September 02, 2023 – On June 14, 2023, Krystyna Janik filed a Petition in the Supreme Court of BC against the Town of Qualicum Beach seeking to resolve a years-long dispute related to a new home she had built on her property in the Bluffs subdivision.
“If it’s not our decision, then why were we [Council] asked [by staff] ? …We were asked [in December 2020] to do something [direct staff to withhold the occupancy permit] that we had no authority over.”
Mayor Teunis Westbroek
The Town has, to date, refused to issue an Occupancy Permit to Ms. Janik claiming that her home, constructed five years ago in 2018, is two feet too tall, in violation of the maximum height allowed in the home’s designated zoning (8.0 meters, 26.25 feet).
Town Administration and Council have repeatedly refused to grant a Development Variance Permit (DVP) that would forgive Ms. Janik (and her builder 1045664 BC Ltd.) their transgression.
Questions arise. Were the construction specifications non-compliant with the height restriction? Did the builder not accurately build to the specified height? Was the method of measuring the finished height imprecise? There is much debate over what exactly is the “ground level” from which you measure the building’s height.
Additionally, based on comments at a recent Town Council meeting, both the Town CAO and Council may have exceeded their authority in refusing to issue an Occupancy Permit.
Town Planner tells Council they do not have the authority to refuse an Occupancy Permit
As revealed at the Regular Town Council meeting on April 12, 2023, back in December 2020, Town Council at the time (Wiese, Filmer, Harrison, Westbroek) by formal resolution directed Town staff “to not issue an occupancy permit or any other permits until the height issues were resolved.”
The latest application from Ms. Janik for a Development Variance Permit came before Council on April 12, 2023.
In the Planning Department’s staff memo, with the concurrence of both Corporate Administrator Heather Svensen and Chief Administrative Officer Lou Varela, staff recommended that Council refuse the latest DVP, a consistent position of Town staff since the first DVP application was received in 2018.
However, staff also recommended that Council rescind its December 2020 resolution to not issue occupancy or any other permits until the height issues are resolved.
This staff report did not explain their reasons for this change in their recommendation, offering only that “based on advice from legal counsel, staff recommend Council direct staff to proceed with the occupancy permit process.”
Council attempts to clarify Town staff explanations
Unsurprisingly, the DVP application was rejected by Council. But, in debating the staff recommendation to rescind Council’s December 2020 resolution to refuse an occupancy permit, some surprises emerged.
Luke Sales, Town Planning Director led the conversation saying, “Council has received some feedback from the Town’s legal counsel regarding this topic and the Town’s legal counsel advises that the occupancy permit process should be handled in the typical fashion and the Town should follow the Building Bylaw in that regard. The previous direction from Council that directed staff to withhold the Occupancy Permit should no longer stand.”
Photo – Town of Qualicum Beach
Sales provided no clarity as to what the “typical fashion” meant, but the inference was clear. Somehow staff and/or Council had not followed its own procedural directives supposedly spelled out in the Town’s Building By-law.
Councillor Vander Valk sought clarification — was it that Town’s legal counsel has said that Council do not have the authority to withhold an occupancy permit because that is an operational decision belonging to staff, not a “governance” decision belonging to Council? Sales confirmed, “That is correct.”
Seeking additional clarification, Vander Valk asked, “So it’s up to the Building Inspector?” Sales replied, “That’s correct. The Building Inspector issues occupancy permits on the basis of health and safety.”
Mayor Westbroek gave voice to a rather obvious question: “If it’s not our decision, then why were we [Council] asked [by staff]? What difference does it make? We were asked [in December 2020] to do something [direct staff to withhold the occupancy permit] that we had no authority over.”
Council deferred staff’s request to rescind the 2020 Council resolution until Council receives more information about available options (fines, for example) to remedy the unapproved variance.
The Council meeting discussion is at the 1:17:30 mark of https://www.youtube.com/watch?v=fKZyB1iXV6o
Town yet to file a Response in court
This was not an inconsequential Town staff hiccup.
In the petition to the B.C. Supreme Court, Ms. Janik’s lawyer Josh Bloomenthal harshly criticizes the Town’s behaviour, alleging “Council breached the rules of procedural fairness and principles of natural justice at the meeting of April 12, 2023. …Council knowingly left an unlawful resolution in force which has continued to prevent [Ms. Janik] from occupying or insuring the Residence in order to give the Council time to obtain legal advice on enforcement measures that Council was legally permitted to take.”
Bloomenthal details his interpretation of the Town’s Building Bylaw and the Building Inspector’s role and responsibilities related to Occupancy Permits, and states “The Building Bylaw does not require an owner to demonstrate compliance with the height restrictions set out in Zoning Bylaw as a condition of obtaining an occupancy permit.
“Moreover, the Building Bylaw does not authorize or permit Council to usurp the prescribed authority of building officials over the administration and enforcement of the Building Bylaw, or to interfere in matters related to same by, inter alia, passing resolutions directing building officials to withhold occupancy from an owner who otherwise complied with the Building Bylaw, or carry out any enforcement measure that is neither authorized by or contemplated under the Building Bylaw.”
At the time of publishing this article, the Town had not yet filed a Response with the Court registry to Ms. Janik’s Petition.
Is this house too tall?
Turns out, it depends on what you use as the starting point. Back in 2015 when Krystyna Janik bought the property the bare land had a “natural grade” which may have changed, up or down, during house construction.
Sales provided no clarity as to what the “typical fashion” meant, but the inference was clear. Somehow staff and/or Council had not followed its own procedural directives supposedly spelled out in the Town’s Building By-law.
When Janik hired a surveyor in 2022, Rob Leiper from McElhanney, to do a building height analysis of her house, he had to synthesize the all-critical ground level elevation starting point.
Leiper’s report states, “Typically this is measured individually for each lot before excavation occurs to establish the limit on elevation for the structure. However, much development has occurred and direct measurement of natural grade is no longer possible. We therefore required a historic dataset that was representative of site grading at or near the date of most recent subdivision.”
That subdivision of one large lot into some 50 individual lots in a bare-land strata was completed circa 2006. Leiper was able to locate previous survey data and historical aerial images and, combined with new drone-acquired images, construct a digital 3D model to enable his findings which he asserts are “comprehensive, fair, unbiased and objective.”
Leiper concluded that this house is 0.67 metres (roughly 26 inches) over the 8.0 metre maximum height allowance for R5 zoning.
While he was at it, Leiper measured the height of each of the two houses on either side of Janik’s house. They too both slightly exceed the 8.0 metre limit.
This raises a question. What does the Town plan to do about the infractions of the other two houses?
The larger issue of staff vs Council authority and Town transparency
Apart from the potential risks and taxpayer legal expenses associated with the Janik lawsuit, this saga illustrates a larger concern. What decisions at Town Hall are the Council, or the public, to be made aware of?
Admittedly, Council occasionally gets too deep into the weeds of initiating, reviewing and endorsing so-called operational decisions, but it often does so at the request of staff or the public.
The differentiation between an operational decision and a governance directive is not cut-and-dried.
From the public’s point-of-view these Council discussions, decisions and actions are at least visible. That is not the case with a majority of staff decisions.
Despite some senior staff turnover in recent years, the secretive Town staff culture stubbornly persists.