There is much about the evening that I could address here, of course, but time is tight as I have my first meeting with the Victoria Family Court & Youth Justice Committee to prepare for later today. Instead I'm cutting-and-pasting the comments and the printed-out portion of the research notes I prepared for the latest chapter in the ongoing saga of non-conforming businesses in the Gateway Residential area. I spent hours replaying and transcribing the three-hour Oct. 1 public hearing that led to the OCP amendment and a subsequent set of related decisions. As it turned out, we again voted 5 to 2 in favour of moving forward as we gave third reading to the zoning amendment that will allow said businesses to apply for Temporary Use Permits.
I was intending to read some of the wise comments from Oct. 1 back into the record along with my own pre-prepared thoughts. In the heat of the moment, however, I opted to wing it and rambled rather ineffectively, I feel in hindsight. Rather than just let these notes go fallow, here they are in full for whoever might be interested. As Derek Lewers pointed out, municipal insurance will cover any potential court costs, so my fears about the loss of big bucks are not entirely warranted. (Though as municipal expert Tracey Lorensen said during the CRD councillor orientation sessions, "the law is a crude way to resolve issues.") And if you're familiar with the myth about the 'sword of Damocles,' you'll realize it wasn't apt in the context I use here or when I referenced it on Monday night. The point I intended to make: Dropping the axe on a particular non-conforming business is unfair given all the inconsistencies and imponderables at play, especially when a process has been identified by the District's lawyers and professional staff that will ideally lead to an as fair-as-it-can-be resolution.
COMMENTS/NOTES for PUBLIC HEARING, Jan. 14, 2019
TOP CONCERN -- Good governance + keep the District out of court on this matter ... to do that we are seeking the fairest, best possible solution ~ one that accepts that we as a District have had, and continue to experience, what the Mayor has described as growing pains ... ones much like those experienced by every community no matter how small or big. Now we're dancing as fast, intelligently and fairly as we can in trying to broker a solution. That's commendable and the right thing to do given the history and complexities.
Yes, Sooke's non-conforming businesses ~ however few or many there are, and no matter where they're located in the District ~ should have been read the riot act long ago .... cease-and-desist notices should have been both issued and enforced. They would have been and will in future if Sooke switches away from a complaint-driven system and allows its bylaw officers to act as required when they spot offences ~ as Councillor Reay said at the Oct. 1st hearing: "I think it is time that the District move into a new phase of being proactive in ensuring there is compliance with zoning rather than reactive. Waiting on complaints will the bane of future councils. This will not stop."
The fact is our bylaws haven't been enforced evenly ... or entirely ... or even (who knows) partially. ... and that perhaps reflects the attitude of the people who lobbied hard for incorporation back in 1999 .... the 1400 or so who voted in favour of our exit from the CRD ... those with a libertarian, don't tread-on-us attitude towards government oversight ~ who were quite happy to be operating in gray zones and wanted to carry on doing so.
I spent a fair bit of time transcribing the videotape from the Oct. 1 public hearing ... more than three dozen people spoke that night, for and against and straddling the middle ground. It's pretty amazing document of a community that is split in a number of ways ... and it led to a tight 4 vs. 3 vote that has brought us to tonight.
Here's a telling quote from Councillor Kevin Pearson: "We're a rural community that has transitioned into an urban community. That transition brings with it a lot of historic wrongs. Deals were made -- wink/nod/go ahead and do these things -- and it continued on through our history. It's time we need to start growing up, applying the rules and regulations, and acknowledging what our history has been."
Wielding the sword of Damocles at this point may seem just and right in 2019 ~ and the Lewers family, other business owners who've played by the rules and various speakers on Oct. 1 have certainly given us a long list of reasons, rationales and valid arguments to do so ~ yet there are also the matters raised by Ms. Faulkner, Mr. Drivers and those who supported his business at the previous public hearing ... Laurel Faulker-Killham: "This is the case of a landowner who has been doing something for a very long time with what appears to the approval, blessing, knowledge of the local government."
Following the letter of the law and enforcing it in 2019 after letting things slide for nearly two decades is not the answer here, and this is in the opinion of the District's professional staff, its lawyers, the Mayor, the three other councillors who voted for this current process on Oct. 1 and the five of us who have been voting to continue down this road in recent months.
Whatever happens, as Councillor Kasper said back on Oct. 1, we're likely not going to walk away without paying a fortune in legal bills. We have better things to spend our limited public monies on ... as we'll hear tonight, there's the matter of a new $800k fire truck + $150k for washrooms and water fountains at John Phillips and Whiffin Spit + of course, a huge want list of sidewalks, street lights, an east-west connector road, sewer system improvement and expansion + all the other wishes identified in strategic plans and our latest Five Year Plan.
I believe that the recommendations from District staff and the District's lawyers is that best way forward.
2010 OCP (pg. 76) section 5.2 Gateway Residential
Under Policies ... item g) "Permit, by temporary use permit, the continuation of historic non-conforming, non-residential uses that are outside the scope of home-based business regulations."
Under Action Items item 5.2.4, item d) "Review the need for a highway commercial-type land use designation in the area adjacent to Highway 14 to accommodate historic non-residential land usesand appropriate new non-residential uses."
That latter action item hasn't happened yet but it will during the OCP review this year ...
We, the people, get to determine what "commercial highway-type" zoning might look like in Saseenos, by which I mean specifically from Cooper's Cove to Ayum Creek.
C1 - Neighbourhood Commercial-- artisan industries, micro-breweries, bakery, restaurant.
C2 - General Commercial-- which includes auto service, amusement facility, bank, funeral home, hotel/motel
C3 - Service Commercial-- body & paint shops, machine shops, vehicle repair ...
Or some fresh Gateway-specific, Cooper's Cove to Ayum Creek-only zoning that will arise from the process? That's for the open houses and focus groups to determine in the months ahead.
I'd like to take us forward 18 months or so into the future ...
1. Non-conforming businesses ~ at least one of them, at any rate ~ have continued operating in the interim with Temporary Use Permits whose strict-parent conditions re: noise, operating hours, etc. etc. are enforced and regulated.
2. OCP review has taken place and our vision for the community as a whole and its neighbourhood parts has been refreshed.
3. Vision for Saseenos and its commercial node has been analyzed and extended into the future
4. One idea I'm fond of ~ If and when Sooke Road is straightened as per one of the suggestions in the Ministry of Transportation's Hwy #14 report last year and the constant thrum of traffic has been diverted, and even if not ... involves the Coopers Cove to Ayum Creek zone evolving into a prime south island daytrip location-- 40 minutes from the Inner Harbour, a nice downhill glide from the Galloping Goose.
Cooperative marketing efforts by Saseenos businesses, which I understand did take place once upon a not-that-distant time ago, are drawing visitors to a whole range of activities: Kayaking tours departing from Cooper's Cove ... outdoor adventure education workshops ... an overnight stay at one of the local oceanfront lodges or a revitalized Sunny Shores ... time well spent in a brewery tasting room ... shopping at a farmgate with a petting zoo and tea garden ... a walk along Ayum Creek out to Goodrich Penninsula, which one day could be home to who knows what -- perhaps, as some have suggested, the headquarters for some kind of outdoor adventure operation -- perhaps a national headquarters for Surf Canada with an artificial wave machine as one local wise guy has suggested ... or, as former fire chief Steve Sorenson has dreamed, a Great Wolf Lodge family waterpark. One of the latter is planned for someplace on the west coast -- Powell River and Surrey were potential locations, but both have fallen through. Why not Sooke?
Daytrippers might also have the opportunity to visit a hot-rod museum and check out vintage cars in a one-of-a-kind used car lot dedicated to vehicles that pre-date the Beatles. We are a town that's proud of its vintage cars, and this along with the car show on the Flats each summer fits our history and identity.
Possibly, perhaps quite likely, C3 welding activities would not pass muster during the OCP review and the new commercial highway zoning would exclude it. If that's the case, then this one particular non-conforming business will need to relocate to other industrial lands in the Sooke/Langford region.
Keeping the process alive as we move forward with the OCP review will allow businesses to continue to operate and, most significantly, will keep us out of court. Rick Kasper on Oct. 1: " I do not want to see this community go through a long protracted court case that could cost thousands and thousands of dollars. It's not an issue I would want any council to wrestle with. The legal steps that would have to be taken to stop this operation are lengthy, time-consuming and expensive. Is that in the public interest in the long run? I don't think so."
The way forward ...
1. Non-conforming businesses apply for TUP
2.District to receive TUP applications. First & second readings + public hearing.
3. Strict, enforceable conditions re: operating hours, riparian measures, noise abatement, buffer zone, lighting of the site, etc.
4. TUP for a one-year period (?) that can be pulled if non-compliant.
5. Full proviso that the OCP review is going ahead and that the TUP may well NOT be renewed should the community determine that a particular use is not wanted in this area.
Random notes ...
TUP for a three-year term with option of a one-year renewal ... clarify ?? (one year?)
Ivy Campbell ~ if this amendment is approved and a TUP will come soon thereafter after a minor zoning amendment, there is still a chance through the OCP amendment that this is not the appropriate place for heavier commercial or industrial, then it would have to be reassessed.
Taxes: Classification is determined by BC Assessment.
Assessed at $621k as of July 1, 2018
Shell across the street (5529 Sooke Rd. ~ $958k)
Lewers (5526 Sooke Rd. ~ $382,300 ... farmland)
Driver now assessed at a split rate -- 50 percent commercial, 50 percent residential.
2014 forward has been paid at this split rate.
All years previous have been paid at agricultural rate.
Brent Blackhall: "BC Assessment uses a highest and best use of the land.
They've determined that this is a commercial vs. an industrial use.
They may not be aware of this current TUP if it were to be granted.
They do desk audits all the time.
They are aware of the hot button properties around here.
If it didn't have commercial classification, we'd be concerned about that.
It is up to BC Assessment. Change the proportion of it. Or consider it to be industrial."
Laurel Faulker-Killham: "In my review so far of information, the evidence discloses that from the start that these uses were considered to be within what is permitted, and over time there has been a thinking shift. In cases where there is ambiguity ... courts will generally protect the land owner.
Kasper: 10-year span between 2007 and 2017 ... No record of any activities or action taken by the DOS against this property.
Kilham: Driver interfaced with the District, inquired at various times, and had the status of his 'lawful non-conforming' status confirmed, and continued to do business with the District
Lewers: pollution, odor, noise, light, traffic, viewscapes, parking or loading. Empathy. What a nightmare.
CRD Zoning Bylaw #2040 was applicable when Mr. Driver took over
lot size = .86 hectare (less than one) THEREFORE the CRD Home Business definitions did not apply (must be one hectare or more) to this property
Oct. 1 comments from Langford's Mike Wignell: "Mr. Driver has started a business and has now grown beyond its original location. We have had situations like this in Langford ... and when they get successful, they have to move.
Set up a process where Mr. Driver can continue to operate where he is, but on a defined time frame ... longer-term he will be moving to a new location. A consultative process, as long as Mr. Driver recognizes that long term it won't work there ... get what guarantees you need and support him/encourage him to move to a better location in Sooke that is more industrialized."
Maja Tait: "Part of the growth -- it's painful. We are a young municipality and we're hitting pain along the way. How do we grow and evolve? We are not the only community faced with this -- everyone struggles with this at one point in time. It is not a problem unique to Sooke. We are looking for fairness right across the board."I would support a text amendment to the OCP for a Temporary Use Permit. It is fair to a business that needs to have a transition period. The terms and conditions of that transition period must be clearly stated."
Bev Berger: "As stated by our head planner and respecting the legal advice staff have received, I support the staff recommendation to afford all the residents in the OCP as designated as Gateway Residential the opportunity to apply for a permit."
Rick Kasper: "I want to see this community move on and ensure that the activities that do occur are on a temporary basis until future deliberations occur regarding the community plan ... stringent conditions attached to whatever those uses shall be.
Tait:"The OCP does need to be re-done. We see where it falls out of sync with a dynamic, growing community like Sooke and it provides that opportunity for the community to weigh in and see how these uses find their home in our community"