The Common Sense Coulter Berry Written Decision is in…. The facts behind a bad, illegal and costly Municipal Council decision! The Rest of the Story…….

Posted: December 16, 2013 in Uncategorized

The agents of misinformation on Coulter Berry in the Township of Langley are still at it – Not letting the inconvenient facts get in the way of a good story! The smoke and mirrors support being put forward and offered up by the friends of the Township of Langley Establishment, Eric Woodward and Coulter Berry in Fort Langley has a familiar ring to them. Connecting many of those dots is an interesting exercise, once again in searching for answers behind how this was possible smacks of what is in it for me? The self-serving continues……

Well one thing we have to admit, it is consistent with the politics in the Township of Langley!

You know it never ceases to amaze me how some individuals (so many of them identified supporters of the TOL Establishment and this Mayor and his majority slate on Council) can rationalize the irresponsible, and in the case of Coulter Berry, illegal actions of this Council. Is it blind loyalty or? Don’t you have to ask WHY? Who’s interest are they looking after?

A saying I have used many times to get a point across –

“I believe in a dictatorship as long as I am the dictator”!

My point is that in elected office or in an official staff position you do not have the right or authority to manufacture an illegal process for the benefit of anyone regardless of circumstances. You are not a dictator! You have a fiduciary responsibility to the taxpayers of your community to be fiscally prudent and abide by the rule of law. So let’s look at the illogical conclusion of the kind of thinking that caused this problem; if what has gone on with the Coulter Berry building is OK with you then one would have to believe you believe that legislation, laws and by-laws are OK as long as you agree with them otherwise to hell with them and any need for you to be compliant! In my experience this kind of thinking is and has been deep seeded and pervasive in the Township of Langley for far too long. There has been and continues to be a deliberate effort to be creative in the interpretation of bylaws and provincial legislation. Once again the local media is an abject failure in its investigation and non-reporting of same!

So before we look at many of the irrational comments made by a few supporters, lets look at the key points outlined in the long awaited written legal decision by The Honourable Mr. Justice Groves. Here are the pertinent parts of the decision: (I am only providing points that are particularly key to the decision. I have also underlined key points. (The full written decision is available on-line at www.courts.gov.bc.ca.)

(Page 2)

(10) The Local Government Act (LGA) in part 27, Division 5, deals with Heritage Alteration Permits. Section 972 of the LGA is germane to my analysis in these Reasons. It reads as follows:

Division 5 – Heritage Alteration Permits

Heritage Alteration Permits (HAP)

972        (2) The heritage alteration permit may, in relation to heritage property or property within a heritage conservation area, vary or supplement provisions of one or more of the following. (It goes on and lists 4 items a thru d.)

972        (4) The following restrictions apply to subsection (2):

                             (a) the use of density of use may not be varied

(14) It is not disputed by Langley, generally speaking, that in order for this proposed development to proceed, the zoning provisions in effect in this Heritage Conservation area would have to be amended, specify the Zoning bylaw in the heritage designated area of Fort Langley requires building to be no more than two stories high. The height restrictions are found in section 602.6 of the Community Commercial Zone (C-2) bylaw.

(18) The petitioners argued first that Langley at the meeting in which they considered the HAP did not specifically amend the zoning bylaws. I find that they purported to do so at the meeting. I would not accede to the petitioner’s grounds for setting aside the HAP on that basis.

(19) However the petitioner further argued, and I agreed, that Langley, when they approved this HAP breached s. 972 (4)(a) of the LGA.

(20) The LGA allows under s. 972(2)(b), through the HAP process, amendments to zoning bylaws. However, s. 972(4)(a) places a restriction on what a council can do under a HAP. This section prohibits council from varying the use or density of use of the lands subject to the HAP.

(21) The LGA does not define the term density of use.

(22) I find that Langley actions, in allowing a building to have, for lack of a better term, a footprint in excess of 60% maximum noted in the zoning bylaw and allowing a building to be in excess of the two stories allowed in the Zoning bylaw, in this case, a three-storey building, had the effect of changing the density of use of the subject lands.

(23) The concise Oxford Dictionary has an applicable definition of density as follows: “the quantity of people or things in a given space”.

(24) The use of the term density of use in the LGA, must be considered in the context of what this HAP purported to do in regards to the lands in question.

(25) Under the applicable zoning, the footprint on the properties in question must at maximum be 60% of the area of the land. Additionally, the building must not be more than two stories high. So the question in it’s simplest terms is therefore, has Langley changed the density of use of this parcel of land by allowing a footprint in excess of 67% of the area of the land and by allowing a building to three stories high rather than two. Common sense, and any reasonable interpretation of density of use suggest that they have. They are allowing a building that is approximately 50% higher than the current zoning allowed and they are allowing an increase, although a modest increase, in the footprint of the building on the lands in question.

(26) Council’s actions, I find as fact, have increased the density of use of the lands in question, an action which is expressly prohibited, or beyond their power under s. 972 of the LGA. As such, the HAP must be set aside.   

RE Coulter Berry – Comments made in letters to the editor –

Langley Advance Tuesday Dec. 3rd 2013 –

  • “The unfortunate result of the heritage hole in the ground was achieved by six people with private interests fortunate to get a judge who found a process technicality”.  “There was no public hearing about whether to launch a court challenge. There was no public hearing in the court proceedings”.

RESPONSE –

The accusation of private interest – no doubt you mean fear of competition? Do yourself a favor and don’t insult your own intelligence. A two story building will provide plenty of room for legitimate competition so that is a specious and irresponsible argument.

  • “Found a Process Technicality” –

RESPONSE – A process technicality is NOT TRUE, it is illegal! Please review the written decision.

  • “No Public Hearings to decide Court Challenge?”

RESPONSE –

You have to be kidding, right? – As a citizen you/we have the right to due process and to challenge undue or improper process by government in the courts. Governments are not exempt from court action. I can only wish and hope there were more people willing to fight for the rights of the general population against many of the actions of this municipal council.

  • “No Public Hearings in Court Session?”

RESPONSE –

Unfortunately that is not part of our judicial process. The Township of Langley, thanks to all of its residents paid a handsome fee for its legal representation against this challenge whether we agree with the challenge or not. You should have attended the two day Court session; you would have a better appreciation of the Township of Langley’s inadequate defense (my opinion) of their irresponsible actions.

Langley Advance Tuesday Dec. 3rd, 2013 –

  • “Get on with the Project” –

RESPONSE – An illegal act? Please review the written decision.

Other complaints – The hyperbole continues with the orchestrated letter writing and attack campaign by the friends of Eric Woodward moving into high gear unabated. They include statements like – “Self-appointed bullies”, “This group pretending to speak for the entire community…”, “I didn’t vote for them…”, “The Supreme Court Judge from Prince George…”, sympathy for the developer and what he has been through and more and more and more!

And the best of all (although it was hard to choose) “Coulter Berry was approved by an elected Council”! This may come as a shock to those in favor of this building however a Council majority does not have the power to approve a project at will. They MUST adhere to all pertaining Provincial Legislation, the Community Charter, and the Local Government Act as well as their own by-laws and procedures which they can change BUT only according to due process. I will say that sitting in that court room listening to the argument put forward by the Township Legal Counsel the argument that they can almost do as they please sounds eerily familiar. The judge obviously didn’t agree.

Let’s be clear, the argument against this building from the outset is that the Township of Langley erred in the legal processing of this development. This Mayor, Council and staff had every opportunity over a considerable period of time to correct the process however they repeatedly ignored the representations made to them.

In a letter to the editor (Langley Advance Nov. 20th, 2013) “Holistic Coulter Berry investor crushed in Fort Langley” from Mr. John Allan states the petition was a “misuse of the legal system”. Well there are a few points Mr. Allan should be aware of before he makes such a statement. A review of the petitioner’s affidavit #2 shows that Roy Stewart QC advised the TOL and the developer in January of 2013 that a challenge was inevitable. Again in May 2013 both were advised again and it wasn’t until July 5th 2013 the petition was entered. All three of these written legal warnings were issued long before the developer dug the infamous Heritage Hole as it has become known. Mayor, Council and Eric Woodward gambled and lost, it is as simple as that. Sympathy in this case for the developer is not warranted!

The professionals in the planning department rejected the plan, The Langley Heritage Commission and the Heritage Advisory Board rejected the plan, The Langley Heritage Society and B.C. Heritage opposed the plan and a petition of 940 names and the vast majority of speakers were also opposed to the plan. So here we sit with a plan that was foisted on residents of the Township of Langley by members of Council who ignored professional advice, community advice and taxpayer input in favor of an individual who has requested or has been provided with special favors. WHY?

In a well written letter to the editor (Langley Times Tuesday Dec. 10th, 2013) it states – “Mayor Froese said he doesn’t remember any controversy or protest”? WHAT?

NEWS FLASH TO MAYOR FROESE – Please keep up, read this BLOG and OH by the way, read your correspondence and meeting minutes pertaining to this issue going back about 2 years! Remember Pete McMartin’s column (Vancouver Sun) quoting Mayor Froese as not making decisions based on petitions and public hearing presentations related to this project?

Have you ever asked yourself why Mayor Jack Froese, Council members – Charlie Fox, Michelle Sparrow, Kim Richter, Grant Ward, Bev Dornan, Bob Long, Steve Ferguson, ALL except David Davis were tripping over themselves to manufacture and implement what has proven to be an illegal process? Is it just coincidence that former Mayor Kurt Alberts (consultant to Coulter Berry), former Councilors Jordan Bateman, Howie Vickberg and MLA Rich Coleman are on record as supporting this building? An illegal process?

Have you ever asked yourself why staff was against this plan for Coulter Berry from the outset? Could it be that they deemed it an illegal process? Just asking!

Response to the BC Supreme Court decision:

The response to this written court decision by Eric Woodward, the proponent of this development as outlined in his message on the “We support Coulter Berry” Facebook site leaves one in shock. I sat through 1 ½ of the 2 day hearing and I have to tell you we must have attended two different hearings. His is but a narrow self-interest and wishful thinking interpretation of the facts. They were wrong and they know they were wrong! They got caught.

Misty van Popta on the same “We Support Coulter Berry” Facebook site stated “So essentially there is nothing wrong with Coulter berry. Nothing illegal, nothing sinister done by Council in approving it. Its just a matter of incorrect paperwork. OH my goodness.” If this wasn’t so outrageous it would be laughable. All of this comes from an individual who was backed by Joel Schacter and Coleman (per Schacter’s email) for Council in the last election? Obviously she is not letting the inconvenient facts get in the way of a good story. Van Popta for Council, with this kind of thinking, how devastating would that be?

A Common Sense solution –

You don’t have to be a rocket scientist to suggest that this Mayor and Council need to go back to the drawing board and come back with a plan that meets the by-laws that are and have been successfully in place for years.

OR

They come back with the appropriate by-laws that would rescind all Heritage guidelines and stand by the project that has just been rejected by the courts for reasons of wrong process. I would strongly suggest any move in that direction will cause an uproar in this community from one end to the other that will make anything to-date look like a church picnic!

A Message to Council and Staff – Any attempt to Spot Zone would be met with vehement opposition. Any zoning amendments considered would need to be consistent with the Langley OCP, Fort Langley OCP and the Fort Langley Building and Façade Guidelines. This is confirmed under Part 26, section 884 (2)(b) of the local government act.

Over to you Good Luck. It is a very costly hole you dug for yourselves and more importantly us taxpayers! Thanks a bunch!!!!

RG

I am working on a few posts at present that I believe are of significant concern to Township of Langley Residents, come back often for news of interest to Township residents.

Protect your Democratic Rights – Protect your NEIGHBORS Democratic Rights – stay informed, stay involved and VOTE!!!

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Comments
  1. gadfly says:

    It stands to reason that …

    IF other “development projects” in the ToL had been scrutinized (by the Court) like this one, starting about 15 years ago, Langley would have been a better place.

    The problem is that they were not.

    • You are correct, unfortunately something that has been missed by most is our friend Gordon Campbell who gutted the previous Municipal Act and introduced the Community Charter in 2003. Essentially they did away with the previous oversight that was available through the old Ministry of Municipal Affairs to handle complaints and left it up to those complaining to file a lawsuit. The rest as they say is history. What happened with Coulter Berry would not have seen a court room and would have been home scott free had we not had a few individuals who were willing to spend a considerable sum of their personal money to try to stop an injustice. The Athenry Project is but one of many that I truly believe could have been stopped! RG

    • BNMatnewlands says:

      There is a rather simple and permanent solution to this entire problem … do like we in Langley City did years ago, and secede from the Township of Langley. Obviously they aren’t paying attention to the citizens of Fort Langley anyway, and appear instead fully prepared to break laws benefitting the developers. You could build your City Hall on the pit that is being threatened to remain open unless you bend to the will of the current developer. Done.

  2. Neil M Ziola says:

    Mr. Rick,
    May I assume with the common sense successful appeal by the township on the Coulter Berry project will we soon see your apoligy to the Mayor, council and staff?
    Regards, Neil

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