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Court decision favours property owner in 'unnecessarily complex' SCRD permit dispute

An application to adjust a Sunshine Coast Regional District building permit for a 4800 square foot home near Sakinaw Lake by 28 square feet is to be “dealt with appropriately within 60 days” under a ruling delivered Dec. 1 by BC Supreme Court.

An application to adjust a Sunshine Coast Regional District (SCRD) building permit for a 4,800 square foot home near Sakinaw Lake by 28 square feet is to be “dealt with appropriately within 60 days,” under a ruling delivered Dec. 1 by BC Supreme Court.

Justice Emily Burke’s written reasons for judgment detailed that order and dismissed an SCRD action against an owner of 4355 Lake Road, Lorna Vanderhaeghe. The SCRD’s filing had sought orders that she bring the property into compliance with the various bylaws and acts, remove illegally constructed structures and that action costs be awarded to the local government.

Vanderhaeghe told Coast Reporter she feels vindicated by the decision. Not only does it confirm her new home is legally conforming, she said, it supports her assertion that the project was never in violation of any SCRD bylaws.

Not a 'build first ask permission later' case

Burke’s decision stated that the case became “unnecessarily complex because of what appeared to be a perception that perhaps an example could be made of the Petitioner [Vanderhaeghe] to ensure others do not build first and ask permission later."

"In my view, that is not what the Petitioner did," wrote Burke. "It is unfortunate that this argument is made and path followed in the context of a problem essentially created by the District’s [SCRD's] own making."

Burke has retained jurisdiction to award costs and or remedies in the matter. Vanderhaeghe did not disclose how much the proceedings, which included seven days in court cost her. She said that she hasn’t discussed costs with her lawyer but they will be seeking costs.

"The SCRD is considering the recent judgement and no decision has been made on further steps at this time for comment on the decision," according to an email received from the regional district's communications manager Aidan Buckley on Dec. 6. 

Background

In 2016, Vanderhaeghe, whose family has owned the property for about 20 years, began discussions with SCRD staff about redevelopment of the site which had a cottage located 9.5 metres from the lake frontage. That cottage was legally non-conforming as it was constructed before regulations requiring a 20-metre setback from the lake were enacted. In 2018, the SCRD advised her that a development permit would not be required to build a new structure, according to the written judgment. 

By March 2019 that decision changed, according to the judgment. Vanderhaeghe then applied for and was issued a development permit for the property, a permit to demolish the cottage and a building permit for a new structure. About seven months later, she asked SCRD staff about changing the new structure’s plan to add about 28 square feet. She was advised that a development variance permit (DVP) would be needed which would require a decision from the board. She then submitted a DVP application.

“This appears to be where and when the crux of the disagreement between the parties arises,” Burke wrote in her decision document.

After following up on reports from a resident of a neighbouring property about potential height and setback violations of the building under construction, the SCRD placed a partial stop-work order on the property on Dec. 17, 2019. A full stop-work order was issued on Feb. 28, 2020.

Four staff reports about the project would be presented to the SCRD’s elected officials in the months that ensued. Those culminated with a Nov. 12, 2020 report to its planning and community development committee recommending that the DVP application be denied. The committee supported staff’s recommendation and within two weeks (on Nov. 26) the board voted to not approve the DVP application.

On May 3, 2021, Vanderhaeghe applied to update the existing building permit to include an additional 28 square feet in the structure. The SCRD refused to process her application and suggested she apply for new development and building permits to make that change. At that point, she began her legal proceedings.

Judge’s conclusions

Burke concluded that the SCRD’s actions were unreasonable on four fronts. Those were requiring a DVP for the project and subsequently denying Vanderhaeghe’s application for a DVP, refusing her application to amend the building and development permits and requiring fresh development and building permits be issued for the new dwelling to make the square footage change.

In her decision, Burke declared that a legally conforming “new dwelling” with an approved varied setback from Sakinaw Lake of 9.5 metres from the natural boundary of the lake has been permitted and that the structure does not require a DVP.

Procedural fairness breach

Burke also declared the SCRD’s elected officials breached the rules of procedural fairness at the committee and board meetings on Nov. 12 and Nov. 26, 2020. She ruled that occurred as the SCRD limited Vanderhaeghe’s time to make submissions at the meetings; excluded her lawyer from making submissions and failed to provide the board with a copy of a letter from that lawyer. She wrote that she would have “quashed the decision of the Board to reject the Permit Application due to this lack of procedural fairness," but given her earlier declaration on the permit, quashing was unnecessary.

A 5,000-page file

On top of the financial impacts and time delays, she experienced through the court process, also troubling for Vanderhaeghe was her belief that her elected officials failed to represent taxpayers' interest by not reviewing pertinent materials before rendering a decision. She said she expects more from them than simple approvals of staff reports. “We elect those officials to act on our behalf. Each one of those officials works for the community. They are supposed to be the sounding board that determines if the SCRD is making the right decisions for the community,” she said.

Burke stated in her decision that the board “essentially rubber stamped” staff recommendations. She cited comments made by three of the elected representatives (directors Leonard Lee, Donna McMahon and former director Andreas Tize) at the meetings in question. Those referred to more than 5,000 pages of background material assembled by staff related to the DVP’s consideration.

At the Nov. 26 meeting, Tize stated “I don’t think any of us [board members] are either willing, capable, or qualified to go through all those 5,000 pages and come up with a better solution than what staff has done.”

”While it is open to the Board to accept staff’s recommendation, it is unreasonable to do so without even considering the subject matter at hand,” wrote the judge.

Mixed reviews on SCRD processes

Vanderhaeghe wrote in an email message, “The SCRD has just wasted an inordinate amount of taxpayer dollars on a baseless court case that has spanned over the last couple of years. Considering it can not fund an adequate water system and is charging coastal taxpayers huge levies to fund sewer treatment facility repairs and upkeep this was a huge waste of our tax dollars.”

An SCRD process that Vanderhaeghe said she is supportive of is review of applications on development and building projects by local Advisory Planning Commissions (APC). She stated that the Area A (which includes the Sakinaw Lake area) APC “is just excellent…the members include builders and developers and that is an important point, people involved in making recommendations should be people who work in these areas.”

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