Exposé: The Public Interest, Development Issues
and the Oak Bay Advisory Planning Commission
A Recent quote from Focus Magazine referencing what a Municipal Government’s Role must be: “the care, protection and well being of your public; that is the quality and reality of the conversation between citizens and the elected”.
Despite the best efforts of many residents and half of Council, this “conversation” and public protection has not happened. And Council’s majority slate has set its own agenda and priorities. This, along with limited input at Council meetings and unimplemented recommendations from a number of Mayor’s Task Force Public Engagement Reports, means there is little “conversation” between Council and the residents of Oak Bay. The Advisory Planning Commission (APC) for their part have prevented public input on land use and development applications at their meetings.
Oak Bay Advisory Planning Commission
Residents should be concerned, if not alarmed, by the lack of public conversation at Advisory Planning Commission (APC) meetings and the little consideration given to protection of the public interest. The Commission was formed in 2015 after residents demanded greater legislated scrutiny over land planning and reduced opportunities for political influence than would be provided by a committee. Residents wanted to avoid a repeat of the select Official Community Plan Renewal Committee that produced a document often described as ‘vaguely written and easily exploited for its loopholes’. Provincial legislation governs how Commissions are appointed and function. Unfortunately, as it turned out the Community was let down as the APC has functioned very much as a ‘Committee’ that the Mayor had clearly preferred.
The dictionary definition of “dysfunction” would aptly describe the Oak Bay dvisory Planning Commission, a deviation of what is accepted, and not functioning properly” There can be no better examples of this than:
The legislation requires the APC have a two-thirds resident membership. It is likely Oak Bay satisfies this requirement. However, what is questionable is whether APC members have the knowledge or experience to meet the qualifications listed in the Advisory Planning Commission Bylaw 4647. It is also questionable whether members of the APC can be unbiased in representing the interests of the community if their occupations dictate different mandates, standards or business interests. There has been an over-representation of members with direct ties to the Development Industry and members whose Provincial Government employment promotes housing in all forms.
There were 12 APC meetings scheduled for the period of June 2017to June 2018; 4 meetings (33%) were canceled. One member was recused (excused) due to a potential conflict of interest on 25% of the applications for developments. Meetings on average took 1.5 to 2 hours, with 2 or 3 District Staff in attendance. The role of District Staff, who cannot be members of the Advisory Planning Commission (APC), is to provide information on request and record accurate, unbiased minutes of the meetings. However, on a number of agenda items, full information was not disclosed and the minutes omitted relevant points of discussion that should have been included with recommendations to Council.
Concerns: The Short Version
The Mayor at a Council meeting stated he was aware and “grateful” the Advisory Planning Commission (APC) was working with Senior Staff on land use recommendations. This is a violation of the Local Government Act Section 461. Staff and Council members cannot participate in land planning in APC Meetings. If the Mayor did not know this was in violation of Provincial legislation (see Appendix #1), then as a lawyer, he should have known: ignorance of a law is no excuse for breaking it. As a result of this infraction, the Senior Staff participated in Advisory Planning Commission Meetings that recommended to Council that it move forward with Secondary Suites and Duplexes.
Concerns: The Detailed Version
(A) To provide incentives to retain existing houses,
(B) To prevent overly large buildings that reduced or
eliminated green space on lots and
(C) To respect setbacks for neighboring properties.
The Facilitator stated that there is evidence developers have been taking advantage of all of the exemptions provided by the 2014 FAR Zoning Committee and are “building to the maximum”.
Why has it taken the Planning Department, Council and the APC so long (over three years) to recognize that the 2014 Floor Area Ratio Zoning Changes have failed? There have been so many letters and submissions to Council and to the media pointing this out. It is inexcusable that the Advisory Planning Commission on receiving this information did not recommend a Floor Area Ratio Zoning review. And why has it also taken the APC two and a half years, with delay after delay, to develop a procedures manual and checklist to ensure applications are evaluated fairly and equitably?
There are no APC guidelines on Provincial legislation, Municipal Policies, Approving Officer Reports, Development Cost Charges (DCCs) ), Park Acquisition Contributions from subdivisions, Community Amenity Contributions (CACs) or environmental or shoreline protection. Residents are paying the lion’s share of growth and development. This is unacceptable - except to the development community.
At a recent joint meeting of Council and the Advisory Planning Commission, an attempt was made to clear up the much-discussed debate over poor Commission/ Council communication. More often than not Council has made development decisions without the benefit of the Commissions meeting minutes? Councilor Zhelka has highlighted this poor communication issue several times at Council and it was acknowledged to be a problem but no action was taken.
What is still not clear is how and when proper procedures and guidelines will actually be implemented to ensure “Council is advised on matters respecting land use, community planning, or proposed bylaws and certain permits under Part 26 of the Local Government Act?
Oak Bay Watch’s Perspective
In Oak Bay Watch’s opinion, based on attending almost all of the Advisory Planning Commission Meetings, the APC has failed to realize their role and responsibilities and that land use planning changes often have impacts that are far beyond the intended objective. Unless carefully and rigorously researched and considered, the impacts of any recommendations can result in undesirable outcomes.
The Advisory Planning Commission failed to alert the public that the 2014 Council Zoning Committee, formed to correct an overbuilding mistake made by Council in 2007, had been a total failure. The APC also recommended to Council on behalf of the Community that secondary suites and duplexes should be legalized. This was accomplished working together with Senior Staff input in direct conflict with the terms and intent of Provincial Legislation.
Such was the case, as indicated above, with the Floor Area Ratio (FAR) Zoning changes in 2014. The FAR Committee failed to retain homes, trees and avoid neighbour encroachment from overly built large houses on lots and subdivisions. The big question therefore is: If the APC member, who facilitated the training session, knew all the details about the failed attempt to correct the residential over-building where did the information come from: and who else knew and why would this important information not be provided to the Public and Council?
Advisory Planning Commission recommendations must be fully informed, carefully evaluated and, most important, consider the impact on all members of the community. The process must be fair and equitable to all. Agenda information and reports, and discussion at the meetings should be available and audible to members of the public who attend meetings. Perhaps recommendations would have had a better chance of consideration if a request by Oak Bay Watch (at the APC first meeting) to webcast Commission Meetings for residents had not been denied. It has been noted as well that the 5:00 pm meeting times are not convenient for many residents particularly for those with children.
There is plenty of evidence of the Community’s significant concern over legalizing secondary suites and duplexes, particularly with the dysfunctional land-use zoning not being fixed. Council Survey finding:” Whether Oak Bay should allow secondary suites is a matter of no small controversy”. However, this “balance of public opinion” was not reflected in the was almost unanimous APC vote to recommend legalizing suites.
Oak Bay Watch, has observed the APC’s conduct and considered its misguided recommendations. In light of all the information and submissions residents have provided to Council, it is clear that resident input and collaboration is exactly what is needed at APC meetings.
Time for a Change
Please make your best effort to vote on October 20, 2018. This election will be one of, if not the most important, election in Oak Bay’s history.
*******Please help us continue to provide you with information about Community concerns and Council decisions and actions. Oak Bay Watch members also help community groups with their specific development concerns. Donate to Oak Bay Watch - even $5 or $10 dollars provides expenses for door- to- door handouts and helps us maintain our website. Oak Bay Watch is committed to ensuring the Community gets the full range of information on budget, governance and all key development issues – a well informed opinion cannot be made without this.
(Please use Donate Button at bottom of oakbaywatch.com Home Page)
Keep informed please sign up for our newsletter – bottom of Newsletter Menu Item.
Appendix #1
January 11, 2017 APC Minutes Item 3 Facilitated Workshop
“A member of the Commission made a point of order that, in their view, staff should not participate in this workshop, other than as a resource, in accordance with the Community Charter (Section 5) and the Local Government Act (Part 14, Section 461 (5)). It was the consensus of the Commission that this would be an appropriate process to undertake and accordingly all staff, except the Manager of Planning and the Commission Recording Secretary, relocated from the Commission table to the audience during the facilitated workshop. From this point on, staff provided information only in a resource capacity when asked to do so”.
Appendix #2
One of many of the houses built after the new 'revised' 2014 Zoning Bylaw that the Community expected would result in proportionate development.
and the Oak Bay Advisory Planning Commission
A Recent quote from Focus Magazine referencing what a Municipal Government’s Role must be: “the care, protection and well being of your public; that is the quality and reality of the conversation between citizens and the elected”.
Despite the best efforts of many residents and half of Council, this “conversation” and public protection has not happened. And Council’s majority slate has set its own agenda and priorities. This, along with limited input at Council meetings and unimplemented recommendations from a number of Mayor’s Task Force Public Engagement Reports, means there is little “conversation” between Council and the residents of Oak Bay. The Advisory Planning Commission (APC) for their part have prevented public input on land use and development applications at their meetings.
Oak Bay Advisory Planning Commission
Residents should be concerned, if not alarmed, by the lack of public conversation at Advisory Planning Commission (APC) meetings and the little consideration given to protection of the public interest. The Commission was formed in 2015 after residents demanded greater legislated scrutiny over land planning and reduced opportunities for political influence than would be provided by a committee. Residents wanted to avoid a repeat of the select Official Community Plan Renewal Committee that produced a document often described as ‘vaguely written and easily exploited for its loopholes’. Provincial legislation governs how Commissions are appointed and function. Unfortunately, as it turned out the Community was let down as the APC has functioned very much as a ‘Committee’ that the Mayor had clearly preferred.
The dictionary definition of “dysfunction” would aptly describe the Oak Bay dvisory Planning Commission, a deviation of what is accepted, and not functioning properly” There can be no better examples of this than:
- The Advisory Planning Commission members were informed that developers are taking full advantage of Oak Bay’s defective zoning - and are building to the maximum however, they have not provided this information to Council and the Public.
- The Commission has held a land-use training session for Commission members that clearly promoted infill development well after Council gave way to Community pressure and discarded its Residential Infill Strategy.
The legislation requires the APC have a two-thirds resident membership. It is likely Oak Bay satisfies this requirement. However, what is questionable is whether APC members have the knowledge or experience to meet the qualifications listed in the Advisory Planning Commission Bylaw 4647. It is also questionable whether members of the APC can be unbiased in representing the interests of the community if their occupations dictate different mandates, standards or business interests. There has been an over-representation of members with direct ties to the Development Industry and members whose Provincial Government employment promotes housing in all forms.
There were 12 APC meetings scheduled for the period of June 2017to June 2018; 4 meetings (33%) were canceled. One member was recused (excused) due to a potential conflict of interest on 25% of the applications for developments. Meetings on average took 1.5 to 2 hours, with 2 or 3 District Staff in attendance. The role of District Staff, who cannot be members of the Advisory Planning Commission (APC), is to provide information on request and record accurate, unbiased minutes of the meetings. However, on a number of agenda items, full information was not disclosed and the minutes omitted relevant points of discussion that should have been included with recommendations to Council.
Concerns: The Short Version
The Mayor at a Council meeting stated he was aware and “grateful” the Advisory Planning Commission (APC) was working with Senior Staff on land use recommendations. This is a violation of the Local Government Act Section 461. Staff and Council members cannot participate in land planning in APC Meetings. If the Mayor did not know this was in violation of Provincial legislation (see Appendix #1), then as a lawyer, he should have known: ignorance of a law is no excuse for breaking it. As a result of this infraction, the Senior Staff participated in Advisory Planning Commission Meetings that recommended to Council that it move forward with Secondary Suites and Duplexes.
- As stated the APC with Senior Staff participation recommended that Council move forward with secondary suites and duplexes. However, the Advisory Planning Commission excluded public interest conditions with their recommendation such as fair taxation for police and fire, infrastructure etc; adequate enforcement; parking and examples of communities who have controlled the impacts e.g. disruptive vacation rentals by owners.
- The APC has been making zoning recommendations to Council without a development checklist and procedures manual for two and a half years. There was ample time before the first APC meeting to provide them.
- On April 3rd, 2018 the Advisory Planning Commission held an in-house Training Session on the 2014 zoning changes that have continued to allow so much over-building on lots in Oak Bay. The Facilitator also happened to be both a member of the Commission and also of the 2014 Committee that was formed to reduce the size of houses that were being built. He explained to the APC members in detail that the changes had been a complete failure (see Appendix #2). He also explained that too many exemptions had been allowed and developers were taking full advantage and building to the maximum. He referenced a series of “push-backs”, but did not explain his source.
- This “over-building revelation” he reported to the APC can be seen throughout Oak Bay and is what the public has been telling Council since 2015. However, the Facilitator’s remarks about the failure of the 2014 Bylaw amendment are not recorded in the minutes of the April 3, 2014 APC meeting. Although this information is of the utmost importance to the Community the APC failed to make a recommendation to Council for a full zoning review. Instead, the APC decided to approve inaccurate minutes and no further action.
Concerns: The Detailed Version
- December 2016 the Mayor in Council announces the District is: “grateful to the Advisory Planning Commission who are now working with staff ". The Mayor went on to say as a result the APC will bring forward housing recommendations (This is not acceptable practice, nor it is in keeping with Provincial Legislation.
- Senior Staff attended and participated in a number of Advisory Planning Commission (APC) Meetings in the fall of 2016 as well as two in January 2017. The Senior Staff's participation included a key (two-meeting) land-planning workshop that formed the basis for the Secondary Suite and Duplex recommendation to Council.
- At the January 11, 2017 APC meeting a Commission member called a Point of Order on the fact the District Staff were not in compliance with BC Legislation by participating in the meeting and workshop (see minute Appendix # 1). Despite the fact that the Point of Order was recognized and staff moved away from the table, Senior District Staff (including the Chief Administrative Officer) continued to participate in discussions that resulted in recommending Council proceed with the Secondary Suite and Duplex Legislation. The APC member who called the Point of Order later resigned citing concerns about ethical conduct of the APC.
- Note: The Advisory Planning Commission Chair at the outset of every APC Meeting announces that there will be no input from the public in attendance. It is explained that residents can express their viewpoints on land-use and development applications at Council Committee of the Whole Meetings. However, the January 11th, 2018 APC Secondary Suite and Duplex recommendations proceeded directly to Council on January 23, 2018, thirteen days later, side-stepping resident input. Worse still at that Council Meeting, the APC Chair provided her own embellished APC (3 Page) Report entitled “Rationale for APC Housing Motions”. Advisory Planning Commission members inconceivably had not been provided with a copy of her Report prior to its submission to Council.
- What is most noteworthy to consider is the reasoning behind Oak Bay’s APC prohibition on public input: even written submissions are not allowed. Other Districts allow the public to express their views on land use-changes and applications. How can APC members make informed and constructive decisions without input from residents whose interests they are supposed to be protecting? APC recommendations to Council are therefore based solely on information provided by District staff and the applicants. This process does not provide an anti-biased mechanism. Surely this represents a very limited perspective on the impact of proposals for development in Oak Bay.
- The APC has recommended that Council proceed with proposals, over objections that information is missing or incomplete. Eligibility of APC members is also highly questionable. Several members have real or perceived conflicts of interest. And it is not clear that the goals for the Advisory Planning Commission to replace Oak Bay’s Environmental and Transportation Committees have been successful. Our last newsletter pointed out how the APC and Council had failed to protect the environmentally sensitive shoreline development permit area applications.
- At the April 3, 2018 APC Meeting a Commission member facilitated an In-House Training Session on Oak Bay’s 2014 Floor Area Ratio (density) and Zoning Bylaw. The 2014 Floor Area Ratio (FAR) Committee was supposed to correct Zoning Changes that a 2007 Council Zoning Committee had made that led to clear-cutting and over-building lots. The Facilitator revealed there had been significant ‘pushback’ and the 2014 zoning changes had failed. He did not disclose the source of that information. But he made it clear that 2014 amendments to the Bylaw were not working as intended:
(A) To provide incentives to retain existing houses,
(B) To prevent overly large buildings that reduced or
eliminated green space on lots and
(C) To respect setbacks for neighboring properties.
The Facilitator stated that there is evidence developers have been taking advantage of all of the exemptions provided by the 2014 FAR Zoning Committee and are “building to the maximum”.
Why has it taken the Planning Department, Council and the APC so long (over three years) to recognize that the 2014 Floor Area Ratio Zoning Changes have failed? There have been so many letters and submissions to Council and to the media pointing this out. It is inexcusable that the Advisory Planning Commission on receiving this information did not recommend a Floor Area Ratio Zoning review. And why has it also taken the APC two and a half years, with delay after delay, to develop a procedures manual and checklist to ensure applications are evaluated fairly and equitably?
There are no APC guidelines on Provincial legislation, Municipal Policies, Approving Officer Reports, Development Cost Charges (DCCs) ), Park Acquisition Contributions from subdivisions, Community Amenity Contributions (CACs) or environmental or shoreline protection. Residents are paying the lion’s share of growth and development. This is unacceptable - except to the development community.
At a recent joint meeting of Council and the Advisory Planning Commission, an attempt was made to clear up the much-discussed debate over poor Commission/ Council communication. More often than not Council has made development decisions without the benefit of the Commissions meeting minutes? Councilor Zhelka has highlighted this poor communication issue several times at Council and it was acknowledged to be a problem but no action was taken.
What is still not clear is how and when proper procedures and guidelines will actually be implemented to ensure “Council is advised on matters respecting land use, community planning, or proposed bylaws and certain permits under Part 26 of the Local Government Act?
Oak Bay Watch’s Perspective
In Oak Bay Watch’s opinion, based on attending almost all of the Advisory Planning Commission Meetings, the APC has failed to realize their role and responsibilities and that land use planning changes often have impacts that are far beyond the intended objective. Unless carefully and rigorously researched and considered, the impacts of any recommendations can result in undesirable outcomes.
The Advisory Planning Commission failed to alert the public that the 2014 Council Zoning Committee, formed to correct an overbuilding mistake made by Council in 2007, had been a total failure. The APC also recommended to Council on behalf of the Community that secondary suites and duplexes should be legalized. This was accomplished working together with Senior Staff input in direct conflict with the terms and intent of Provincial Legislation.
Such was the case, as indicated above, with the Floor Area Ratio (FAR) Zoning changes in 2014. The FAR Committee failed to retain homes, trees and avoid neighbour encroachment from overly built large houses on lots and subdivisions. The big question therefore is: If the APC member, who facilitated the training session, knew all the details about the failed attempt to correct the residential over-building where did the information come from: and who else knew and why would this important information not be provided to the Public and Council?
Advisory Planning Commission recommendations must be fully informed, carefully evaluated and, most important, consider the impact on all members of the community. The process must be fair and equitable to all. Agenda information and reports, and discussion at the meetings should be available and audible to members of the public who attend meetings. Perhaps recommendations would have had a better chance of consideration if a request by Oak Bay Watch (at the APC first meeting) to webcast Commission Meetings for residents had not been denied. It has been noted as well that the 5:00 pm meeting times are not convenient for many residents particularly for those with children.
There is plenty of evidence of the Community’s significant concern over legalizing secondary suites and duplexes, particularly with the dysfunctional land-use zoning not being fixed. Council Survey finding:” Whether Oak Bay should allow secondary suites is a matter of no small controversy”. However, this “balance of public opinion” was not reflected in the was almost unanimous APC vote to recommend legalizing suites.
Oak Bay Watch, has observed the APC’s conduct and considered its misguided recommendations. In light of all the information and submissions residents have provided to Council, it is clear that resident input and collaboration is exactly what is needed at APC meetings.
Time for a Change
Please make your best effort to vote on October 20, 2018. This election will be one of, if not the most important, election in Oak Bay’s history.
*******Please help us continue to provide you with information about Community concerns and Council decisions and actions. Oak Bay Watch members also help community groups with their specific development concerns. Donate to Oak Bay Watch - even $5 or $10 dollars provides expenses for door- to- door handouts and helps us maintain our website. Oak Bay Watch is committed to ensuring the Community gets the full range of information on budget, governance and all key development issues – a well informed opinion cannot be made without this.
(Please use Donate Button at bottom of oakbaywatch.com Home Page)
Keep informed please sign up for our newsletter – bottom of Newsletter Menu Item.
Appendix #1
January 11, 2017 APC Minutes Item 3 Facilitated Workshop
“A member of the Commission made a point of order that, in their view, staff should not participate in this workshop, other than as a resource, in accordance with the Community Charter (Section 5) and the Local Government Act (Part 14, Section 461 (5)). It was the consensus of the Commission that this would be an appropriate process to undertake and accordingly all staff, except the Manager of Planning and the Commission Recording Secretary, relocated from the Commission table to the audience during the facilitated workshop. From this point on, staff provided information only in a resource capacity when asked to do so”.
Appendix #2
One of many of the houses built after the new 'revised' 2014 Zoning Bylaw that the Community expected would result in proportionate development.