This first report appeared in the spring 2009 GIA newsletter.
By Maxine Leichter
Bylaws that are weak or not enforced are sometimes a major cause of bad feelings and frustration among residents and landowners in the southern Gulf Islands.
Last year, Island Trust Council commissioned a report on bylaw enforcement and litigation management by Consultant Rob Roycroft. After review and revisions by staff and trustees, Council endorsed most of the recommendations.
One initiative is to use ticketing and larger fines in cases of chronic non-compliance. Tickets can only be issued where ticketing bylaws exist, on Denman, Galiano, North Pender, Salt Spring and Thetis.
Not one ticket has been issued on Salt Spring since the ticketing bylaw was implemented more that three years ago.
The report also recommended a ‘layered’ approach in dealing with violators. It starts by making them aware of the infraction, and follows up with a verbal communication. It proceeds to ticketing and even court action until compliance is achieved.
The report was based on interviews with trustees and their bylaw enforcement staff, a review of practices by other rural local governments in BC, and comments from Trust lawyers.
It also called for reorganizing the bylaw enforcement program, hiring another bylaw enforcement officer, conducting routine follow-up inspections on development permits, and reviewing all bylaws to improve the likelihood of successful enforcement actions.
This last recommendation is critical. Unenforceable bylaws may be worse than no bylaws. They discredit the Trust and the rule of law.
To give important bylaws the best chance of standing up to a court challenge, lawyers experienced in land use matters should be recruited to assist in their drafting, reviewing and rewriting.
If expert legal help is unavailable, a good guideline to writing effective bylaws is the Green Bylaws Toolkit for Conserving Sensitive Ecosystems and Green Infrastructure prepared by the University of Victoria Law Clinic and others, available at www.greenbylaws.ca.
Bylaw enforcement is essential for the integrity and worth of the Trust Act. A Gulf Islands Alliance legal opinion, commissioned two years ago, concluded that everything the Trust does should be in defence of the Trust’s ‘preserve and protect’ mandate. Whereas traditional local governments weigh the competing values of development and protection, the Trust must give protection priority. Local Trust Committees should make certain that island bylaws and development permit area (DPA) regulations are followed. DPAs include some coastal areas, areas of ecological significance, and steep slopes.
Under DPA provisions a property owner may be required to lay out a plan as to how he will protect the sensitive area before land clearing is allowed to proceed.
Unfortunately, some DPA regulations have loopholes and appear not to be enforceable.
For example, some Salt Spring residents complain that one DPA allows lakeside owners to extend their properties by dumping soil into Cusheon Lake.
A scientific report concluded that an overabundance of phosphorus in the soil causes algae blooms which can suddenly turn toxic to humans and wildlife.
Other complaints have been made about Salt Spring’s steep slope DPA that allows a cozy arrangement in which engineers hired by landowners can determine how many trees can be cut and how much ground stripped bare on unstable slopes.
On Thetis the zoning bylaw doesn’t limit the number of accessory buildings that can be built on any residential parcel. It also fails to describe them.
The result is that a house can qualify as an accessory building, and a single residential lot can have two houses.
Residents concerned about a bylaw issue should talk to their trustees and get details on Trust Council’s stance on enforcement.