SRD contemplates further litigation against Noba Anderson

SRD contemplates further litigation against Noba Anderson
Photo credit: “Spooky Maze” from image by suzi977,]
Roy Hales - CKTZ - Cortes IslandBC | 26-01-2021
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By De Clarke

In the Agenda published on Friday Jan 22, 2021 for the SRD meeting of Weds Jan 27th, 2021 can be found a couple of items of interest to Cortes Islanders. For item N.1 (Cortes Island Assent Voting Bylaws), all sub-items have been postponed indefinitely. But more dramatic developments are found in section M (Staff Reports) item 1, “Director Anderson — Insider Influence.”

Attached to Item M.1 is a staff report dated January 21st and signed by David Leitch, CAO, with several documentary attachments. The Board is requested to “consider the process for deciding whether to pursue allegations of insider influence in relation to Director Anderson‘s December 17, 2020 communication with a staff member as it pertains to a proposed subdivision of land co-owned by her and located on Cortes Island.”

In order to place this document in context, we will have to review some history rapidly receding in the rear-view mirror.

Aftermath of the Regional District Elections in 2018

Ms Anderson narrowly won the Area B election for Regional Director in October 2018. Immediately after the election, political opponents made allegations whose apparent intent was to overturn the result of the election — by disqualifying voters, or by disqualifying Ms Anderson herself from serving a further term.

Disqualification of voters was attempted very shortly after the results were announced, by means of a complaint filed with RCMP alleging “illegal voting” by 43 persons who did not meet residency requirements. RCMP did travel to the island to investigate, but found no case of any unqualified voter casting a ballot in October 2018.

Disqualification of Anderson as a Regional Director was attempted by means of a petition filed with the BC Supreme Court by 13 residents of Cortes Island. This petition, which showed signs of hasty composition and little or no fact-checking, was dismissed as “without merit” in June 2020 by agreement of both counsels. While Currents has been informed of a story in circulation that the litigation was “settled” (i.e. Anderson paid or otherwise persuaded the plaintiffs to abandon their case), there seems to be as little substance to this story as the court found in the original allegations.

Zoning Complaint

Unknown to most Cortes Islanders at the time was a third incident affecting the newly re-elected Director. Only a few days after the election, a complaint was filed with SRD regarding zoning violations on the land on Whaletown Road where Anderson lives, which she co-owns with five other land partners.

Zoning complaints are rare on Cortes Island, if we discount the occasional skirmishes over shellfish leases and their use of mechanical equipment. A land-based zoning complaint is very unusual; Cortes Island has a long tradition of “live and let live” — which is one reason why people come here. This is not the kind of suburban community where neighbours eagerly keep watch over their fences for the slightest infraction. Local resident Kristen Scholfield-Sweet says, “I cannot think, in my 28 +/- years on the  APC, of an instance where a neighbour filed a complaint against a neighbour in an unprovoked situation.”

However, only a few days after the election results were announced, someone on Cortes Island made a formal complaint against the land where Anderson’s family resides along with the families of her land partners. Anderson co-owns the 22-acre (8.9 hectare) property with partners Lovena and Ryan Harvey, Lukasz (aka Luka) Biela and Allison Gregory (aka Ashe Biela), and Connie Quayle (formerly known as Conrad Dombrowski).

Most of Cortes Island zoning is aimed at maintaining low density and preserving the rural lifestyle. Owners are permitted one house per 2.5 acres, to a maximum of three houses and one size-limited “cabin” per parcel regardless of acreage.

Anderson and her land partners do not contest the compliance issue regarding number of houses; they do not deny having four inhabitable houses on the property (none of which is visible from the public road). If the property were divided in half, the owners would collectively be permitted six houses and two cabins on the same acreage; but because the property is one parcel, the per-parcel maximum applies. (The R1 zoning of the property permits subdivision down to 2-2.5 acre lots, which would in theory allow for nine or ten houses.)

Subdivision Not A Simple Solution

Subdivision could therefore quickly solve the dwelling limit violation, but (as with many Cortes properties) the property would then not meet the minimum road frontage requirements, relief from which can only be granted by the Regional District Board. Ministry of Transportation and Infrastructure (MoTI) law intersects with zoning law, requiring a certain type of road access over a prescribed maximum distance to every distinct residential parcel. Anderson’s shared property is mostly second-growth forest south of Whaletown Road; it is bluffy land with only a tiny frontage on the main road, so subdivision presents special problems.

As many island property owners have learned, trying to navigate the various levels of bureaucracy involved in road rights of way, easements, and subdivision in general is a complex and lengthy undertaking — especially since the pandemic. After receiving notice from SRD in early 2019 that the zoning violation complaint had been filed, Anderson and her co-owners began to work on the problem.

Conversations with MoTI can be particularly lengthy and often punctuated by replacement of the previous contact person and disconnection from previous agreements. The Harbour Authority Cortes Island (HACI) Board for example, has been frustrated by such inconsistencies:

The HACI contacted the MoTI in July 2016 … We said we’d help out with clearing the areas [near the community docks] of dangerous trees and vehicles if MoTI graded the areas, put down some road crush and let HACI use the areas as parking. HACI did as we promised at our expense and entered into a formal lease of these areas. Fast forward to 2020 and three different Program Officers, and the new Program officer denies there was an agreement for them to do any work at the Squirrel Cove dock. All we have are emails but no recordings of telephone conversations… if you have agreements with the MoTI, get them in writing and signed. (HACI Board President, 2021).

Anderson sent an email to staff member John Neill (planner) at SRD on December 17th 2020. She wrote:

I am so sorry that this application isn’t more straightforward.

We have been unable to get any direct information out of MOTI on what they would accept as far as roads go for our application, and it seemed the only way to get that was through a site visit, which they would not do until all the referrals were in.  That is way [why] we paid our referral fee and asked you to proceed.

I just got a call from MOTI today saying that they are now willing to have a call with us and our development consultant in January to really go over options. They are not willing to proceed as submitted…

So unless you have already completed the referral, it would be wonderful if you could hold off until the new year.

Earlier (October 28th) Anderson had expressed a concern over the mounting costs of the process: We would just like the referral that you look at and take the few [fee] for to be our best version — and we would like not to pay the referral fee multiple times if the application changes based on information learned as we go.  Any advise [sic] very welcomed.

It seems fairly obvious that Anderson’s concern over costs continues throughout the months-long conversation, and that after MoTI changes its instructions (“information learned as we go”) she wishes to defer SRD’s processing of the MoTI referral until a clarifying conversation with MoTI can happen and the application can be modified accordingly. Otherwise, the land group will have to modify and resubmit after their imminent conversation with MoTI, paying a duplicate referral fee. Most property owners would probably make the same request under similar circumstances.

“Insider Influence”?

It is this single phrase, in this single email — it would be wonderful if you could hold off until the new year — which Mr Leitch’s staff report of January 21st describes as “insider influence” and grounds for disqualification from holding office. But staff reports do not come out of thin air. The staff report was written in response to a motion recorded in the Minutes of the January 13th SRD meeting, a motion originated by Directors Abram and Cornfield:

THAT Director Anderson be advised that on January 27, 2021 the Board will be considering a motion to authorize an application to the Supreme Court that she be disqualified from holding office on the basis that she has violated the relevant provisions of the Community Charter and Local Government Act regarding inside influence and that she has the right to present a defense at that time through her legal counsel.

[“Insider influence,” the term found found in the Leitch staff report, is not a technical term in BC government law. The correct term is “inside influence” — as used by Abram and Cornfield. Readers may wish to review the relevant section of the Community Charter.]

The language of the Charter is quite specific. A council member may not “use his or her office to influence in any way” decisions or actions taken “by an officer or employee of the municipality” if that member has a “direct or indirect pecuniary interest” in that decision or action. If interpreted as narrowly as possible, it suggests that any property owner who holds public office is prohibited from discussing, contesting, or negotiating with local government agents during any process of assessment, permitting or zoning involving their property.

If we follow SRD’s logic as reflected in the motion and staff report: if Anderson were sole owner of her property, she would have no land partners to whom she could delegate the job of corresponding with SRD planners — so according to SRD’s advice, she would in that case be prohibited from corresponding with them at all. This seems an unusually narrow interpretation, and one likely to discourage most property owners from ever running for public office.

(Ab)Use of Office?

There is the further question of use his or her office. The email trail attached to Leitch’s staff report clearly shows that Anderson used her private email address whenever she communicated with SRD staff about the application for subdivision. How this constitutes “using her office” is unclear; SRD Board members have no input into staff reviews, hiring, firing, advancement or any other leverage that might be “used” to influence decisions.

In fact, in their role as Directors, SRD Board members are generally discouraged from communicating directly with Staff; traditionally, information flows from Staff to Board and vice versa through one single conduit: the CAO, currently David Leitch (himself no stranger to conflict with a Regional District Board). The CAO is also empowered to select and hire legal counsel, consult with counsel as the Board’s representative, and to present and interpret counsel’s advice to the Board. A CAO is a quasi-permanent presence with significant influence and power over SRD staff; Board members, who come and go with the election cycle, have little to none.

Is a question of process timing, in order to avoid paying duplicate fees and wasting staff time, the same thing as trying to influence a decision or outcome? Should Anderson’s email be construed as “using her office” for “inside influence”?

Whether the email in question indeed constitutes the type of “influence” that the Community Charter was written to prevent, will presumably be discussed on January 27th — with Anderson’s legal counsel (tele)present. Since SRD meetings are now — at long last — being recorded and archived, concerned Cortes residents may be able to view or at least hear the proceedings.

Does this allegation (and threat of further litigation) reflect legitimate concern over an attempt to coerce or corrupt SRD staff? Or is this just one in a persistent series of attempts to overturn the election result of 2018 and remove Anderson from office by other means?

Perhaps coincidentally, on January 22 2021 — just one day after the above-linked SRD agenda was published — the land group was served with formal notice of a filed petition to litigate against them; the litigation was launched by SRD, and contends that they have not moved swiftly enough to resolve their zoning violation. Among various threatened consequences is the suggestion that they may be compelled to demolish one of their homes.

Cortes Currents will continue to monitor and report the story as it develops.