On December 4, 2013 Islands Trust Council heard two individual presentations on the need to strengthen bylaw enforcement in the Trust Area. Here is the full text of a letter from Maxine Leichter, a former GIA board member, followed a post-presentation letter from Jan Slakov, a sitting GIA board member:
This letter focuses on aspects of bylaw enforcement that are trust-wide, and not those under the jurisdiction of Local Trust Committees. I’m not questioning the long standing Islands Trust policy of giving priority to complaints and allowing violators time to comply; and I’m not criticizing the bylaw enforcement officers who are the least likely to be responsible for problems. This letter hopes to make some constructive suggestions.
In 2008, Trust Council commissioned a study, “Bylaw Enforcement and Litigation Management Review” by Roycroft Consulting Services. My guess is that some of the recommendations in this report have been implemented and others have not. However, from the perspective of the community, the same problems are still with us.
When I moved to SaltSpringIsland in 2003, I looked into why bylaws to protect the environment were not being enforced. I found out that the Development Permit Area bylaws were written in ways that make them very difficult and expensive to enforce. My attempts to make them easier to enforce were not successful and my friends kept telling me that it wouldn’t help since bylaws were not enforced anyway. Time has proven them correct. However, effective bylaw language is a separate subject. This submission focuses only on enforcement of zoning bylaws, because that is more straightforward.
Ideally, a new study would focus on actions under the control of Islands Trust since problems caused by provincial and federal policies and funding levels are out your control. A new study could:
1) Follow-up on the previous Roycroft study to report what steps were taken and if others were not taken, why not.
2) Focus on a list of most pressing problems agreed upon by trustees. The Roycroft study interviewed trustees who identified concerns but there was no agreed upon set of problems.
3) Please consider inquiring about the following list of specific concerns:
For the community, the most pressing problem is that when someone refuses to comply with a bylaw there does not appear to be any meaningful deterrent. In other words, if someone does not agree with the bylaws or wants to make money by ignoring them, they are free to do so. The only deterrent is a bylaw enforcement officer visiting them over and over and asking for compliance. Usually, those who violate have a compelling reason to do so. They are gaining a benefit, usually a financial benefit, while their neighbours who are following the bylaws suffer. Below, I’ve provided you with three examples, one that has been going on for 4 years and two that have been going on for seven years or more.
Violators are free to proceed because there are so few prosecutions. We also do not hear about tickets being issued or fines collected. Prosecutions and tickets will not provide a deterrent unless the public knows about them. Below are some of the negative effects of the failure to prosecute intransient offenders:
Effects on neighbours include noise, possible soil contamination, threats to their health and safety, reduced property values, time spent at government and neighbourhood meetings, writing letters, making phone calls, sending emails, and emotional stress. Allowing violations to continue while those who follow the laws suffer is obviously unfair.
Effect on the Community: Un-permitted uses in environmentally sensitive areas can harm the environment causing impacts beyond the neighbourhood. The entire community loses respect and confidence in a government.
Violations increase: Because it is known that violators are rarely prosecuted, violations proliferate.
Below is a list of possible causes that could be investigated. They provide hypothesis to test.
1) Is inadequate funding preventing prosecution of violators? Because funds are limited, are lawyers advising the Trust staff to obtain agreements with violators rather than going through a trial? There is little value in agreements with violators who do not keep them. Does inadequate funding for prosecution result in only a minimum number or the easier cases being prosecuted leaving many others to sit for years before they are addressed?
Legal and communication issues
2) One case took ten months from the time the Local Trust Committee referred the case for legal action until a summons was issued and then years before there was a date for trial. Are such long delays still occurring? If so, why are Trust lawyers not acting more promptly? Is this a funding issue?
3) The Trust’s policies allow violators to apply for a zone change or a temporary use permit (TUP) to stall enforcement. (See Bylaw Enforcement Best Practices Manual, pages 6 and 17). While a request for a TUP or zone change is being considered, which can take months, the violator doesn’t have to comply. After a zone change or TUP is turned down, if it takes a year to get to a court hearing, we have been told that the trust must allow the violator to apply for another TUP or zone change, which can again take months to process, etc. Is this correct? Can a Local Trust Committees adopt a policy to refuse consideration of a request for zone change or TUP unless the landowner is in compliance with current zoning and other regulations? If they must “consider” it, can an expedited process be adopted?
4) Even after violations have gone on for several years, community members have been told that cases cannot be prosecuted because the judge won’t order compliance unless the violator has been given sufficient time to comply. Based on previous court decisions, how much time do judges look for? Two of the violations cited below have been pending for seven years and one for four years. We would appreciate this issue being clarified.
5) Should the Trust hire in-house council? The money spent may provide better return than payments to outside legal firms. In-house council could do bylaw enforcement, defend the Trust when it is sued, help the trust staff draft enforceable bylaws and help bylaw enforcement staff to be more efficient and effective at gathering evidence that will support successful prosecutions.
Setting up a law office no longer requires a law library because research materials are on the internet. On the rare occasion that a lawyer needs something further, they can get it from the law library in downtown Victoria. If the in-house lawyer needed case specific expertise, this could still be obtained from an outside source. Many local governments do this. This option should be investigated but not by one of the municipal law firms in BC because they have a conflict of interest.
6) Why are we losing cases? The vacation rental lawsuit on SaltSpringIsland is a recent example. How was the decision made to sue the rental agent rather than the accommodation owners? Someone I know who has had legal training but does not specialize in municipal law, identified this fatal flaw in the Trust approach before the case was decided.
How bylaws are enforced
7) Do the bylaw enforcement officers have written procedures describing how to properly gather evidence and log their interactions with violators so that evidence will be persuasive in court? If these rules exist, can they be distributed to the public? Are bylaw enforcement officers being given the time and resources to implement them?
8) Are bylaw enforcement officers making surprise inspections where indicated? There is little point to making appointments to observe infractions that can be hidden.
9) Has the new bylaw dispute adjudication process been helpful on those islands where it has been implemented it. How many cases have gone to adjudication? Has this method worked with recalcitrant violators? If so, could examples be publicized?
10) If some islands do not have problems with bylaw enforcement, can enforcement there be given lower priority? Do all islands have to be treated alike?
11) Is there a corporate culture at the Islands Trust that does not regard bylaw enforcement as a priority? It is expensive and one can lose cases. It involves conflict which is unpleasant. How important is bylaw enforcement to management?
Bylaw Officer Morale: One wonders what the effect lack of prosecutions has on bylaw enforcement staff. Do they feel valued and supported? How can they feel they are being effective when violations continue for years? We owe them our 100 percent support.
People say, “You cannot force people to comply.” Actually, it is more likely that if bylaws are enforced compliance will improve. Scientific studies have shown that a majority of research subjects will cheat and act unethically when there is no risk getting caught, and that a majority of them will change their behaviour when discovery is more likely. (See The Righteous Mind: Why Good People Are Divided by Politics and Religion, By Jonathan Haidt, Pantheon Books, New York 2012, pages 82, 83.) That is why it is important that prosecutions of recalcitrant violators not only take place, but also be publicized.
For the Islands Trust to be successful as the unique and special form of government that it is, it needs to have the support of the communities that it serves. But lack of effective bylaw enforcement is eroding the public’s confidence in and respect for the Islands Trust. Community members who have given their personal time to provide public input on OCP revisions and new bylaws are asking me why they should bother if the rules are not enforced.
Bylaw enforcement should be primarily about protecting the community. In addition to providing services to protect health and safety, which are beyond the mandate of the Islands Trust, bylaw enforcement is the most basic and important function of local government. It is a failure of government to fulfill its most basic role if bylaws are no more than mere guidelines or suggestions. In the sphere of local government, bylaw enforcement is the “rule of law” on which we depend for a just society. It is the foundations upon which all else stands.
Here are three examples of long-running zoning bylaw violations:
One: A 2 unit building was built legally. Soon after, at least 4 additional residences were added within the building. Neighbours complained. The septic system overflowed. VEHA, electrical and fire inspection services are all inadequately funded to respond. Before a CRD building inspection visit, extra appliances and furniture were hidden. Seven years have gone by. Recently our Local Trust Committee received a request for re-zoning which was turned down. CRD says they can only correct deficiencies for permitted use for 2 residences. It falls to the Islands Trust to take action against the un-permitted extra residences. After a year, the owner is allowed to apply for a temporary use permit (TUP) for more residences again and during the time it is being considered, the owner is not under responsibility to comply.
Two: On a lot zoned for one residence, persons were observed to be living in a separate structure not allowed by the zoning. The extra structure is in a Development Permit and environmentally sensitive area. A complaint was made four years ago. The Local Trust Committee turned down a request for rezoning several years ago. The structure appears to still be occupied. The owner is free to delay enforcement by applying again for a zone change or TUP.
Three: An industrial activity commenced in a residential area over 7 years ago. Despite this obvious violation of zoning, complaints by the neighbours of noise, dangerous vehicle access and egress, and possible environmental contamination, the activity still continues. A request for a Temporary Use Permit was turned down in February of 2008 at which time the LTC referred the case for legal action. It took 10 months before a summons was filed and another three years until the case could be heard in court. By then it was near the end of the term of the next set of trustees. I was told that the case could not go to trial because the violator had to be allowed to apply for a zone change. By the time that LTC heard that request for a zone change, it was their last meeting and they left the decision to our current LTC. Our current LTC took the request for zone change under consideration and made a decision several months later. A court date came up and rather than have a trial, the violator was allowed to apply for a TUP again. We understand that some of these delays may be the result of the decisions made by the LTC. However, some delays must be from other causes.
Thank you for considering this very serious issue.
Maxine Leichter, SaltSpringIsland
Dear trustees and staff,
It felt good today to be able to speak to you about the bylaw enforcement issue. Thank you for your interest in all our presentations and for the welfare of this special place in general.
On the way home I thought of a bit of a story I want to share, a message I hope you will find inspiring.
When Elizabeth May moved out here to run for the Green Party, I just knew she couldn’t win. But I admired her greatly and did my best to help.
Of course, on election day my certitude was washed away. In Ganges I met someone who asked me where to go to vote and others who indicated in one way or another that this was the first time they were voting. To me it felt like I imagine it might have felt for Germans when the Berlin wall came down. There was this feel of a revolution.
That event has made a huge difference in my activism. I know that we never know when this may be the time we succeed.
When Elizabeth first moved here, she said the biggest hurdle she would need to overcome was our sense of defeatism. So many times we had tried to alert people to the need for change, to the idea that “another world is possible”. It felt like the system was rigged.
So I can understand if Trust staff, some of whom have been working for the Trust for over a decade, and some trustees, might feel quite helpless to stop industrial shellfish aquaculture or they may feel that there is nothing much more we can do to make our bylaw system and enforcement work better.
Each of us, no matter what our position in life, has power. I was reminded of a quote (wrongly attributed to Nelson Mandela) by Marianne Williamson: “Our deepest fear is not that we are inadequate. Our deepest fear is that we are powerful beyond measure.” Mandela said, “It always seems impossible until it is done.”
Please accept the offers of the Association of Denman Island Marine Stewards, Gulf Islands Alliance, Save the Salish Sea group and other concerned citizens to work with you to rectify problems and prevent some of the outrageous plans you heard about today, such as turning the SalishSea into a carbon corridor, from going ahead.
It need not take inordinate amounts of staff time to work on these things, especially if you make full use of the eager and skilled volunteer spirit and work we have to offer.
Each of us does have power, but alone it does not amount to much. Together we can accomplish a great deal, I’m sure.
Jan Slakov, Salt Spring Island