by Danny Zanbilowicz
The Comox Valley Regional District has been in a power struggle with a development company based in Nanaimo- 3L Developments Inc, which wants to turn land it owns near the confluence of the Browns and Puntledge Rivers, mostly covered with trees, and a popular recreational area which includes Stotan Falls, into a subdivision of around 741 homes and 10,000 square meters of commercial space.
The company’s plans would blow open the Regional Growth Strategy, which is meant to control and channel development in a way that is consistent with community values of sustainability.
It has become well known to local residents after temporarily closing down trails in 2012, and this year, setting up a toll booth on the well-used Duncan Bay Main road. 3L seems intent on charging the public for access to Stotan Falls this summer. Many are wondering who is to blame for this ongoing war, which is restricting access to cherished recreational areas which have been openly available for generations.
Comox Valley Regional District Regional Growth Strategy Bylaw No. 120, 2010
Back in 2008 when the Comox Valley Regional District was created out of the Comox/Strathcona Regional District, the provincial government mandated the creation of a Regional Growth Strategy (RGS), based on the Local Government Act (LGA).
Not every regional district has one- of the twenty-eight RD’s in the province, ten have growth strategies, generally in areas of high growth like the Comox Valley. In 2007, growth projections
in the Comox Valley were predicted at 50% over twenty years. In fact, growth has occurred at a rate of 29%, which is one of highest in the province.
Ann Macdonald, General Manager of Planning and Development Services at the Comox Valley Regional District, says the strategy is “intended as a vehicle for communities to identify issues for growth, to promote sustainability goals, to protect the quality of life, preserve rural areas, help plan for investment, infrastructure, water sewers and lights.”
After three years of intensive consultation with members of the community, First Nations, and professionals, the growth strategy was adopted in 2011. It identified where growth and development should occurprimarily within our three municipalities- Courtenay, Comox and Cumberland; in settlement expansion areas on their periphery; and three “settlement nodes” in the rural areas – Mount Washington, Saratoga Beach, and Union Bay.
These all would account for 90% of the anticipated growth, while the remaining 10% would occur in the rural areas.
In general, “The RGS includes a series of goals to achieve progress on sustainability, efficiency of infrastructure costs, quality of life in the rural areas, protection of agricultural lands and natural ecosystems with an overarching goal to reduce urban sprawl.” Included in the strategy was section 5.2 which outlines the procedures for amendments.
Around the time when the strategy was being created, 3L Developments began a series of interactions with the regional district.
The property it owned at that time was zoned “Rural Twenty” (RU-20), limiting lot sizes to no less than 20 hectares. It was zoned as a “settlement expansion area” but at the end of many public meetings and discussions, the zoning was changed to “rural settlement area” for the final draft of the RGS. In either case, the zoning prohibited increased density of housing.
In meetings between district staff and the developer in the spring and summer of 2007, the developer was told that “the CVRD was not able to provide any guarantees that their proposal would meet the public and the board’s long range planning needs.”
In other dealings, the developer offered to sell the property to the RD for $9 million, which was rejected, as there is no fund available for such a purchase, and a deal where parkland was offered in exchange for permission to build a 700 plus lot subdivision. The RD rejected that deal too.
In May of 2013, the developer submitted an application to amend the RGS to proceed with the development of its Riverwood project. From the proposal: “Master Planned Mixed Use Community (residential, commercial, and recreational); 10 to 15 year build out Built upon the social, economic, and environmental elements of sustainability; Will significantly contribute to the economy of the region through $1.3 million in taxes annually, $360 million in direct and indirect expenditures, and 2600 man years of employment; No infrastructure cost to the Regional District as project is totally self-sufficient in terms of water and sewer; LEED targeted; Total Site Area of 370 acres; 185 acres of public parkland dedication; 9 kilometers of trails; Provision of public access to the Browns and Puntledge Rivers with adequate parking; and facility improvements such as washroom/change rooms; 741 lots residential units (single family and patio homes); Dedication of currently private road into the public hand to ensure access to public
Getting an amendment to the RGS is a big deal- the LGA says that an amendment is as serious as creating the strategy itself- it requires consultation, process and unanimity of the regional board: this is the “standard” amendment.
But there is a provision for a “minor” amendment, which requires less process, and only two thirds approval from the board. The board gets to determine whether an amendment is “minor” or “standard”.
In all the other growth strategies in the province, only municipalities can apply for amendments to the strategy. Property developers must work through their municipalities to achieve an amendment. Our growth strategy is perhaps the only one which allows a member of the public, such as a developer, to submit an application directly for an amendment.
When staff received the developer’s application, they created a report which advised that the application not be pursued.
According to the report filed on Jun 4 2014- FILE: 6410-20 / CV RGS Amendment- “An amendment to the regional growth strategy to enable this development will essentially lead to either the creation of a new settlement node or the extension of an existing settlement expansion area … An amendment to enable this development is not recommended because: 1. Existing settlement nodes have been identified in the RGS managing growth policies … as areas that are intended to accommodate compact forms of development and areas that are not contiguous to municipalities.
… These three settlement nodes …have significant development capacity well into the planning phase. … 2. Existing settlement expansion areas are intended to be developed with publicly owned water and sewer services … in a manner that does not detract from compact growth options within municipal areas, with a four hectare minimum lot size. This proposal includes privately owned services with residential lot sizes that are well below four hectares … Rural Settlement Area designation is not to be “urban or suburban in form”, but rather should accommodate housing, employment and commercial needs in a manner that is respectful (i.e. in scale and form) of the surrounding rural and agricultural context.”
The primary objection to admitting the amendment is that the proposal with its high density would create a brand new settlement node, contiguous with a municipality, whereas the other three existing nodes are spread out, and more importantly, already provide ample capacity for growth. Other concerns are that the proposal includes privately owned water and sewer services, instead of the preferred publicly owned services.
The Court Challenge
After his application was denied, the developer launched a court challenge, which claimed that the RD was obliged to accept his application and initiate the requested amendment. On May 6, 2015 BC Supreme Court Justice Emily Burke agreed, and ruled in the developer’s favour.
This began a period of concern for the RD, which feared that the ruling meant it could lose its ability to determine whether an amendment was minor or standard, and that it would be compelled to proceed with accepting any application for amendment.
They appealed the decision in the BC Court of Appeal and on April 6, 2016 the judge decided that while the RD was indeed required to accept the application and begin the relevant processes, it was the decision of the RD Board as to whether the amendment was minor or standard, and ultimately up to the board to decide whether to move ahead with an application, or reject it.
The developer won the legal challenge, and the RD must proceed with the application, but this is very far from assuring the application for amendment of the RGS will be approved. The RD has expressed its objections, and these have not changed. The proposal is seen as fundamentally inconsistent with the goals of the growth strategy.
So far, there has been no follow up on the part of the developer to pursue the application.
Ann Macdonald says: “We received the court order last April, sat down with 3L, and asked them how they want to proceed. Should we continue with the original application, or did they wish to make changes? They indicated they wanted to review their options and were not ready to proceed. It’s been a year since we had the court direction. After a year an application is inactive normally- we send a letter, close the file; it’s not on the books forever. But in this case, there is the court direction. We are going to be proceeding in carrying it out, convening the technical advising committees, steering committees, prepare a preliminary report, and submit it to the board. They will decide whether to proceed with a minor or standard amendment. We will try to get a report compiled in the summer.”
As it happens, this is also the year (once every five) when the RD must explore whether to conduct a full review of the RGS. This will happen over the course of the next few months, to be completed
sometime later this summer.
By the way, it is not that the project itself is so bad. Macdonald says: “Were this project in one of the settlement nodes, it would be fine. There are good ideas of sustainability. It is not the project per se- just the location.”
Note– 3L owns the land, the roadway, and even the bedrock under Stotan Falls. All are private property and they are entitled to do what they want, including shutting out the public. This is not uncommon on Vancouver Island, where we are still dealing with the repercussions of ridiculously generous concessions to the people who created the rail line infrastructure.
But they don’t own the water- the province does- if someone could suspend themselves in the water and not touch the ground, they would be in their rights.
And Policy 67-3 in the fresh water section of the Comox Valley Official Community plan makes it a requirement that developers work with the province for all new development to facilitate beds of
privately owned water bodies to be returned to the Crown. Yay!