Pier Pressure at BIM, BIIA et al
An Open Letter to Bowen Island Municipal Council and the Bowen Island Improvement Association by Dr. Richard Wiefelspuett
July 12, 2013
Richard Wiefelspuett is a naval architect with relevant experience in offshore and structural engineering. In this letter he questions assertions made in a recent circular from the Bowen Island Improvement Association about legal advice on the subject of docks at Cape Roger Curtis.
The purpose of this open letter is to enrich the discussion and provide additional information on the planned docks on Cape Roger Curtis and to add some new perspectives on the issues raised. It also posts a number of open questions and concerns related to the conduct and process of Bowen Island Municipality (BIM) in this context. Ultimately the letter is intended to achieve a suspension of all construction activities on the foreshore of Cape Roger Curtis.
This letter demonstrates that many aspects of the review and approval process related to the planned docks on Cape Roger Curtis have not been sufficiently addressed to provide a substantiated basis for a decision on the planned docks. Throughout the letter I make reference to Bowen Island Municipality Council meetings on record and the recent Bowen Island Improvement Association (BIIA) mailer (Bud Long) and the copy of Tim Rhodes’ blog reproduced therein. In the following I do not differentiate between the comments made by Tim Rhodes or Bud Long. Their ideas and intentions appear well aligned.
Why does BIIA bother sending out a 4-page mailer to each and every mailbox on Bowen Island without telling anything at all that is not already known? The mailer presented no new information, only a rehashing of the stale lament that “…we could have had it all…” if it hadn’t been for the previous Council’s omissions or short-comings. “Get over it!” to quote Jack Adelaar (with reference to the docks, BIM Council Meeting, 6 May 2013). It is irrelevant what previous Councils did or didn’t do. It is 2013 and this Council (http://www.bimbc.ca/council_members) is in charge now. This is your watch! You represent the people of Bowen Island. You have to live up to your claims of doing what is best for Bowen Island. This is your mandate and it is you who will be measured against it, not any previous Council members. Get with it!
2) Legal advice
Ever since the first concrete foundations have been cast on the pristine foreshore rock formations of Cape Roger Curtis at lot #13, on your watch, BIM Council has presented itself in back-paddling mode and without any teeth, except maybe for biting its own constituency. The BIIA mailer is just another one of these “we had no other choice” excuses without explaining in any detail how the present Council arrived at this defeatist conclusion. The mailer would have been worth its money if it provided at least some transparency related to records in the custody or under the control of the Bowen Island Municipality, individual Council members, and contract planners with regards to the legal advice sought and received re. the application for and construction of docks on Cape Roger Curtis, including the date(s) legal advice was requested, individuals consulted, questions asked, answers received, fees paid, and related information. But none of that is shared.
Conversely, the legal advice provided by the Stop-the-Docks Coalition has been shared publicly with Council and published in the media. On this basis we all know where it comes from, we know that it was provided by an established law firm, it is traceable and well documented and most importantly we learn that according to this advice BIM Council did have another choice.
It is disturbing that the independent received legal opinion obtained by the Coalition reaches a conclusion completely contrary to the legal advice cited repeatedly by Bowen Island Municipality and its Council members, as both groups should have similar interests and outcomes in mind for Bowen Island.
But, for reasons unexplained, the general public is excluded from BIM’s legal advice. The BIIA mailer simply repeats what is already on record in a video-taped Council meeting (6 May 2013). The same general statements were reiterated by a number of Council members during the meeting (http://stopthedocks.ca/not-on-the-agenda/). While the video is revealing in its entirety for both the tone and content, the following timeline helps to locate statements made during the session relevant to BIM’s legal advice:
|Councillor Wolfgang Duntz asks: “What makes you believe that we did not have legal advice on this matter?”|
|Councillor Wolfgang Duntz: “…Council has done everything what they could within legal bounds following legal advice…..and you will understand that Council is well advised to listen to the legal advice, which we have done.”|
|Councillor Wolfgang Duntz: “…I’m not a lawyer, I’m not in court, we have legal advice.”|
|Mayor Jack Adelaar: “…we have limited jurisdiction over what we can approve and what we can’t approve.”|
|Mayor Jack Adelaar: “Listen Melissa, I understand that you guys are really concerned about the docks. We have done everything that we can within our power, within our jurisdiction.”|
|Councillor Cro Lucas: “We haven’t said a lot because all issues related to Cape Roger Curtis were dealt with in closed meetings…because we were dictated to have them in close meetings…and because of that there are issues regarding Cape Roger Curtis that we can’t discuss….”|
|Councillor Tim Rhodes: ”… the legal opinions we have had don’t support what you (Melissa Harrison) are saying. We’ve been acting under legal advice.”|
|Mayor Jack Adelaar: “And we want to be very careful…But if we can’t legally do it …”|
|Councillor Wolfgang Duntz: “…We have obtained legal advice and we …followed legal advice.”|
|Councillor Tim Rhodes: ”That’s an interpretation of the law that you (Melissa Harrison) acquired and not the interpretation of the law that we received.”|
|Mayor Jack Adelaar: “We have already dealt with the issue…we’ve got legal opinions about all the things that we shouldn’t do…I’m sorry, either we go with our legal counsel or we don’t go with her.”|
Almost two months have passed and there is still isn’t any more specific information and, for that reason, there is less and less confidence in the quality of the legal advice BIM is referring to. It would have been very helpful if the BIIA flyer had taken this opportunity to address this confusion by providing transparent and detailed information, helping to clarify the contradicting legal positions.
Instead the mailer reiterates that, according to the legal advice received, BIM would have drifted without delay into a prohibitively expensive law suit destroying the fiscal health of the Municipality for generations to come. The mailer goes on to praise the BIM Council for its prudent avoidance of such an elusive legal battle. Further, it reiterates that the avoidance of legal action is in the public interest. Agreed! However, not in principle, not always, and not at any cost. The option for legal action should always be maintained as a last resort after all other available means of conflict resolution have failed. There are many steps between an initial disagreement caused by conflicting positions and a call to order in the court room. There are a number of ways to take a stand, to declare a position and to defend a valuable interest and to build support for a position by involving the public, by reaching out to other government agencies, by lobbying with neighboring communities, involving mediators, creating unwanted publicity and so on. But before any of these options were as much as explored, before the public was consulted, “The case is closed!”, to quote Jack Adelaar again (6 May 2013). BIM threw in the towel after a closed door session. And the concerned public is expected to fall in line and to simply accept this kind of inappropriate conduct. Well, that’s not going to happen!
Notwithstanding any of the above, the BIIA mailer continues to explain that “Unfortunately the municipality will now have to go to the expense of having our lawyer review and comment on Stop the Docks Coalition’s lawyer’s legal opinion…”. Why? Don’t you trust your own lawyer’s legal opinion? Or is it at all possible that that “legal opinion” relied on by BIM Council was nothing but unpaid, informal, off-the-cuff advice casually offered over a coffee?
I find all of this is dubious. As a resident of Bowen Island and on the basis of the Freedom of Information and Protection of Privacy Act [RSBC 1996] CHAPTER 165, I have requested access to and full disclosure of all information and documentation related to the legal advice sought by Bowen Island Municipality/Council. This was denied by BIM quoting solicitor-client privilege. I have therefore filed an appeal with the Office of the Information and Privacy Commissioner in Victoria. A response is pending. I’ll keep you posted.
3) What is this all about?
The BIIA appears to be confused about the underlying causes of the Stop-the-Docks campaign and the motivation of the 1200 + petitioners to lend support to the objectives of this Coalition. Or is it perhaps your intention to confuse the “silent majority” of the island that you allege is on your side? For the avoidance of any doubt: This campaign is not about the issue of privately owned, beach front properties, foreshore leases and private docks. This campaign is about the protection of the public good, a public good that is both non-excludable and non-rivalrous in that individuals cannot be effectively excluded from use and where use by one individual does not reduce availability to others.
Under threat is the public good of Cape Roger Curtis’ coast line and the entire foreshore area spanning across all waterfront properties of the Cape, including the untouched nature of this coastal range, the undisturbed marine flora and fauna, the unobstructed panoramic views, the drift wood, the sunsets, the intact beaches, the unimpeded access, the unique atmosphere, the tidal pools, the historic and spiritual dimension. Nowhere is the value of this public good better described than on the developers’ own website: “A timeless island property…the Cape on Bowen is a very rare oceanfront property. Its beaches, trails, shorelines, and dense woods have been virtually untouched for more than 50 years. Best of all, it is only 20 minutes’ sail away from Vancouver.…sites are exceptionally private, and enjoy transcendent views of the ocean and neighbouring islands…there is truly nothing like it.” There is truly nothing like it on Bowen Island and in the entire Howe Sound. This answers the question, why the planned docks on Cape Roger Curtis attract so much more attention than other areas on Bowen Island. There is truly nothing left like Cape Roger Curtis and the intelligent, sensitive and informed people who have joined the campaign against the docks understand this. The value of this public good is under threat by the planned developments of docks: 4 approved and 2 under application with, potentially, another 12 to come. These docks – whether they’ll be 60m, 80m, 100m, 120m or longer – individually and jointly will destroy these values. An illustration of the planned dock in front of lot #13 illustrates this point clearly:
Note that the dimensions of the dock in the above illustration have been adjusted to reflect the necessary design revisions after the owners altered their plan to install floating breakwaters (Ah yes, the floating breakwaters – I will address this grand idea further down in my letter). For now, imagine 4, 6 or the entire 18 oceanfront properties disfigured by such monstrosities and tell me, how an impervious development like this can be defended under the Charter of an association (BIIA) that carries the mandate of IMPROVEMENT in its own name? And if you are not inclined to believe this illustration or if you can’t envision the impact of 4, 6 or 18 of such impositions on the public good of Cape Roger Curtis, I urge you to visit the foreshore of lot #13 and see for yourself the impact of concrete blocks poured on pristine rock formations killing mussels and algae in the process, poisoning the marine environment during the curing phase and creating a massive and insensitive and unwanted permanent footprint of destruction on this public good. Go and sense the life of the beach, on the rocks and in the tide pools. Touch the ground and feel the warmth, the salt, the energy of this special and sensitive environment – and then look at the concrete foundations, feel the hostile surface alien to this environment, scale the extent from shore to sea. I am sure you will concur that this is nothing short of a crime against nature and a violation of the valid interests of the general public.
And while you are out there, please take special note of the four concrete blocks poured close to the high water line in the excessively wide formation originally designed to carry a beamy sun deck desired by the owner of lot #13. What do you make of that? The desired sun deck has been disallowed in the approval process as it violates best practices! How do you then explain the existence of a foundation for a sundeck that is not approved? The revised plan – without the sundeck – still shows the exact footprint and steel structure as before. Can you justify the whys and hows of the formation of these 4 blocks? Can you explain why you permit the completely unnecessary steel structures to introduce additional visual obstructions and an ugly skeleton without apparent purpose on this beach? Can you defend your lack of action regarding a removal of the concrete foundations outside the line of the approved wharf? Or do we have to brace ourselves for another mocking of our BIM Council, when after some time the planks for an unapproved sundeck will be readily bolted down on the designed and built-for-purpose steel structures?
One could not get away with building as much as a carport on Bowen Island without a permit. How then is it possible that the owner of lot #13 goes ahead prior to plan reviews and formal approvals, is discovered to be in contravention of their license and is not then required to rectify the works? Why does BIM and the Province not hold the owner accountable? The result of this lack of any corrective action is manifested in the concrete evidence of the unapproved sundeck foundations now marring the foreshore of Cape Roger Curtis like bunker relics on the beaches of Point Grey.
4) The Floating Breakwaters
I am a naval architect with relevant experience in offshore and structural engineering. I understand why things float and why they break apart under the actions of wind and waves. In my current role as Head of BCIT’s Marine Campus I network daily with the maritime community and work with experienced master mariners who sailed not only the oceans of the world but are also very familiar with the regional waters of Howe Sound and Cape Roger Curtis.
Within this extensive resource of maritime expertise, everyone I have spoken to shakes his or her head in disbelief at the planned location of the docks at Cape Roger Curtis. Even BIM Councillors have questioned the suitability of the intended locations for the docks. Like it or not, docks are built in bays and inlets and along sheltered parts of a coastline for good reasons. Plain and simple, the planned docks on the Cape Roger Curtis are a bad idea.
Even the hopeful dock owners understand this or have been so informed by their contractors. And this is exactly the reason why all first submissions of the dock plans for approval on the Cape feature substantial structures to act as floating breakwaters. This was true for the first four applications and is still the case for the pending applications for lot #1 and #14.
The recent BIIA mailer delivered to all Bowen residents attempts to argue that the Stop the Docks Coalition exaggerated the overall size of the docks and claims that the revised docks are “much smaller” because the floating breakwaters have been omitted. Let’s remember that the original dimensions of the docks cited by the Coalition were exactly as presented in the plans submitted with the first dock applications.
Further it is worth noting that the floating breakwaters were not removed from the plans as a voluntary act by the dock hopefuls or as the result of a targeted action by BIM Council. Docks without breakwaters are deemed Minor Works Orders. However all dock applications that propose floating breakwaters will be reviewed by Transport Canada (TC) under the Navigable Waters Protection Program (NWPP). This approval process falls under federal jurisdiction and is more involved than the approval process for a Minor Works Order. In addition a federal process may trigger an extensive review by the Canadian Environmental Assessment Agency (CEAA). A close look at the proposed floating breakwaters in the original four dock applications and also in the new applications for the docks at lot # 1 and #14 renders the outcome of a federal review somewhat uncertain. Obviously the designed docks and breakwaters impede access to and from the sea and to the adjacent beaches and lots. They also force small boats to navigate further offshore.
On this basis it will be interesting to watch if the new dock designs for lot#1 and #14 will “evolve” in a similar way as the previous dock designs and their plans will be redrawn and resubmitted without floating breakwaters to dodge the federal review process.
Without doubt, docks on the Cape without floating breakwaters are in a precarious and exposed position. Pointing straight into the Strait of Georgia the floats of the docks become the first point of contact for winds, waves, swells, and currents during all seasons. The floats will respond to waves and swells with extensive motions and so will the boats that attempt to dock against the floats. The sway, heave, and pitch amplitudes and frequency for boat and float are different and the hydrodynamic interaction between boats and floats are complex. In addition the influence of wind direction and currents will render the relative motions between float and boat unpredictable. It is safe to assume that for most of the year the docks cannot be used safely.
Why would anybody in their right mind commence the construction of a dock in such circumstances and not knowing for certain that a federal review at a later stage would grant the floating breakwaters? Since the docks without floating breakwaters cannot be used for all intended purposes of a private dock, why sanction and facilitate their construction?
If permitted they will destroy the irreplaceable Cape Roger Curtis and create the equivalent of a Potemkin village, a sham with docks built to impress and without any true functionality.
5) Best Management Practices
For starters, Provincial and Federal Best Management Practices and guidelines for dock construction are applicable. Compliance with these standards is required.
According to the DFO definition: “Best Management Practice means a recommended technique that has been demonstrated to be an effective and practical means of preventing or limiting harmful impacts to the environment. Best Management Practices include any program, technology, process, siting criteria, operating method, measure, or device that controls, prevents, removes, or reduces pollution. Best Practice means a method or technique that should be followed to ensure the standards are met and impacts to riparian and aquatic habitats are mitigated”.
More specifically BC’s Land Use Operational Policy for Private Moorages defines: “… that Crown land is a public asset and the Province has a responsibility to ensure it is managed to maximize and sustain the flow of economic, social and environmental benefits to British Columbians, now and in the future. Crown land is available for the use, benefit and enjoyment of all British Columbians”.
The Cape Roger Curtis docks are planned for installation on Crown land. With the above definitions this pitches the interests of private property owners against the interests of the multi-stakeholder community of Cape Roger Curtis. Stakeholders include residents, tourists, families, children, boaters, schools, science, eelgrass meadows, the entire marine flora and fauna, to name a few. Best Management Practices and Best Practices are the tools provided by the Authorities to mitigate potential conflicts of interest between the owners and other stakeholders. On this basis it is useful to evaluate the implementation of Best Management Practices in the case of the planned docks on Cape Roger Curtis. The following table illustrates how some of the critical DOs and DON’Ts mandatory for private docks on Crown land have been intentionally ignored in the submitted plans.
Best Management Practice / Best Practice For Private Docks
Evaluation against the Plans for Docks
|DON’T… interfere with navigation.||If the docks proceed as planned they will impede the visibility of the Cape Roger Curtis lighthouse and create blind spots for boaters and tugs for a range of approaches!
|DON’T… unduly impede public access along foreshore.||The uniquely shallow foreshore of Cape Roger Curtis requires the docks to be extremely high to satisfy this ruling; ca. 6m above the beach at low tide!|
|DON’T… use structures for non-moorage purposes. Non-moorage uses are prohibited. These uses include beach houses, storage sheds, patios, sun decks, retaining walls and hot tubs.||The sundeck at lot #13 is a good example of how dock owners try to undermine the Best Practices for their own interests.|
|DO… construct only one private moorage facility per property. If it is located in a marine environment ensure that it is limited to a single dock which consists of an elevated pier leading to a ramp and one moorage float only.||The planning for floating breakwaters and sundecks by the dock hopefuls, contrary to this principle, demonstrates how Best Practices are being ignored in favor of private interests.|
|DO… ensure dock structures are not grounded at low water/low tide. All docks must be on pilings/suspended or floating at all times.||There is a requirement for a minimum water depth of 1.50 m below each float at low tide to protect the marine flora and fauna. In at least one case of the dock plans, it appears that this requirement is not met over the full length of the float. This violation requires additional analysis.
|DO… work in the water outside of spawning and nursery periods. Consult local work timing windows, available through the Ministry of Environment.||Who will monitor these requirements for Cape Roger Curtis?|
|DO… remain sensitive to views, impacts on neighbors, and orientation to neighboring docks.||All docks planned for Cape Roger Curtis clearly and unmistakably violate this significant requirement!|
It is easy to see that a substantial administrative framework exists to protect the public good and to adequately address the rights of a multi-stakeholder community against the interests of private property owners. It is a myth that upland owners have unlimited rights when it comes to the development of Crown land. It is a matter of choice and personal inclination for BIM Council to stand up and assert the valid interests of a wider community, or to close an eye or two and do nothing. The available Best Management Practices / Best Practices provide substantial leverage to support and justify a stop work order and to trigger an extensive review of the plan approval process related to the docks on Cape Roger Curtis.
The Islands Trust Fund has advised BIM that they will conduct an independent “Eelgrass Mapping” project in the Bowen Island Municipality. This will take place during the months of August and September on the Bowen Island coast. The eelgrass meadows of Howe Sound and Bowen Island are of significant importance for the health and balance of the entire ecosystem. Clearly all building activities in foreshore areas must be halted until this project is concluded and subsequently reviewed to ensure full protection of the eelgrass meadows.
- It is not acceptable that the current BIM Council continues to hide behind the shortcomings and omissions of previous Councils to justify its own lack of decisive action and its ready acceptance of undue demands of the Cape on Bowen developers and landowners, instead of considering and standing up for the public’s valid interests.
- The legal position claimed by BIM Council appears unfounded. There is no evidence so far – only the Council’s word – that any substantive legal advice was sought with the objective to protect the public good and to give consideration to the interests of many in Crown land preservation vs. sacrificing it to the interests of a few private owners.
- The Stop-the-Docks campaign represents a relevant and growing coalition that is motivated by the vision of protecting the public good and maintaining the Crown land of Cape Roger Curtis in its natural state in the interest of present and future public stakeholders.
- The docks on Cape Roger Curtis cannot be used without Floating Breakwaters. The fact that the landowners press forward with the construction of useless docks unveils their project as a sham, built to impress but without any functionality.
- Best Management Practices and Best Practices are being violated and ignored by the plans for the docks on Cape Roger Curtis. BIM Council has remained passive despite the unapproved construction activities of the dock at lot#13. Since the full extent of eelgrass meadows of Bowen Island will only be mapped during the fall, all construction activities in the foreshore must be suspended without delay.
- In view of the above, the statement in the BIIA mailer that “(the present) Council did not have effective tools available to address the water lease applications at CRC without putting the municipality at serious risk” is absurd.
BIM Council is well advised to reconsider its position on the approval process for the 4 docks on Cape Roger Curtis and all further dock applications. Legal advice must be sought with the objective to review the approved dock applications against the Best Management Practices, Best Practices and in defense of the Public Good of Cape Roger Curtis Crown land. All construction activities on the Cape Roger Curtis foreshore must be suspended without delay and until further notice before more irreparable damage is done.
Dr. Richard Wiefelspuett