Council Report March 12, 2018
You Better Watch Out (We're telling you why)
Agenda Item #24: Councillor Ney’s Secondary Suite Implementation Resolution (deferred from February 26, 2018):
As reported and anticipated by Oak Bay Watch, the Resolution to Implement Secondary Suites was placed as one of the last Agenda Items (#26). Since 2012 there have been many complaints regarding placing important public interest items last on very long agendas. Council, already having fielded many transparency complaints, is now limiting public input and building barriers which discourage residents from hearing Council discussions and debates on agenda items that will have a direct impact on them.
This Council meeting was no exception. The Council Meeting started at 6:00 pm with a Public Hearing and three associated Bylaws to be considered. This was followed by the regular Council Meeting that allowed six residents to speak and included 13 civic grant requests, 7 sets of Council and Council Committee minutes, 2 Council reports and new business. All this was before Councillor Ney's land-use change. Her secondary suite densification resolution was finally debated at 9:30 pm. It is no wonder that members of the public did not attend a second time. They would have had to spend an entire evening listening to agenda item after agenda item that did not interest them, and most likely need to go to work early the following day. Could this outcome have been the intention of the Mayor’s deferral strategy?
The Council discussion on Agenda Item #26: Councillor Ney’s Resolution to Implement Secondary Suites in Oak Bay.
Councillors Murdoch, Braithwaite and Zhelka provided compelling arguments for a well thought out planning process explaining how: enforcement costs; suite closures and relocations; parking requirements; taxation; traffic and all the issues Council has committed to address in the official Community Plan would be rigorously researched, revenue sources identified and adverse impacts minimized.
Councillors Braithwaite and Zhelka voted against approving the resolution. Councillor Murdoch moved an amendment for the above comprehensive plan to be part of the resolution – his amendment was defeated 4 - 3 with the Mayor and Councillors Ney, Croft and Kirby against.
The Chief Administrative Officer (CAO) is presently nowhere to be found – and an Acting CAO has been guiding the ship for several weeks. The District is also without the Deputy Director of Corporate Services who left on short notice. This was also the situation with the departure of the Director of Building and Planning who left almost overnight. A new Building and Planning Director has not been found. The District planner is currently filling this senior staff role. In short, we are in a state of administrative transitional confusion and are woefully short of experienced senior staff. The staff and resources they direct will also be tied up for some time.
On a number of occasions our missing CAO has made it patently clear to Council, in her reports and verbally, that staff are currently busy implementing Council’s present agreed-to priorities. The CAO explained that it was not possible at this time to suddenly stop and reassign work plans. Much of the priority work is interconnected and involves several departments, in addition to consultant’s contracted timelines.
She has also pointed out many of these priorities must take precedence over development initiatives as they have a direct bearing on them. For example:
These charges would help to defray the development impact costs currently being paid for by Oak Bay’s taxpayers. Year after year has gone by and still Council is no nearer to implementing them. As previously reported by Oak Bay Watch, other Communities have had these charges in place for decades.
None of this made any impression on the four pro-densification Councillors. They seemed oblivious to the ramifications of such a major undertaking near the end of their Council term. They must know the Official Community Plan states secondary suite policy and regulatory framework alone will take 1 to 3 years to complete.
Councillor Kirby stated that there has been too much talk about protecting Oak Bay. We have to contribute to our tax base. We have to do our part and provide affordable housing. Although Councillor Kirby did recognize suite rental is different than lowering the cost of house prices, she has apparently failed to read the BC Union of Municipalities (BCUM) 2018 Report that was referenced in Councillor Ney’s Secondary Suite resolution. It states municipalities do not have the authority to tax secondary suites,
BCUM 2018 Recommendation to the Provincial Government:
“Increasing property tax flexibility –creating affordable rental housing is going to require the use of an array of policy tools. It is recommended that the provincial government provide local governments with the authority to create property tax sub-classification for affordable rental property”.
Councillor Kirby also failed to understand that a well thought out and planned regulatory system would cost existing taxpayers a significant amount. The Provincial Secondary Suite Guidelines points out the difficulties municipalities have finding financial resources for staffing and enforcement costs. She also has missed the point: protecting the majority of residents without suites from all the harmful impacts must be a prime consideration. Councillor Kirby was adamant and repeated that she wanted to get this land-use change bylaw approved before her term ends.
Councillor Kirby voted for the Resolution.
Councillor Croft who has been a staunch advocate for suites throughout his first term said he was in favor of approving the Secondary Suite zoning legislation first. Then he said to deal with the impacts of Airbnb, enforcement costs, parking and other problems “one at a time”. It appears Councillor Croft also did not read Councillor Ney’s resolution’s suggested reading: The BC Union of Municipalities 2018 Report states,
“Enforcement can be very costly for local governments and may require continuous fine-tuning as property owners adapt to evade enforcement activities, and no one city has been able to develop a policy framework to effectively enable and enforce short-term rental activity”. Not to mention the tax, traffic and parking impacts.
Note: Councillor Croft will not be on Council to deal with the harmful impacts: one at a time”. However, Councillor Croft voted for the Resolution.
Councillor Ney said she had heard “loud and clear” this is what people wanted. She did not say what her sources were to back up her statement. She said we have had a “robust public debate” on the resolution and should not wait for another one or two years to put it together. Councillor Ney, who was at the packed Infill open meetings, held at the University of Victoria, surely must have heard “‘louder and clearer” that this is not what the community wanted. She also somehow does not understand that the total of 9 residents who were allowed to speak to this issue at Council is a far cry from constituting a “robust debate”.
Her “robust debate” comment is particularly disturbing as Councillor Ney is the Chair of the new Mayor’s Public Engagement Task Force. She also, apparently, did not hear a resident who earlier in the meeting, had explained that the District’s recent surveys show quite clearly that secondary suites are not a community priority. However, they are certainly a real estate and property investor priority. An Oak Bay secondary suite land-use change would add significantly to competition for housing, inflate real estate commissions and also provide much more rental income for those with investment properties.
To highlight the extent of the problem with this Secondary Suite Resolution, Councillor Ney was candid: she said she did not know if her intent for bringing this Resolution forward was to regulate “existing suites” or to open up Oak Bay to Infill Development in single-family neighbourhoods. Her only response to Councillor Zhelka who tried several times to get her to clarify her purpose for introducing her controversial resolution to Council was, “I am not a planner”.
Councillor Ney voted to approve her Resolution.
The Mayor indicated he was in favor of the Councilor Ney’s Resolution. What is disturbing, however, is he has previously been quoted in the press as justifying it, implying he had already made up his mind to approve. He stated in the Times Colonist on February 28th, 2018, “the resolution has been misunderstood. Really what it aims to do is just set a start point for what will be a very robust public engagement process over the issue of secondary suites”. This was before the March 12, 2018, Council Meeting when the resolution was brought before Council for debate and limited public input opportunity. The Mayor’s downplaying the Resolution’s intent to implement Secondary Suites in Oak Bay in the media may also have contributed to residents not attending the March 12, 2018, Council Meeting.
The BC Union of Municipalities in the 2018 Housing Strategy Report had this to say:
“The role of local government under B.C. law is not to act as an advocate for new development – that would actually be contrary to B.C law - but to act as a neutral quasi-judicial decision maker”.
The better question is, if the Mayor wants us to actually believe what he is quoted as saying, why doesn’t the Resolution say its purpose is, “a very robust public engagement process over the issue of secondary suites” and not, as indicated by the title, a secondary suite zoning implementation bylaw process.
The Mayor voted to approve Councillor Ney’s Resolution.
Oak Bay Watch’s Perspective.
Secondary Suite Legislation (that includes all infill development – garden and laneway housing etc) has been an objective of the Mayor, Councillors Croft, Ney, and Kirby from day one in this Council term. They have made a number of attempts to get this legislation moved forward but have had to trend softly knowing it is not what the majority of residents of Oak Bay want. In the last estimates Committee in April 2017 by the usual 4-3, vote they even went so far as to transfer infrastructure reserve funds in order to pay a consultant to implement secondary suites.
Why have these four been unable to achieve their suite and infill legislation objective before now?
As previously indicated, the circumstances and process surrounding approval of Councillor Ney’s Secondary Suite Resolution approval process was highly irregular (See Attachment #2). Not only was it completely lacking in transparency, it had no bases in fact. If followed through to the approval stage of a groundbreaking, densification bylaw, this will be the result of manipulation and driving an over-development agenda. It most likely would be approved by only half of Council plus the Mayor - a slim, tie breaking, mayoral vote will decide Oak Bay’s single-family neighbourhoods’ future. A Mayor’s role with split Council issues, is to vote to maintain the status quo until some compromise can be found. It is not to break the tie by consistently voting on the side that favours approving and spending tax dollars on development initiative
The Mayor will single-handedly have made the decision to approve this Secondary Suites Implementation. He will have allowed secondary suite legislation to be pushed forward without time for adequate public participation, without the necessary staff resources and lacking solutions to the many impact problems. The Mayor must know he will give the next Council the job of finding tax dollars to fund the expensive regulation costs; attempting to provide existing residents with some level of protection; controlling infill growth and dealing with all of the harmful impacts including the unsolved Airbnb problem.
If pushed through at what will have to be a very rapid pace this will result in the largest, unplanned densification in the history of Oak Bay’s single-family neighbourhoods. This Secondary Suite Resolution has disaster written all over it?
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The Attachments are resident submissions were presented to Council March 12, 2018 and February 26. 2018 Council Meeting Agenda Item #26 Implementing Secondary Suites in Oak Bay.
March 10, 2018.
Att: Warren Jones
Director of Corporate Services
District of Oak Bay
Re: Agenda item 25 - Secondary Suites Resolution
Dear Mayor and Council: Please accept this submission. My intention is to point out inconsistencies and to hold you accountable for the inappropriate handling of the above-mentioned matter. Unfortunately, I am unable to offer you constructive suggestions at this time, as I have exhausted them over the last 4 years.
Councillor Ney’s motion emphasizes the legislative mandate and the OCP provisions that justify the legalization of secondary suites. It also mentions the 2016 satisfaction survey which, on several occasions has been used to legitimize council’s decisions, often times resulting in the lack of so-needed public engagement in important issues. The words of the OCP have often been used, when convenient, for the same purpose.
I have recently offered written comments on the newly approved document produced by the Mayor’s Task Force on Public Engagement. I also addressed Council last February to speak to the same issue, when I argued that:
“The public engagement document was unacceptable” and that “This is an election year. Public engagement as proposed will not work due to the possibility of council undermining resident’s engagement”.
Ironically, this is exactly what appears to be happening now with this unexpected secondary suites motion. I recall that I was told then that the fact that this is election year had nothing to do with the fact that council should proceed with the public engagement proposal.
It seems reasonable to assume that some of you are now feeling pressured to solve the secondary suites conundrum as your term is just about to elapse. By doing so, however, you are ignoring previous procedures and effort, including significant staff time dedicated to writing many reports and other tasks.
The fact is that specific direction on secondary suites was given to staff in April of 2017. Staff was instructed to contract a secondary suites strategy. Following the usual 4-3 split vote, Council decided back then not to proceed with a housing strategy. This was also the commendation of the Advisory Planning Commission.
Since then staff has not been able to deliver what they had been directed to do, both because the HCA initiative all of a sudden became a priority and also due to heavy workloads. Indeed, staff seems to be very busy. An alternative modus operadi is now being proposed by Councillor Ney to make secondary suites happen.
I have the feeling that there is a widespread assumption among some of you that the community is divided into NIMBYs and those in favour of secondary suites. In my opinion, this is not so. At Council last March 9, most people were not against secondary suites. Rather, they were urging Council to come up with a proper strategy to implement, assess proper location, implications, as well as complete the preliminary steps described in the OCP before suites are “implanted”. Most attendants seemed to understand that a simple ‘copy and paste’ of bylaws from other municipalities would be irresponsible, expensive and, mostly, ineffective.
In my opinion, legislation is pointless if it is not perceived by the community as legitimate (top-down decisions often do not work). In order to achieve its purpose, any effort to legalize secondary suites would require people to fully understand and buy into a secondary suites legalization scheme. Victoria has now acknowledged that extra money will need to be spent to contract a buy-in strategy. Only 35 suite owners have come forward to register their suites in Victoria since legalization was passed, and only 200 in Vancouver.
I feel strongly that Councillor Ney’s motion was unnecessary. It reopened a wound that was healing nicely (after great uproar last April, when advocates for a “housing strategy” packed the Council Chambers to end up seeing their expectations defeated).
It also seems reasonable to expect that senior staff should have advised Council that Councillor Ney’s motion was/is inappropriate, as a previous resolution was already in effect. The same mistake seems to have been made when Council decided to approve a public engagement session, ignoring a motion brought forward by Councillor Braithwaite on the same procedures matter. Council must strive to build its actions on a step-by-step basis. Motions and resolutions should not fall into a black hole.
Finally, I would like to make clear that I am not against secondary suites or any other planned and targeted housing options. I am, however, extremely disappointed by the lack of constructive leadership by some of you when dealing with secondary suites. In my opinion, your inability to handle this matter properly is causing unnecessary stress, as well as dividing the community in a way that I have never experienced before. That all being said, I request that council:
1. Reject Councillor’s Ney motion, as it is unnecessary.
2. Refrain from rushing into approving last-minute-election-year decisions that significantly affect the community, particularly those related to land planning and use; choosing rather