January 5, 2009
Mr. Fred Bates, Chairperson, & Directors
Comox Valley Regional District
600 Comox Road
Courtenay, B.C. V9N 3P6

Dear Mr. Bates and Directors:

RE: THE REASONS WHY THE BOARD SHOULD NOT FINALIZE THE DEVELOPMENT PERMIT FOR MR. WAYNE PROCTER’S GAS ‘N’ G0 STATION ON THE DYKE ROAD

On October 25, 2007 the last CVRD board issued a conditional development permit to allow Mr. Wayne Procter to develop his Gas ‘N’ Go service station on the Dyke Road. It is our understanding that Mr. Procter has met most of the conditions of the permit and that you are close to finalizing the development permit, possibly at your next meeting on January 27, 2009.

In our opinion the original decision to issue the permit, while well-meaning, was a serious mistake. It created the problem that is now facing us. If you finalize the development permit you will introduce an additional level of complexity to the present situation and, more significantly, you will close some doors that are now open to you—in particular your ability to negotiate with Mr. Procter to buy him out. Once Mr. Procter has his development permit there is very little need for him to negotiate.

In this letter we will explain why issuing the conditional permit was a serious mistake. We will then challenge the position of the board that it must follow through on the issuing of the permit because it is a “Done Deal”. We will point out the dangers of finalizing the development permit and we will conclude with some recommendations.

The Basic Mistake: Issuing the Conditional Development Permit to Mr. Procter In The First Place.

On November 4, 2008, CREAC submitted to you 42 petitions with 1,319 signatures of Comox Valley residents opposed to the Gas ‘N’ Go station on the Dyke Road. As we’ve discussed this project with residents, the comment we hear most often is…"I can‘t believe that anyone would think of putting a gas station on that site—and I can’t believe that someone else would allow him to do it.”

In previous correspondence to the Board, CREAC has outlined the two major concerns that people have talked to us about: the danger to human life and the potential damage to the environment.

The Safety Issue

In a letter to the CVRD from Mr. Peter Crawford dated March 20, 2008, the City of Courtenay noted that the proposed zoning was an inappropriate land use. The letter lists several objections but the most significant was the lack of detail on traffic flows. It would seem that this complaint might have triggered an examination of traffic patterns and the potential for accidents, but there was no follow up by the CVRD on this issue. So we conducted our own research.

With a call to ICBC we were able to determine that between 2003 and 2007 (the last statistics available) there were 125 crashes on the Dyke Road between the top of Comox Hill and the 17th Street Bridge. Of these crashes, 75 involved bodily injury and 50 involved only damage to vehicles. Twenty-five crashes a year (two crashes a month) do not seem inconsequential. We think it is safe to assume that there will be an increase in traffic flow due to population increase in our communities. With cars and trucks coming in and out of the proposed site, especially fuel and delivery trucks, the number of crashes will likely increase. Our major concern here is that you granted the conditional development permit without asking any questions about the potential danger to human life due to increased traffic and congestion on the Dyke Road.

The Environmental Issue

Our second area of concern is the potential harm to the physical environment. Here we will simply summarize what we have stated before.

· Gas stations have a notorious reputation for polluting water tables and nearby bodies of water.
· The land in question is situated on a flood plain a few yards from an estuary. Recent scientific research indicates that levels of water in B.C. estuaries will undoubtedly rise because of global warming.
· The site is in an earthquake zone only 20 kilometres away from the epicentre of the 1946 earthquake, the largest land-based earthquake in Canadian history. In terms of risk potential, it is in the highest risk category.
· The land is unstable. The Dyke has been built over the Tsolum/Puntledge Estuary and water from these rivers flows under the Dyke Road and enters the Courtenay River Estuary. There are numerous anecdotal accounts of the instability of the land during the earthquake and there are a number of scientific studies that document the liquefaction of the soil in and around the Dyke Road.
· The estuary has been officially designated as a highly sensitive ecosystem and a Globally Important Bird Area. In addition, adult salmon pass through the estuary to spawn in the Puntledge and Tsolum rivers. Smolts pass down through the estuary on their way to the sea.
· Finally, the whole estuary is considered an important archaeological site. The Archaeological Branch of the provincial government has indicated that there is a high probability that earthwork on the site—drilling a well, replacing old water pipes, burying fuel tank, doing foundation work on buildings etc.--will encounter important and unrecorded archaeological deposits.

The development of a gas station on the proposed site is a high risk venture in a high risk site. Yet there have been no serious assessments of traffic flows and their potential risk to human life and wellbeing, no environmental impact studies, no requirements for geo- technical studies on the stability of the land, no “natural hazards” assessment (that considers ground conditions, storm events, etc.) for the entire Dyke Road.

Before it issued the development permit the CVRD must have recognized that developing a gas station on the site was a high risk venture. It should also have recognized that it lacked technical information to make a proper decision on this matter and that the information it did received from departments like Environment and Transportation was totally inadequate. But, instead of putting the project on hold to get the information it needed, (doing its due diligence), the CVRD rushed to judgement and issued the conditional development permit. In what we refer to as the “Done Deal Argument” the Board has since confirmed its obligation to proceed with the development permit.

The “Done Deal Argument”.

In early November we wrote to you, explaining our concerns and requesting that, given the complexity of the issues involved in the project, you set up an Independent Advisory Panel—and delay making a final commitment until the Advisory Panel reported back to you. We suggested the following resolution.

Be it resolved that the Comox Valley Regional District establish an Independent Advisory Panel to provide advice on the Dyke Road Gas ‘N’ Go project and that the development permit not be finalized until the board has received, and had a chance to consider, the recommendations of the panel:

A short time later we received this response from Mr. James Warren, the Manager of Legislative Services:

Please be advised that the board cannot approve the requested action as the board approved the development permit for 3080 Comox Road on October 25, 2007 subject to a number of conditions being met. The board now has a legal obligation to issue the development permit for the proposed Comox Road Gas N Go application when all conditions placed on the application are satisfied.

This response is what we refer to as the “Done Deal Argument.” We interpret it as meaning: Once we have made a serious mistake and issued a conditional development permit, we are legally bound to follow through on our mistake and finalize the permit. This is a done deal.

It is not our intention here to get involved in the legal arguments—something we might be required to do in the near future, but we would like to raise some common sense objections. In our opinion the “Done Deal Argument” is based upon two erroneous assumptions. The first deals with the relationship between zoning, legality and justice. The second has to do with your role as directors and your obligations under the Municipal Act.

Zoning, Legality and Justice

Those of us who live in a democratic society that is guided by the rule of law tend to equate legality with justice. If it is legal it must be just, so we have a moral obligation to enforce laws that are legal. But we have innumerable examples of where things that are legal are sometimes not just.
Segregation in the southern United States was legal according to the Jim Crow laws, but unethical and immoral. So were the Apartheid laws in South Africa.

Here in Western Canada, throwing first nation leaders into the Okalla Correctional Institution in Burnaby for celebrating their cultural potlatches was legal. But it was also unjust, immoral and unethical. So was the decision made over many decades to round up aboriginal children, often without their parents’ consent, and ship them off to residential schools. As one senior Ottawa bureaucrat at the time noted, the purpose of these schools was to acculturate them to the white man’s ways by “taking the Indian out of them.”
So, just because a law is legal it does not make it just. There are numerous examples of legally unjust laws.

We are not suggesting that the granting of a conditional permit to Mr. Procter was a deliberate effort to violate rights—but that was the end result. Here the cause was failure of the previous board to take into account significant societal changes and instead rely on badly outdated legislation.

The C-1 zoning under which Mr. Procter was allowed to develop his gas station was probably put in place more than 20 years ago: at a time when there was not nearly as much traffic on the Dyke Road as there is today, and where the term “global warming” had not even been created; at a time when most people were only beginning to recognize that the salmon were being wiped out by toxic chemicals in our local rivers and the trumpeter swans were fighting extinction; at a time before international studies had confirmed that gas stations around the world were a major polluter of water tables and nearby bodies of water. The legislation goes back to a time before people became aware of these realities and demanded that their governments wake up to the changes occurring around them.

By granting a development permit to Mr. Procter, the Board seems to be saying to us: We believe that the conditional development permit we have granted to Mr. Procter under the old C-1 zoning legislation will protect the people traveling the Dyke Road and will protect the environment now, and into the future. We don’t believe that. And we suspect that that you and the other directors don’t really believe it either.

So what should the board of directors do about the present situation?

In our opinion you should stop trying to defend a bad mistake and begin figuring out how to rectify it. We would advise that you begin by reframing the situation and your role in it: step outside the narrow legal boundaries your staff tells you that you must adhere to and seek guidance from a higher power. And here we are referring not to some divine intervention but to a straightforward interpretation of the Municipal Act under which you operate and which your directors have pledged to uphold.

Your Obligations under the Municipal Act
Section 2 of the Municipal Act states the purposes of the regional district. The first two purposes, (a) and (b), refer to good governance and the provision of required services. But it is the next two purposes that really attract our attention.
(c) providing for stewardship of the public assets of its community, and
(d) fostering the current and future economic, social and environmental well-being of its community.

In our opinion the granting of the development permit runs contrary to your obligation to ensure stewardship. It does nothing to foster current and future economic realities. The estuary/Dyke Road as a future park would greatly enhance the beauty and appeal of the Valley for residents and tourists alike. (Birding alone is the most popular form of outdoor recreation in North America and has the potential to attract thousands of visitors to the Valley each year). Finalizing the development permit runs completely contrary to your obligation to foster the social and environmental wellbeing of our community.

Your staff will argue, as it has in the past, that the problems of traffic and environment are not your problem but the problem of other departments. If there was no relationship between the proposed Gas ‘N’ Go station and public safety or potential damage to the environment we would agree with them. But there can be no doubt that the gas station raises the level of risk to public safety and environmental protection. Trying to pass the buck to other departments will not work. The minute there is a serious accident on the road even close to the proposed gas station, or a major spill of toxic materials, the Ministries of Transport and Environment will be arguing that these problems wouldn’t have occurred if you hadn’t approved the development permit. And they would have a case. Everyone will be trying to shift the blame, and everyone will get sued.

Our current understanding of issues associated with this development are:

§ the permit will allow the construction of a type of business that has a notorious reputation for water pollution,
§ the location is on an estuary, close to a significant archaeological site, on a flood plain, in a seismic area, on unstable ground,
§ climate change research indicates that BC coastal waters may be subject to higher storm surges particularly in areas facing south or south-east like the Courtenay River estuary,
§ the area is officially designated as ecologically significant and sensitive and is an Important Bird Area,
§ the business will be constructed on the side of a narrow road with a heavy traffic flow and a significant history of crashes, but there is no comprehensive traffic flow assessment and, to date,
§ the CVRD has not engaged in serious consultation with the K’omoks First Nation prior to issuing the development permit despite a Supreme Court requirement to do so.

Given the above facts, how is your approval of this development permit consistent with your legal requirements under the Municipal Act to provide “for stewardship of the public assets of its community” and “fostering the current and future economic, social and environmental well-being of its community”?

Because Section 2 of the Municipal Act indicates that you must be accountable (answerable) to the people who have elected you, this is the question we expect you to answer.

Finalizing the Development Permit: the Risk Factors

Though you may see the issuing of the development permit to Mr. Procter as a way out of a potential legal quandary, the decision may well come back to haunt you. There are a number of complications that may arise.

1. The K’omoks First Nation has indicated in a letter to you from Chief Ernie Hardy (dated March 6, 2008) that if you approve the development permit they may consider legal action. (We are all aware of the Kensington Project in Union Bay where the Comox Strathcona Regional District tried to shift the responsibility for consultation to the Provincial Government and the Provincial Government, supported by the K’omoks First Nation dumped the responsibility right back in the lap of the CVRD. History seems to be repeating itself.)
2. CREAC has already forwarded to you a letter from West Coast Environmental Law challenging your decision to grant the development permit and we may pursue this option further.
3. If there is the slightest possibility that a crash close to the site, or a spilling of toxic substances, is in any way related to your decision to approve the project, you can expect that members of the public will take legal action, probably at great expense to the taxpayers.
4. If you allow the development to proceed, you will complicate further your ability to work out an alternative to the Dyke Road. It is apparent already, to us and to some of your own directors, that the current road is reaching the breaking point in terms of its ability to accommodate the traffic flow between Courtenay and Comox. A new road that doesn’t cross the flood plain is needed, and it is going to be needed relatively soon. If you approve the development permit and Mr. Procter establishes his gas station you will find it much more expensive to buy Mr. Procter out and much more difficult to plan for a new road and for the estuary.
5. By finalizing the development permit you close the door to more environmentally sensitive and aesthetically suitable uses that foster the social and environmental well-being of our community—such as developing a parkway that takes advantage of the natural beauty of the estuary and Dyke Road.
6. Rightly or wrongly, The Gas ‘N’ Go project has become a test case for your leadership and credibility as a new CVRD board. (For some of your directors, opposition to the Gas ‘N’ Go project and willingness to work out a solution was a significant issue in your recent election campaigns.) This project is only one of a number of issues that have to be addressed in the near future (e.g. the old Field Sawmill site). To succeed you will need the cooperation and support of the Comox Valley residents, particularly the well-organized environmental groups that have, over the years, spent many thousands of volunteer hours working hard to preserve the estuary and the rivers and streams that flow into it. If you issue the development permit you will seriously damage your credibility and a precious resource will be under even more threat than it is at present. You will have become part of the problem instead of part of the solution.
7. Finally, if you issue the development permit you will greatly strengthen Mr. Procter’s hand and weaken your own position in terms of negotiations.

Our Recommendations
CREAC believes that, by issuing the development permit in October/07, the Board made a serious mistake and failed to meet its obligations under the Municipal Act as stewards of public assets. We believe that it is up to you to rectify the situation. We make the following recommendations.

1. Put the project on hold and immediately open negotiations with Mr. Procter to buy him out or seek an alternative solution.
2. Set up an Independent Advisory Panel to assist you in the on-going development of the Dyke Road and the Estuary.
3. Because the road is vulnerable under the current C-1 zoning (which allows for inappropriate permitted uses such as warehouses and outdoor storage) freeze all further development on the Dyke Road and proceed with all due haste to develop a plan and appropriate zoning for it.
4. Begin work immediately on planning for an alternative road between Courtenay and Comox—one that doesn’t cross the flood plain.

We would appreciate the opportunity to make a presentation to the Board at your next meeting later in January to discuss these issues further.
Thank you.

Yours truly,
Mike Bell, for the
Courtenay River Estuary Action Committee (CREAC)