By De Clarke<\/p>\n
In the\u00a0Agenda<\/a>\u00a0published on Friday Jan 22, 2021 for the\u00a0SRD meeting<\/a>\u00a0of Weds Jan 27th, 2021 can be found a couple of items of interest to\u00a0Cortes Islanders<\/a>. 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, \u201cDirector Anderson \u2014 Insider Influence.\u201d<\/p>\n Attached to Item M.1 is\u00a0a staff report<\/a>\u00a0dated January 21st and signed by\u00a0David Leitch, CAO<\/a>, with several documentary attachments. The Board is requested to \u201cconsider the process for deciding whether to pursue allegations of insider influence in relation to\u00a0Director Anderson<\/a>\u2018s 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.\u201d<\/p>\n <\/p>\n In order to place this document in context, we will have to review some history rapidly receding in the rear-view mirror.<\/p>\n Ms Anderson narrowly won the Area B election for Regional Director in October 2018<\/a>. Immediately after the election, political opponents made allegations whose apparent intent was to overturn the result of the election \u2014 by disqualifying voters, or by disqualifying Ms Anderson herself from serving a further term.<\/p>\n Disqualification of voters was attempted very shortly after the results were announced, by means of a complaint filed with RCMP alleging \u201cillegal voting\u201d by 43 persons who did not meet residency requirements. RCMP did travel to the island to investigate, but\u00a0found no case of any unqualified voter casting a ballot in October 2018<\/a>.<\/p>\n 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\u00a0dismissed as \u201cwithout merit\u201d in June 2020 by agreement of both counsels<\/a>. While\u00a0Currents<\/em>\u00a0has been informed of a story in circulation that the litigation was \u201csettled\u201d (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.<\/p>\n 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.<\/p>\n 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 \u201clive and let live\u201d \u2014 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\u00a0Kristen Scholfield-Sweet<\/a>\u00a0says, \u201cI cannot think, in my 28 +\/- years on the\u00a0 APC, of an instance where a neighbour filed a complaint against a neighbour in an unprovoked situation.\u201d<\/p>\n However, only a few days after the election results were announced, someone on Cortes Island made a formal complaint against the land where Anderson\u2019s 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).<\/p>\n 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 \u201ccabin\u201d per parcel regardless of acreage.<\/p>\n 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.)<\/p>\n 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.\u00a0Ministry of Transportation and Infrastructure (MoTI)<\/a>\u00a0law intersects with zoning law, requiring a certain type of road access over a prescribed maximum distance to every distinct residential parcel. Anderson\u2019s 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.<\/p>\n 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 \u2014 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.<\/p>\n Conversations with MoTI can be particularly lengthy and often punctuated by replacement of the previous contact person and disconnection from previous agreements. The\u00a0Harbour Authority Cortes Island (HACI)<\/a>\u00a0Board for example, has been frustrated by such inconsistencies:<\/p>\n The HACI contacted the MoTI in July 2016 \u2026 We said we\u2019d help out with clearing the areas\u00a0<\/em>[near the community docks]\u00a0of 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\u2026 if you have agreements with the MoTI, get them in writing and signed.<\/em>\u00a0(HACI Board President, 2021).<\/p>\n Anderson sent an email to staff member John Neill (planner) at SRD on December 17th 2020. She wrote:<\/p>\n I am so sorry that this application isn\u2019t more straightforward.<\/em><\/p>\n 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.\u00a0 That is way [why] we paid our referral fee and asked you to proceed.<\/em><\/p>\n 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\u2026<\/em><\/p>\n So unless you have already completed the referral, it would be wonderful if you could hold off until the new year.<\/em><\/p>\n Earlier (October 28th) Anderson had expressed a concern over the mounting costs of the process:\u00a0We would just like the referral that you look at and take the few [fee] for to be our best version \u2014 and we would like not to pay the referral fee multiple times if the application changes based on information learned as we go.\u00a0 Any advise [sic] very welcomed.<\/em><\/p>\n It seems fairly obvious that Anderson\u2019s concern over costs continues throughout the months-long conversation, and that after MoTI changes its instructions (\u201cinformation learned as we go\u201d) she wishes to defer SRD\u2019s 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.<\/p>\n It is this single phrase, in this single email \u2014\u00a0it would be wonderful if you could hold off until the new year<\/em>\u00a0\u2014 which Mr Leitch\u2019s staff report of January 21st describes as \u201cinsider influence\u201d 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\u00a0Directors Abram<\/a>\u00a0and\u00a0Cornfield<\/a>:<\/p>\n 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.<\/em><\/p>\n [\u201cInsider influence,\u201d the term found found in the Leitch staff report, is not a technical term in BC government law. The correct term is \u201cinside<\/em>\u00a0influence\u201d \u2014 as used by Abram and Cornfield. Readers may wish to review\u00a0the relevant section of the Community Charter<\/a>.]<\/p>\n The language of the Charter is quite specific. A council member may not \u201cuse his or her office to influence in any way\u201d decisions or actions taken \u201cby an officer or employee of the municipality\u201d if that member has a \u201cdirect or indirect pecuniary interest\u201d 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.<\/p>\n If we follow SRD\u2019s 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 \u2014 so according to SRD\u2019s 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.<\/p>\n There is the further question of\u00a0use his or her office<\/em>. The email trail attached to Leitch\u2019s 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 \u201cusing her office\u201d is unclear; SRD Board members have no input into staff reviews, hiring, firing, advancement or any other leverage that might be \u201cused\u201d to influence decisions.<\/p>\n 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\u00a0David Leitch<\/a>\u00a0(himself no stranger to\u00a0conflict with a Regional District Board<\/a>). The CAO is also empowered to select and hire legal counsel, consult with counsel as the Board\u2019s representative, and to present and interpret counsel\u2019s 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.<\/p>\n Is a question of process\u00a0timing<\/em>, in order to avoid paying duplicate fees and wasting staff time, the same thing as trying to influence a\u00a0decision<\/em>\u00a0or outcome? Should Anderson\u2019s email be construed as \u201cusing her office\u201d for \u201cinside influence\u201d?<\/p>\nAftermath of the Regional District Elections in 2018<\/h4>\n
Zoning Complaint<\/h4>\n
Subdivision Not A Simple Solution<\/h4>\n
\u201cInsider Influence\u201d?<\/h4>\n
(Ab)Use of Office?<\/h4>\n
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