Thursday, January 22, 2015

Enforcing Our Bylaws

I'm going to let you in on a little secret.  It's something I've come to realize over the past six years. 

You can get away with ignoring a lot of Bylaws in North Cowichan.  And people do it, routinely, every single day.

Let me say clearly, off the top, that I'm not advocating the idea that people should be thumbing their noses at our rules.  An orderly society is built on respect for commonly-agreed-to rules and laws, and I don't want to minimize that in any way.  But it's no secret that we only have one Bylaw Enforcement Officer, and that he's actually only supposed to spend 60% of his working day tracking down and prosecuting Bylaw violations.  (The other 40% of his time is taken up with a role officially known as the "Local Assistant Fire Commissioner" - what used to be known as the "Fire Marshall".)   But that means that technically speaking, the enforcement of the 50+ Bylaws we have on the books is covered by what amounts to a 0.6 FTE (Full-Time Equivalent) position. 

Our Bylaw Enforcement Officer is good at what he does - he's ex-RCMP.  But honestly, I wouldn't want his job.  He's the guy who has to tell landlords - often people who've built an illegal basement suite so they can pay their mortgage - that they have to forgo the extra income from that suite.  And that they have to evict their tenants - who are often low-income folks, just thankful that they've found an affordable place to lay their heads.  He's responsible for making sure that handicapped parking zones are adhered to, and that smokers don't light up in public parks, playgrounds, or places where kids might be expected to gather.  He's the main go-to guy for complaints about illegal burning, fireworks violations, and the illegal discharge of firearms in rural areas.  And he also has the sometimes unpleasant task of telling property owners that their neighbours have complained about the mess that's accumulated in their front yards.  You're starting to get the idea.

So how does one person - someone who is actually only mandated to spend a little over half his working day on this particular role, get it all done? 

Well, here's the secret.  People get away with ignoring many of our Bylaws because enforcement is done on a "complaint-driven basis."  Which means, for example, that if your neighbour is renting out a basement suite in violation of the Zoning Bylaw in your particular neighbourhood, North Cowichan won't actually do anything about it unless you file a complaint.  To be sure, this makes sense from a practical perspective, because there's really no way for us to know about that suite unless somebody calls us. 

The same thing applies, to a slightly lesser degree, to our "Unsightly Premises Bylaw."  Just like with the illegal suites, our Bylaw Enforcement Officer generally won't know that someone is parking derelict or unregistered vehicles in their front yard, or disposing of construction waste on a piece of private property out in the bush, unless someone draws his attention to these issues.  (I say this applies "to a slightly lesser degree" because the violation is ostensibly out there for the whole world to see, and the Bylaw Enforcement Officer or someone else from the Municipality might happen upon a situation that would trigger an investigation without a formal complaint.  That does occasionally happen.) 

But the "complaint-driven" model of enforcement can lead to an uneven, and perhaps even unfair application of the rules. 

Yesterday, Council was faced with an an "unsightly premises" complaint from the residents of Richard's Trail.  They are unhappy with what they consider to be the "mess" that's visible on the roadside in Gordon and Catherine Pastula's farmyard.  Their central complaint is that this farmyard constitutes an eyesore on what's long been considered an iconic and bucolic country road.  But there is some broader context here.  The Pastulas are involved in a high-profile and somewhat bitter dispute with those same neighbours right now over whether they should be allowed to blast tens of thousands of cubic meters of rock on the property to create a water storage cistern for their farm.  (More on that later.)

If you've driven Richard's Trail any time in the past twenty years, you'll have to agree that the what the neighbours now consider a "mess" in the Pastula's yard has actually been there for a very long time.  I think it's fair to say that this particular property would never have made the front page of "Country Living" magazine.  I'm not going to get into the reasons for that; I think we can all acknowledge that it simply is what it is. 

But now, due to complaints from the neighbours, they're in the middle of a "Bylaw Enforcement" issue on this.  Is this fair?  More appropriately, is the entire process fair?  The staff report on this issue openly acknowledged that "there are numerous examples of properties in other areas of the Municipality that are equally or even more poorly maintained (than the Pastula property.)"   The day before the Council meeting, I was approached by another Councillor who had taken a drive through parts of North Cowichan.  With his camera.  In less than an hour, he was able to take pictures of half-a-dozen properties which had a variety of abandoned vehicles, mattresses, a rat-infested motorhome, and other detritus on them.  None of these have been subjected to the heavy hand of "Bylaw Enforcement."  Why?  Because the neighbours haven't complained.

So we, as Council, were faced with a bit of a dilemma.  Councillor Maguire said it well when she talked about being "uncomfortable" with this file.  Unspoken in her comments (but certainly inferred), was the idea that somehow the Pastulas were being "singled out" by angry neighbours; that if the rock quarry file wasn't such a hot issue right now, the "unsightly premises" complaint would never have been filed.  And the 20-year history on this, where - to my knowledge - not a single complaint was filed about the condition of the property, would seem to lend some credence to this unspoken assertion. 

But equally, it would be untenable for Council to tell staff to ignore the Bylaw and forgo any enforcement in this case.  That would set an explicit precedent which would tell everyone that we're not really serious about our Bylaws - that in certain circumstances, Council is willing to turn a blind eye to the rule of law.  So we voted in favour of proceeding with the enforcement.

If there's one good thing that's come out of this, it's that we're going to have a look at this entire issue.  Council passed a motion yesterday, directing staff to
"Draft a policy for Council’s consideration regarding process, expectations
and outcomes related to compliance with, and enforcement of, Municipal
Bylaws, in order to ensure that the process undertaken to gain compliance
is consistent and applied equally to all property owners in the Municipality."
The key phrase there, from my perspective, is in finding a way to ensure that enforcement is "consistent and applied equally.

There are several options, of course.  Among then would be the notion that we beef up staffing in our Bylaw Enforcement Department.  That will cost money.

Another option would be to move away from an almost-exclusive reliance on "complaints" before we start enforcement.  But I can hear the howls of protest on that already.  Somehow, North Cowichan will be painted as a quasi-"police state", where citizens are subject to undue and heavy-handed scrutiny from the bureaucracy.

We could also write fewer Bylaws.  In this regard, I have to say that every time there's a new Bylaw proposed which would imply a role for "enforcement" (for example, our decision a few years ago to ban smoking at Parks and Playgrounds), I have always raised the issue of whether we are properly equipped and staffed to enforce the proposed new rule. 

Heck, we could even scrub some of the Bylaws we have if, in the considered opinion of Council, they cannot be "consistently and equally" applied.  (Although I can't imagine that this would actually happen.) 

Bottom line?  I'm looking for input on this.  Your thoughts.  Pop me an email or leave a comment below.  This issue will require some considerable thought and wisdom, and I'm looking for the collective wisdom of the folks who regularly read the scribblings on this blog - and also those who might be here for the first time.

Other Council matters from yesterday:

- On the Pastula mining permit, Council voted to send another strongly-worded letter; this time to the Minister of Mines, with copies to the Ministers of Agriculture and Environment, asking for an Environmental Impact Study and a Ground Water Protection Plan before any Mining Permit is issued.  If the Permit is granted, we're also asking for a comprehensive groundwater monitoring program to protect private wells and Richards' Creek.  This may seem heavy-handed, but the conditions seem beyond reasonable to me; we would expect no less if a major mining operator wanted to set up shop on the slopes of Mount Sicker to dig out the remaining copper there; in fact, the requirements would likely be a lot more stringent.

- We awarded the contract on the road through Stoney Hill, putting to rest a 100-year old heritage file.  The road alignment is pretty much finalized, although there may have to be a few minor tweaks in some form or other because of ongoing concerns about native middens and burial grounds.  But the construction contract is firm.  And done.

- Also with respect to Stoney Hill, we rescinded a Rezoning Bylaw that would have allowed private docks along the foreshore.  This was, you'll recall, one of the concerns that First Nations had expressed in the discussion about the road; they were worried about the impact of all those docks on the ongoing shellfish harvest in the area, and in some sense, expressed a preference for a road over exclusive "water access."  There are a little over a dozen properties that may still be able to build docks because they don't have road access even with the new road that's being built, but for the rest, we're going to investigate the idea of some "community docks" on public foreshore lands.

-  We also approved a small rezoning for the Maple Bay Marina.  They want to move their fueling dock and the SeaPlane terminal a little further north in the bay.  There was some concern that the rezoning would also allow for the construction of more large boat-houses (they are a "permitted use" under the re-designated zoning), but the owners of the Marina assured us that they had no intention of actually building those; there are tight restrictions in our OCP on how they can be sited, and there's really not enough room in the new, rezoned parcel to meet those requirements while simultaneously siting the fueling docks and the new float plane terminal there.

- And finally, Council was scheduled to talk about my "tax increase limiting" motions yesterday.  The stuff I pitched during the election campaign about limiting tax increases to the rate of inflation, setting some priorities to achieve that, and perhaps undoing a small part of the 2012 "shift" in taxes away from the heavy industry class (the Crofton Mill.)  But we ran out of time, and decided to discuss this at our next meeting.  Honestly?  I'm not upset about that at all.  As I wrote on my FaceBook page late last night, after a 6-hour meeting with some fairly intense debate and discussion on the issues above, I'm not sure I would have had the energy to properly present my thoughts on this in a way that would do them justice and perhaps convince some of my fellow councillors of the wisdom of what I was proposing.  And equally, I would have hated to see my motions dismissed because folks were too tired and worn out to give them proper and due consideration.  So that discussion has been put off to our February 4th meeting.

Until next time.....

9 comments:

  1. Good Blog. You did the right thing on the Pastula property. Not to single them out but two wrongs don't make a right. You could not ignore the bylaw and complaint. You do need a full time Bylaw officer as well as another .6. I think this can be done by looking at other departments that are possibly overstaffed. This is not an attack on North Cowichan but all business's whether it be private or public need some belt tightening in this day and age and looking from within is the answer.

    ReplyDelete
  2. Regarding the issue of Bylaw Enforcement on the Pastula property I do not agree with the way Council is handling this. If you are going to enforce this bylaw then you should also be going out to the other half-dozen properties that your fellow Councillor found and also serving them with the same enforcement "unsightly premises" Maybe no one has complained but your Councillor has targeted other properties and they are also breaking the bylaw. Don't turn a blind eye on them because no one has complained.... There is also history with Pastulas and their neighbours, it is more than the "mess" (your words). I have no objections to change but when people start moving into rural areas and decide they don't like what is going on be it smell,noise, hunting etc. they start making lots of noise themselves.

    ReplyDelete
  3. As a city councillor for a city that has what some consider far too many by laws, I would caution about trying to enforce all bylaws "evenly." First, it is never even...someone will always find a counterexample to show that. Resident A has a motorhome parked in his kitchen, violating section IV, chapter 6, bylaw 123.4. The second he gets a ticket, you can be sure that he'll find, within hours, numerous neighbours who park motorhomes in various rooms, not to mention Joe down the street who parks a VW van in his kitchen. After all, it's not fair that you can park VW vans in your kitchen but not motorhomes, right? And then he'll do one of two things...pay the ticket but harbour a grudge that he'll be sure to share with all his friends, or not pay the ticket and take one of a range of actions, from lodging counter complaints to incessant, and sometime years-long thorn-in-the-sideism.

    That's why Vernon has gravitated toward a complaint-driven response. As you've mentioned, people will violate this or that bylaw daily, sometimes hourly. If you try to enforce all bylaws all the time, your bylaw officer payroll will explode and more people will be unhappy than happy.

    I don't see this as a structural problem at all. It's a one-off with mitigating circumstances and I'd treat it as one. Someone might even suggest quietly (well outside city council, that the complainees find a broken bylaw on the complainers' property.

    Scott

    ReplyDelete
  4. Hi Al,
    Great job summarizing the meeting last night it was a full house with a lot of people in attendance. With respect to the issue of selective by-law enforcement I had a few discussions with others on the topic and did a little reading about it, these are my thoughts. I quoted a short passage at the bottom of this note, that rings true for me. The essence is the by-law should be enforced if there is “substantial public interest in the enforcement”.

    For example, if no one complains and the bylaw enforcer (or council member) just drives around looking for infractions then it does not meet the test of “substantial public interest”. Do not enforce.

    If I have a disagreement with one member of my community and they retaliate by informing the city about a by-law infraction on my part but no one in the community cares about the infraction, then this also does not pass the test of “substantial public interest”. Do not enforce.

    If someone provides a cheap place for someone to live in an “illegal” basement apartment and it helps the landlord pay their mortgage, and the community doesn’t seem to mind then it does not pass the “substantial public interest” test. Do not enforce.

    However, if a large proportion of the community wants a by-law enforced then it does meet the “substantial public interest” test and the by-law should be enforced.

    By-laws are not law, let’s not confuse these two words. Laws are intended to be enforced equally all the time, and the RCMP and police forces are charged with these tasks.

    However one last word of caution, just because people show up at council meetings and protest about something, it may not reflect the average homeowners view. We often listen to special interest groups too often at the sake of reasonable people. In the phrase “substantial public interest” please do not confuse “public” with the people that happened to show up at the meeting or people that have a “special” interest they are crusading for.

    So, I think council made the right decision last night enforcing the by-law, it seemed there was “substantial public interest” in the bylaw being enforced. The city’s role is to determine if the request meets the “substantial public interest” test. When writing the policy on how by-laws should be enforced consider the wording “substantial public interest”.

    We do not want to live in a place where the municipality is going around fining people for the sake of enforcing by-law. Your 0.6 FTE role for enforcing by-law seems adequate for the municipality in my opinion.

    And again, thanks for approving the road. It definitely meets the “substantial public interest” test.

    Decision of the Court of Appeal in the case of City of Toronto v. Polai [1970] 1 O.R. 483, where the appellate court ruled that despite the discriminatory enforcement of the impugned by-law on the part of the municipality, the substantial public interest in the enforcement of the by-law should prevail
    over the private interests of the admitted transgressor, notwithstanding the discriminatory application and resulting inequity to the latter.

    Reference http://www.dzlaw.com/pdf/should-past-instances-of-spotty-or-selective-enforcement-of-the-declaration-by-the-condominium-corporation-by-harry-herskowitz-2011.pdf

    ReplyDelete
    Replies
    1. Excellent points...thanks. I'm going to shamelessly steal them for our city if that's ok.

      Scott

      Delete
  5. Thanks for the great update! I appreciate your level of detail and also your candor. Glad that the Stoney Hill situation has been finally resolved! Long over due.

    ReplyDelete
  6. Thanks for linking me into your blog Councillor...some very thoughtful points. I, however, personally don't care about the looks of the Pastula farm - I only care about what those piles of 'unknown materials' and leaking oil and gas (abandoned vehicles) may be doing to the water (and therefore affecting wells, Richards Creek, fish). By-law enforcement is a necessity unless you wish anarchy. If you need extra manpower to enforce the laws you have already on the books, then do so but the visual eyesore and the permit for an open pit mine are very separate issues - please don't link them together on a personal 'vindictive' level!

    I think if you check with your staff, you will find proof that trash issues have been recorded years earlier, possibly as far back as 2007. The Mines Permit opposition just started Aug. 2014 when The Ministry of Energy and Mines issued a request for community input regarding the application and you guys (Municipality of N. Cowichan) held a council meeting.

    I'm betting there are very few, if any, trash complaints regarding Pastula's property since then (Aug 2014) - the locals are now distracted by the spectre of an open pit mine license and what IT will do to the environment!!!

    ReplyDelete
  7. I agree with your view Al, that Bylaws must be enforced or why the heck would you bother with the bureaucratic process of putting them in place? That just doesn't make sense. Also, All Bylaws should be easily accessible on the main page of the website. It should have a clear link so residents do not need to drill down to specific departments to find them. Bylaw Enforcement Officer names and contact numbers should be listed as well. Are they not staff?
    It looks to me that the Muni has a lot of cleaning up to do when it comes to policing Bylaws and getting the information out to the public.

    ReplyDelete
    Replies
    1. Actually, all of our Bylaws are indeed available "in one place".

      http://www.northcowichan.ca/forms/bylaws.aspx

      Delete