Last week, for the 156th week in a row, the District of Sechelt asked the province to extend the municipality’s Seawatch state of local emergency (SOLE); to extend the SOLE to Feb. 18 and into its third year.
Feb. 15 marks the anniversary of the snowy 2019 day when residents of 14 homes in a yet-to-be-built-out 28-lot subdivision were required to move out because of the risk of sinkholes and subsurface instability.
Sechelt Mayor Darnelda Siegers declined Coast Reporter’s request to update the community on the situation citing pending court action involving the municipality. Legal claims by subdivision property owners have been pending against Sechelt since 2015.
The saga behind those claims began in 2004 when developer Concordia Seawatch Ltd. bought land overlooking Snake Bay at the northwest end of the West Porpoise Bay neighbourhood. Sechelt’s bylaws required a professional geotechnical report to advance development plans for the site and to address soil and slope stability issues. Concordia obtained such a report in 2006. It documented that sinkholes had developed on the site and how future infrastructure and building foundations should be designed. Sechelt required Concordia register a restrictive covenant including that report on the titles to ensure that lot purchasers were made aware of those conditions. The subdivision was approved in 2006, trees were removed from the site and construction of high-end homes began.
In June 2012 a sinkhole opened up on Seawatch Lane. Over the next seven years more would emerge, rendering one completed home uninhabitable and forcing partial road closures. On its website, Sechelt states it spent more than $680,000 on studies and assessments related to the site, including a report received in July 2015 that estimated remedial action costs in the $10 million range, with no guarantees that undertaking such efforts would resolve the issues. The municipality did not proceed with the work.
On Christmas Day 2018 a large sinkhole daylighted. Sechelt had a site inspection conducted in early days of 2019. A report dated Feb. 6, 2019, from that inspection identified risks related to continued use of the site. The next day Sechelt issued an evacuation alert to the subdivision’s residents, followed by an evacuation order and the barring of public access to the area eight days later.
Owners apply to appeal to Supreme Court of Canada
Lawyer for owners of eight of the properties, Jeff Scouten told Coast Reporter on Feb. 7, 2022, that leave has been filed to appeal two August 2021 BC Court of Appeal decisions to the Supreme Court of Canada. “It will be several more months until we know the status of that application,” Scouten said, noting that owners of three of those properties continue to reside in the Sechelt area.
Those decisions were delivered on appeals of BC Supreme Court rulings from 2020. One dismissed the owner’s appeal of a ruling that Sechelt was protected against their claims for damages resulting from their investments in homes in the subdivision by the covenant on the property titles. The other upheld the dismissal of the owner’s claims against the municipality’s former subdivision approving officer, Ray Parfitt.
On Nov. 1, 2021, that same court granted property owner Ed Pednaud access to 30 documents related to the subdivision that Sechelt had claimed were confidential. Scouten said those documents “shed some light on the district’s internal thinking around the declaration of the emergency and earlier on…I believe they will be helpful to the plaintiffs in their claims against the district and the approving officer if the Supreme Court of Canada allows the appeals to be heard.” The dispute over those documents began in 2015.
When asked if COVID-19 related slowdowns for the courts delayed these cases, Scouten said that had a “small” impact. “The District of Sechelt and the province have mounted a very spirited defence to all aspects of the case. In fairness, they have both indicated an openness to mediating the dispute, but the district is not prepared to enter into mediation until it is known whether there is a claim against it. What has really held up the process here has been all of the interim decisions and the appeals and cross appeals of the earlier decisions. This is a piece of litigation that has become procedurally complicated, and it is those complications that have led to the stretching out of the time.”
Included in the claims the owners filed against Sechelt and Parfitt were the province, Concordia Seawatch Ltd., its one-time principals Ronald Davis and Ronald Antalek, the home warranty provider, along with several realtors and engineering firms involved with the properties. Scouten said that none of the claims can proceed until it is known whether the district and approving officer are either in or out as part of the action. “In the meantime, the plaintiffs will be proceeding with examinations for discovery of those other defendants,” he said.
Province appealing BC Supreme Court decision
Scouten also said he has been advised the province has or will be filing notice of appeal of a Jan. 10, 2022 BC Supreme Court decision that ordered it pay between $108,000 and $131,000 in costs in a claim of nuisance filed by Seawatch property owners Gregory and Geraldine Latham and Carole Rosewall.
Those amounts were related to the costs of being forced to move and reside away from their homes by the province’s continued extension of the SOLE.
In his reasons for decision, Justice Gomery wrote that those actions were “an unlawful and abusive purported exercise of statutory authority.” (Those owners were represented in court by Jason Gratl, and are not part of the actions of the group represented by Scouten.)
Evidence provided during that trial by Ian Cunnings, a former Emergency Measures British Columbia senior regional manager will be introduced in future actions, according to Scouten. The reasons for decision document states that Cunnings testified that there were, in his view, legal options that would have ensured public safety but which did not involve excluding the Seawatch residents from their homes.
Scouten’s clients also have filed to amend their claim of nuisance against the district and the developer to include the same claim against the province that resulted in the judgement involving the Latham’s and Rosewall. “If our appeals to the Supreme Court are allowed, then it is game right back on against the district on all of the existing claims and to that, we can add a new claim of nuisance.”
His clients have also requested a judicial review of Sechelt’s refusal to pay compensation as required under the Emergency Program Act.
No court date details for any future actions could be provided by Scouten.
In relation to future claims for damages as a result of break ins and vandalism that have occurred since the homes were left vacant, Scouten said that is possible. “The reality here is that these properties are valueless now to my clients. The damage has already been done, these people have lost their homes forever. It is both surreal and heartbreaking for them.”
“The way that the District and the province have chosen to respond and to deal with an emergency has been to shut the neighbourhood down, to take it out of circulation, to prevent use of it by my clients and access to it by anyone… That has been their only response. The question is, does that give rise to a right to compensation.
“Our clients say that it does.”
Sechelt installed and upgraded security fencing and made commitments about site monitoring in 2019. Despite those efforts, the fencing designed to bar access to the site has been damaged and reports about suspected break ins at the evacuated homes from residents of the adjacent West Porpoise Bay neighbourhood of “The Shores” have been made. Video of a break in suspect leaving the site dated Jan. 21 of this year is the most recent posted to the group’s Facebook page.
The Sunshine Coast RCMP detachment told Coast Reporter in 2020 that break-ins, thefts and vandalism at the homes occurred as early as mid-2019. They confirmed that officers investigate those reports but do not enter the closed area.
2022 also marked the third year that the BC Assessment Authority valued properties in the subdivision at one dollar and any improvements on those lands also at a dollar.
The 2019 valuations of completed homes in the subdivision were in the $1.2 million range.