Town Planner demands homeowners resolve encroachments

The agenda for the October 28, 2020 Council meeting stated that ”the Town will not be redirecting time and resources away from other strategic priorities at this time, and therefore will not be further collaborating on the development of a viable business plan and capital funding plan for the former St. Andrews Lodge.” Readers might ask the question – What urgent “strategic priorities” are consuming so much of the Town Planner’s time that he had to blow off the community’s request to help preserve the Town’s most iconic heritage site building?

The proposed annual fee could run as high as $6,000. The Town acknowledges not needing use of the land right now, and perhaps never.

Well, it turns out that Town Planner Luke Sales seems to be spending a lot of time lately hassling dozens of Town property owners about supposedly encroaching on Town land. In researching this story, we found there is no justification that comes anywhere close to important, let alone time-sensitive or urgent or “strategic.”

A growing number of homeowners alerted Second Opinion QB to recent communications from and with Mr. Sales. The homeowners express a range of reactions, from irritation to fear. Some are pissed off, some are intimidated, while others are stressed with anxiety. For some of these homeowners, the thousands of dollars the Town is suddenly demanding on short notice is no small matter.

This may be the first of a series of articles if the Town is pressuring homeowners in other areas but, for now, let’s focus on one neighbourhood at a time, starting with the eastern edge of Chartwell. This area, once part of the Regional District of Nanaimo (RDN), was developed in the 90s, and then “acquired” by the Town of Qualicum Beach in 2004.

In early October 2020, a number of homeowners in Chartwell discovered a letter from the Town of Qualicum Beach, signed by Luke Sales, Director of Planning, stuck under their front door mat.

The gist of the letters is a terse ultimatum – either remove any encroachment on Town land, or start paying an annual occupation / nuisance fee. And, “Please respond by November 3, 2020 as to how you intend to resolve these encroachments.”

These official letters — which ought to have been delivered by registered mail — were not even individually addressed to the specific named owner(s) of each property. In one instance, a single letter was directed to the owners of four properties, as if they were collectively responsible for meeting the obligations of all four property owners. Delivering official, time-sensitive, private financial correspondence in this way is irresponsible and unprofessional. If the current resident of a home happens to be a rental tenant, the tenant would be under no obligation to do anything but toss Luke Sale’s letter into the garbage. Aside from legalities, communicating with residents in this manner is silly and impractical. Many people don’t even bother to pick up junk mail stuck under the door mat, especially while an election is underway.

So, what’s all the fuss about?

There is an undeveloped road allowance, owned by the Town, in line with Yambury Road that runs off the south side of Highway 19A into Chartwell. Eight properties on York Place and Dover Court back onto this right-of-way which has a well trodden, meandering path frequented by Chartwell walkers, and which is flanked by native trees, shrubs and blackberries. Most of the adjacent properties have a wooden privacy fence along the back of their property. Some of these fences were constructed long before the Town assumed responsibility for the Chartwell neighbourhood. The Town asserts that several of the fences and a couple of small sheds are on municipal land.

The Town acknowledges a) not needing use of the land right now, and perhaps never, and b) none of the encroachments are hindering the Town’s ability to provide required services.

The proposed annual fee could run as high as $6,000, depending on the area of ‘occupied’ Town land, and increased/decreased annually based on assessed land value. Not a trivial amount, especially for young families who may have lost their sources of income during COVID-19, or for seniors on fixed income (often land rich but cash poor).

It is to be hoped that all parties will find a harmonious, respectful agreement that clearly asserts the Town’s right to the land, but without inconvenience and penalty to the current property owners. Otherwise the increasing perception of a growing epidemic of Town Hall insensitivity and bullying will continue.

None of the property owners we talked to in preparing this story are in any way attempting to stake a claim or otherwise assert ownership of the strip of Town land that they now are using, any more so than the thousands of QB residents who have front yard lawns and flowers and shrubs and parking beyond the technical property line at their street.

The first fence on Dover Court was built in the 90s at the back of a property owned by the main developer of the Chartwell area. The RDN, owner of the undeveloped Yambury lane, took no action over the next decade to have the fence removed. Later, additional fences were constructed roughly in line with the initial one.

Troubling questions not yet answered by the Town

Why did the Town accept ownership of the Yambury strip of land in 2005 with pre-existing structures supposedly encroaching on the land? Why did the Town not insist that the seller (RDN) resolve the encroachments before accepting transfer of title? Not doing so seems to imply agreement to allow the fenced properties an indefinite easement on the Yambury strip.

In the 15 years since the Chartwell community was annexed into the Town of Qualicum Beach, has the Town’s Building Inspector ever previously put any of the owners of these properties on notice of an encroachment by-law infraction?

Some of the ‘offending’ properties, with their pre-existing fences, have been re-sold as recently as two years ago. At the time of property title transfer, the title searches were apparently clean. If the Town was offended by a fence or shed, and had not been successful in convincing the previous owner to remove the offending structure, why hadn’t the Town filed some form of restrictive lien against the property title long before the property was re-sold?

Town offers few options

Luke Sales has stated that his motivation is not just to increase Town revenues. That makes sense — the Town seems to have millions of spare change to spend on frivolous, non-essential and unwanted projects like a roundabout at Memorial Avenue and Hwy 19A.

Except for backing off on its initial November 3rd deadline (now wanting resolution by December 31) and offering a graduated increase in fees (which does not satisfy the property owners), the Town has demonstrated remarkably little flexibility.

To avoid alarming and bullying homeowners, rather than levy sizeable fees / penalties payable every year by current owners who inherited the problem from previous owners, the Town could consider some creative options like the following:

a) For any owner who finds themselves owing an unexpected Town levy, either one-time or recurring, and is eligible for the Property Tax Deferment Program, the Town could offer to add the levy to the owner’s Property Tax, thus enabling the property owner to postpone payment indefinitely. Yes, interest charges would apply, BUT at an incredibly low bank prime rate LESS 2.0%, which currently enables eligible home owners to borrow at a rate of 0.45%. The accumulated balance accruing to the Town would get settled when the property is sold by the owner(s) or their estate.

b) Another option might be to place a standing easement on the portion of Town land occupied by the property owner, for the current property owner’s benefit only, with a corresponding reciprocal restrictive lien on the owner’s property — both to be removed at the time of re-sale. This would enable resolution of the encroachment to be deferred and resolved either when the property changes ownership or when the Town has a non-avoidable need to clear and re-occupy the encroachment area (which the Town has stated they do not have at this time).

A judicial arbiter might propose other recommendations as well.

No harm, no foul – a principle of fairness to both parties

Perhaps the Town could take some inspiration from a long-standing officiating practice that originated in professional basketball in the 1950s. In basketball, if a player commits a transgression against the rules that doesn’t have an effect on the outcome of the game, the referee should not call a foul against that player. The term was first described in the Hartford Courant newspaper in 1956. Within ten years “no harm, no foul” was being applied to situations outside the sport of basketball.

There may well be locations in Town where encroachments do have an impact on the ‘game’. Perhaps interfering with the safe use of Hwy 19A by pedestrians at the waterfront is an example. But Dover Court is most definitely not one of those locations.

It is to be hoped that all parties will find a harmonious, respectful agreement that clearly asserts the Town’s right to the land, but without inconvenience and penalty to the current property owners. Otherwise the increasing perception of a growing epidemic of Town Hall insensitivity and bullying will continue to spread.

Town now asking real estate agents to do the Town’s work?

The October 28, 2020 Town Council Regular Meeting Agenda includes an interesting resolution brought forward for adoption from a special in camera Council meeting held on October 21, 2020: “Council instructs staff to communicate with local realtors and the Association of BC Realtors outlining the areas of encroachments in [sic] the Town boundaries to notify perspective [sic] purchases [sic] before properties are sold.”

Attempting to deputize realtors as de facto Town by-law enforcers? And if the realtors decline to do the Town’s work…? This is bizarre, ineffectual and probably unenforceable.

If you are an owner of any of the hundreds of QB properties that are rumoured to be encroaching on Town land, we’d like to hear from you. Meanwhile we will ask the Town for a list of properties they believe encroach on Town land.