Saanich Mayor Richard Atwell considers Tuesday night's ruling to release three properties from the municipality's controversial environmentally sensitive areas map a precedent setting move.
Council voted 5-4 in a special session Tuesday to remove the properties of 4007 and 4011 Rainbow St. and 8-1 to remove 4351 Gordon Head Rd. from the ESA atlas. It therefore releases them from the restrictions of the controversial environmental development permit area (EDPA) bylaw that was implemented in 2012.
Couns. Fred Haynes, Susan Brice, Leif Wergeland, Colin Plant and Mayor Atwell voted for the removal of 4007 and 4011 Rainbow St. while Couns. Vic Derman, Judy Brownoff, Vicki Sanders and Dean Murdock were against. Only Derman voted against removing 4351 Gordon Head, standing ground in support of the bylaw and staff’s interpretation of it.
“There’s no coastal bluff ecosystem on the [4351 Gordon Head] property,” said biologist Ted Lea, whose reports successfully supported all three property removals. “If left unattended, the invasives will overrun this property within a few years [or sooner].”
During the debate owner Chris Phillips of 4351 Gordon Head suggested the bylaw has been mis-applied and has instead gone so far astray its become an unintentional tool of land appropriation.
“It’s been three years, but this shows that democracy has worked,” said Phillips, who bought the property with wife Charmaine in 2012. "The [Saanich] biologist report was done to a different standard [than the province] and you cannot just shift the standard overnight. We met the guidelines and jumped every hurdle they asked us to, so they should let us out."
Plant voted in favour of removing all three properties but didn't think it necessarily set a precedent as each property will be reviewed on a case-by-case basis. However, Atwell saw it as a landmark case.
“I think it does set a precedent,” Atwell said. “I think we’ll have a number of properties very similar to these, and [other] homeowners will have the expectation that they can come out as well if warranted by the same conditions.”
Other speakers suggested the EDPA bylaw was created on the fly, to which Coun. Judy Brownoff responded it took years and was created by a number of professionals.
Needless to say, there was a divisive set of opinions between residents. Some were pro-EDPA while most were anti-EDPA. The latter cheered and clapped when the properties were removed.
“It’s been a long time coming, we’re very happy the two Rainbow properties are out of the EDPA as they should be,” said Anita Bull, representing her mom, Teresa Bijold (owner of 4007) and uncle Norman Webb (owner of 4011). “We wanted them out because there is no sensitive ecosystem on the properties, they were wrongly mapped, and council agreed on that April 25.”
Couns. Judy Brownoff and Vicki Sanders were on council when the EDPA was implemented and stood against the removal of the Rainbow street properties but did not stand in the way of the 4351 Gordon Head Rd. removal.
“[The EDPA] was not done on the fly, it took years and a number of professionals to develop the bylaw,” Brownoff said. “At the last process there was talk about hardship, [but] I’m not sure there’s a hardship.”
“There’s only a small amount of Garry oak ecosystem left and it’s worth protecting,” Sanders said.
Phillips wasn’t the only speaker to suggest the EDPA is leading to a form of land appropriation by way of restricting the owner’s usage. It didn’t sit well with Vic Derman.
“It’s not appropriate to suggest staff are appropriating land, they’re trying to apply the bylaw,” Derman said.
The property of 4351 Gordon Head had two motions, the first to remove a coastal bluff covenant and the second to discharge it from the EDPA.
The removals are not the first from the EDPA but are the first since it became controversial last year.
"This is a process council embarked on in order to provide some kind of judicial role where staff feel they can no longer make a decision," Atwell said. "Council can, and does exist as a form of appeal, and in the EDPA we are an appeal process for EDPA relief.
"I think council made the right decision."
Earlier this spring a pair of legal students at UVic prepared a report that supported the EDPA's abiltiy.