest drafts of the revised Marine Trail resort zoning bylaw, its covenants and development agreements, which cover drinking water, emergency services, parkland designations, and other issues of concern to many in the community. A letter from Otter Point-Shirley Residents and Ratepayers Association (OPSRRA) asked that in the interest of due process, the updates should be reviewed, and committee member Heather Phillips took the position that the committee should also make the covenants and development agreements available to the public at an information session.

Mike Hicks was not inclined to allow another review of the proposed bylaw, mainly because it was "hard" and "uncomfortable" to listen to the public. He does not want to "go back to that high school" (the auditorium where hundreds of people registered their opposition to the proposed development). He said a review wouldn't change the committee members' minds. He said "everyone" on the LUC thought it should be left to the CRD board and not considered again. (This last disregards at least one committee member who feels the agreements should be sent to public review at the local level.) Hicks added the purpose of the LUC is to "get a job done for these people who come with their development."

George Miller gave his own reasons why the committee should not consider the proposal again. First, he doesn't like criticism from Heather or anyone else about how LUC does its job. Second, the committee is "incapable of working out fine details of covenants and agreements" and should simply let the professionals take care of it. Hicks and Miller noted the importance of listening to the experts and the developers, but neither mentioned that listening to the public is part of the committee's mandate.

The committee also heard that some five weeks ago, Phillips had raised a question about whether the development is a subdivision. (Subdivisions are not permitted under the Official Community Plan.) The planner told the committee she has not answered the question yet because it requires research and assistance from her supervisor, who is very busy. She said that the resort is not a subdivision, but a phased building strata. This was repeated but not defined, with no clarification of the difference between the two.

Prompted by the planner, the chair dismissed the whole question as "just a matter of interest," where the answers are "not going to change anyone's mind" rather than an important legal distinction. In any case, the matter remained unresolved. In conclusion, Hicks announced to the committee that they will not be reviewing the revised zoning bylaw.

Agenda item: Correspondence re: Juan de Fuca resort. Chair Mike Hicks invites Arnie Campbell of Otter Point Shirley Rural Residents Association (OPSRRA) to speak to the item.

Transcript begins:

Arnie Campbell: … I don't need to speak to it. As it's pointed out, it was put on your agenda by one of your members so let's – I'll leave it at that and I may or may not comment further.

Mike Hicks to Heather Phillips: (Inaudible) Can I speak to it then, Heather?

Heather Phillips: You are the chair, sir.

Mike Hicks: Well, it concerns me so I mean, my, my, attitude with all this stuff is, I, I, I welcome all this stuff, rather than (inaudible) so you, like, bring it out, you know, if, you know, got questions, this is where to do it.

So, on this particular one, um, OPSRRA, who Arnie, um, um, mm, oh, they wrote to the, uh, myself and Chairman Geoff Young, of the CRD board to, um, send the, uh, Marine development, Trails development back to the local land-use committee, don't consider it for first and second reading, public hearing, and send it back.

And um, so, uh, I, I wrote to, um, uh, Arnie, you know, within my usual, within minutes of getting it, maybe seconds, sometimes too fast, and said, um, that, um, I, you know, I didn’t particularly want to do that, and, um, however, if, um, I felt that, uh, I felt, again, 100 percent confident that the, uh, the members, uh, wouldn't change their recommendation and it, uh, wouldn't make any difference and, uh, it would slow down the process. But, uh, if, if OPSRRA wanted to, or Arnie wanted to, on behalf of OPSRRA, wanted to, um, uh, send a letter to the uh, land-use committee members, I'd be happy to give the email addresses, and if the majority wanted it sent back, I would consider it.

So I didn’t say I'd do it, but I'd consider it, and I probably would've done it. Yeah, go ahead, Arnie.

Arnie Campbell: I think the point's been missed, though. The point in the letter was that from our point of view, members of LUC made a decision without having all of the information and we felt that that was not adequate. Um, that members of LUC should have known what the negotiations – what the outcomes of the negotiations were between the proponent and the CRD. Um, and that knowing what was going to be in the covenant and knowing what was going to be in the phased development agreement may or may not have influenced the decision.

We were not criticizing the decision – we were not saying it was wrong – we were saying that we did not have all of the information and what we requested is, once you knew what the outcome of the negotiated agreements were, at that point we might then want to bring it back to LUC and look at it and see whether your recommendation still stood or not. And that's the point that was being made within the letter.

Mike Hicks: Yep, and, and, and I'm not, I understand that, and I agree with you. I mean in a perfect world, but we're not in a perfect world, and in my view, um, the, the volunteer Land Use Committee has given their hearts on this thing and uh, it is very uncomfortable going through this for all these folks. And I was very happy to get it to the board and let those guys earn their money – those guys and girls.

And, uh, so unless it was going to change the recommendation, I, I, I didn’t think it should be sent back, and, um, and, I told Arnie to contact everyone and everyone did say no, they didn't want it back. And that – when I was at the board, um, um, they took their suggestion, so it didn’t go unheeded. We tabled it, I tabled it at the board, and again it was voted by the other directors, so it's, it's not like I did it all myself. But it's tabled for a month, and I know June has spent a whole day with two lawyers, and we – this is tough stuff. They got lawyers and it’s a big deal.

So it's not like OPSRRA wasn't heard, it just didn't come back. And I took everything they said into consideration. I weighed it heavily and I still came to the conclusion – I want it done in the board, and and I don't want to go back to that high school. Not for a while. It was too much for, uh, for me. And, and some of my, uh, colleagues. This guy here [indicates Darren Wright's empty chair] is actually – that was enough, that the, you know, it's, is, a hard time. So anyways, that was the reason. Heather?

Heather Phillips: Number one: I am not a volunteer. I am paid $88 per session. So when we are all assembled, each meeting costs a mininum of $528 just for us to be here. Number two: I am not a volunteer. I asked for the job. I competed for the job. I was given the job. The gentleman that you just referred to, unfortunately that you brought him up, because he did not. He was appointed. He is a volunteer and perhaps, um, was not aware of what the job would be.

Mike Hicks: Well. It's just that – yeah, well.

Heather Phillips: The other point is, as I mentioned at the CRD board meeting on May 11, if this committee doesn't take responsibility for hosting the public, so the public has an opportunity to learn about and speak to these bylaws, we have not done our duty. Because it was given to this land use committee, rather than the Land Use Committee A or B, is because they don't want to give that amount of time at the board level. That's why Land Use Committee A and Land Use Committee B were originally created, because when this issue went to the whole board, it is much more than what they were elected or paid to do.

So, Land Use Committee A and Land Use Committee B were sent out into the community originally. So directors went to the community and did the job that we do now. They heard from the public, they processed the bylaws, they filtered public opinion, they came back to the board level, had a little further debate, and made their decision. That also proved awkward. They set up the Juan de Fuca land use committee –

Mike Hicks: (interrupting) We understand all that –

Heather Phillips: (interrupting) All right. But you don't seem to understand –

Mike Hicks: (interrupting) I understand a lot more –

Heather Phillips: (continuing) – you say we're volunteers and that we shouldn't be put to the trouble of listening to the public at the high school. You didn't seem to understand.

Mike Hicks: Well, I guess I was uh, I guess I was uh, (inaudible) …

George Miller: (interrupting) Point of order, Mr. Chairman. I, I, I disagree with Heather Phillips, ah –

Mike Hicks: (continuing) – well, um –

George Miller: (continuing) – going on and criticizing you and, you know, you did everything you could. We, we are a voluntary committee, even though we did get elected, but I haven't put in my bill yet for my $88 for all the meetings I've been to, and I won't. But, uh, but, uh, the thing is, is that we, we, we made the decis- decision on what we're given. And we're, we're, we're, we're given the planner's advice, and we, and we made our decision there, and we also listened to the applicant. So, it, it, there's nothing wrong with our decision. The, the fine details are worked out by, uh, professionals anyway. They're not worked out by us. We are incapable of working out fine details of covenants and agreements and that sort of thing. That has to be done with a professional. So we've done our job as far as I'm concerned and I don't want any more criticism about it.

Mike Hicks: Well, we don't have to, uh, you know, we have you know, we're not going back, and, and, it's just that, again ….

Heather Phillips: (interrupting) I object also to Mr. Miller referencing my comment as "criticism." I think I've been stating facts.

Mike Hicks: Well, then that's, that's fine, Heather …

George Miller: Fine.

Mike Hicks: … Well, it's, it's, uh, we're not here to argue, we're just here to, uh, get a job done for these people who come with their development and explain why it's dated for, and, and, it wasn't entirely my call, it was the Land Use Committee A that, uh, our planners were involved in the decision, uh, you know, they said I could go, go either way on it, it was up to me, and I was the one to make the call.

Heather Phillips: (interrupting) But what –

Mike Hicks: (continuing) But that, the thing is, I'm the regional director, and I have to make calls sometimes and I have to take a lot of things into, uh, account.

Heather Phillips: (interrupting) And governance is not supposed to be arbitrary, or to be seen as arbitrary.

Mike Hicks: Well, um…

Heather Phillips: (continuing) We have an established process. Put for- bringing forth bylaw amendments. And that involves that the public will have a chance to review the bylaw. And usually they have more than one chance to review the bylaw. It has been our experience that a public hearing is not a satisfactory opportunity because there's no –

Mike Hicks: (interrupting) I don't –

Heather Phillips: (continuing) – interaction –

Mike Hicks: (interrupting) If I can interrupt, I don't see why, then, you wrote and said you didn't want it back here.

Heather Phillips: I just –

Mike Hicks: You wrote in an email, you were happy with the thing that was going on, and that was the end of it. Now you say you want it back and I don't understand.

Heather Phillips: I would like the public to have the opportunity to review the proposed bylaw development agreement. The other piece of information –

Mike Hicks: (interrupting) They're gonna get the ah, they're gonna get the opportunity. Everyone's gonna get the opportunity. The whole world's gonna get the opportunity.

Heather Phillips: The other piece of information that is missing, that I've been asking for and do not understand, is the property ownership. What type of strata. Because that's –

Mike Hicks: (interrupting) We're gonna take – [directed to the planner] Well, that's another, that's another agenda item, is it not? [inaudible answer] We're not gonna deal with that? [inaudible answer] Well, let's deal with that then, too.

Heather Phillips: Because –

Mike Hicks: (interrupting) Let's, let's just deal with this, let's just finish this question, and then we'll bring, we'll bring that right up right away.

June Klassen: There will be two opportunities for the public – Mr. Director, there will be two opportunities for the public to review it. One will be at the board meeting. There will be a board report, ah, and the second will be the public hearing.

Mike Hicks: Well, I understand, I understand. And, thank you. And how much did you say we were going to spend on lawyers on this, on this document? $30,000?

June Klassen: I imagine we've spent that already.

Mike Hicks: So, this is a huge, huge thing, and, and, uh, and uh, we have professional planners, I think we got the best planner in British Columbia, Lapham, and June, and they're working their heart out on this thing. And it was my call, to leave it there and let it be dealt with there. And so, we can get on with – maybe – something else down here, and that's why, that's why I get the bucks.

Heather Phillips: (Inaudible)

June Klassen: (simultaneously) Mr. Director, I think the other point is, is that I hold that, from a planning perspective, what I bring to the table with the lawyers formulating these complex documents, is I've been at all the meetings, I've heard all the comments. I've collected them all, I understand what the concerns are in the community if this goes ahead. And I'm trying to ensure that the documents reflect that. That's what I feel my role. The community here spoke loud and clear what their concerns were. The documents will reflect those.

Mike Hicks: OK, one last comment. Go ahead Heather.

Heather Phillips: I'd like to gather my thoughts for (inaudible). OK, I've heard the public will be allowed to speak to this issue at the board meeting

Mike Hicks: Yeah, I guess so.

June Klassen: If it's an item on the board, you have to do a delegation just like everything else.

Mike Hicks: It's not a …

Heather Phillips: The practice here is that people can speak without going through the delegation process. It seemed clear at the last two board meetings that, um, the board is not comfortable with the number of speakers who are concerned about this issue.

Mike Hicks: (interrupting) I don't run that meeting.

Heather Phillips: Yes. You run this one. This is our meeting. That's the responsibility you've accepted, that kind of thing.

The other point I wanted to know before April 19: My understanding of these phased development agreements is they go with subdivisions. You told in April 2009 that this is not a proposed subdivision. In an interview to the Sooke News Mirror, the representative of the proponent said, "No subdivision, no strata development " Also in 2009, not in December, I'm not sure what – there were comments that "If, if it's a subdivision, it's clearly a matter the whole board should vote on."

June Klassen: (angrily) It's not a subdivision. It's a phased building strata. We have said that throughout our reports. It's a Phased. Building. Strata. It is not a subject of subdivision under the Land Title Act. It is a Strata Properties Act phased building strata. There will be different ownership depending upon how the strata is structured. There will be ownerships for the cabins, ownerships for the caretaker's lodge, and, uh, and, uh, caretakers' residence and lodges, and there will be ownership for common property. It is a phased building strata, it is not a subdivision.

Mike Hicks: OK, so maybe you have to get a explanation from June outside of this meeting so we're clear on that part of it. (Inaudible) … did you write a letter back to her?

June Klassen: I'm still trying to fine-tune it. It's very – it's not a simple, two-second letter. I've had to research the Land Title, I've had to research the Strata Properties Act, and I'm not putting forward anything until I'm comfortable with it, and I've had an opportunity to review it with my general manager, who is extremely busy.

George Miller: And your lawyer.

Mike Hicks: (Inaudible)

June Klassen: And the lawyer.

George Miller: Good, good.

Mike Hicks: And, and, you know, I guess, I guess the letter … (inaudible)

June Klassen: I'm just – I'm not – I'm not not trying to answer this letter, I just don't have the resources to do it myself. And I'm trying to get an answer to you, and you will get an answer, but I need, uh, support from the people that me – that support me. My general manager and the law.

Heather Phillips: Well, I, I've just, myself – I hope to make one or two last observations. And one is that I have said from the beginning, I don't expect information only to myself, I expect it for the whole land use committee, I expect them to have, um, an interest in the same information. And –

June Klassen: (interrupting) So you're assuming – That letter, you sent directly to me. It was my understanding that I am responding directly to you. You did not send it to all members of the land-use committee.

Heather Phillips: And my other point is, if it's that complicated to answer the question … I feel that supports my contention that we didn't have sufficient understanding of what was going on. I (inaudible) for the concept of phased building strata in the Property Act and I could not find it anywhere in the reports.

Mike Hicks: Well, we -

Heather Phillips: And, um, I don't know -

June Klassen: It was actually, I think, in the September 21 report, and I think it's probably on page 2.* If I have to pull it, I will.

Heather Phillips: (Inaudible) Thank you.

Mike Hicks: My only problem with this is that I know that, um, I know that June worked all Sunday on this, this and she's working hard on it and it's taking away from other things and I don't know if it is, if we're all that concerned about it, so maybe we're going to have to go through the chair for, you know, if it's that complicated.

June Klassen: I guess what I need to know is if it's of vital importance, will it change the decision in the land use committee's view, if you knew her answers to what a building strata is. If it's not going to change anybody's mind, if it's just a matter of interest ….

Mike Hicks: Well, go ahead, George.

George Miller: Just a comment here, to help to ease the source of Heather's concern, is that the Strata Properties Act is understood by the most legal people and it's part of the agreement. We, we have the CRD lawyers looking at this, with the Ilkay developers. So, uh, our concern is when we met, we ordered that our concerns be met, and it's complicated, very complicated. I, I, I've dealt with the Strata Act since its inception in 1972 and I still don't understand it yet. But, uh, because it's very complicated, it can be very complicated. Especially when you get different interests and things like that. So, so, uh, the, the, the experts – we've, we've, we've instructed experts to look, to look after it and, and that's it. I've got faith in our experts. There's no reason why I shouldn't have any faith in our experts.

Heather Phillips: Well, remind me. There's the phased strata agreement, and there's also the bylaw. And I'm finding both are of interest to the public, and I'd certainly like to know how we can sup- port the land-use committee to vote on them. I think it should come back to this meeting.

George Miller: Haven't we approved it once? We, we approved it on principle and the experts are looking after it.

Mike Hicks: This is not coming back to the land-use committee. That's – that's that. So, OK. So, um, we're gonna move on then.

  • Note: there is no definition of "phased building strata" and no explanation of how it differs from a subdivision in the report Klassen references.

As it turns out, all strata developments are subdivisions in this province, and therefore not allowed under the laws governing land use in the region.

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