Quis custodiet ipsos custodes?

Ron Bolin: Nov. 20, 2017

There is an old question which asks: ”If a tree falls in the forest and no one hears it, did it make a sound?”  Similarly: “If nobody is paying attention, has a misdeed been committed? Or, If a bylaw is broken and no action is taken, does it matter?

Even more direct is the question:  Quis custodiet ipsos custodes?  “Who will guard the guards themselves.”  The phrase, as it is normally quoted in Latin, comes from the Satires of Juvenal, the 1st/2nd century Roman satirist. In its modern usage the phrase has universal, timeless applications to concepts such as tyrannical governments, uncontrollably oppressive dictatorships, and police or judicial corruption and overreach… or maybe just some less obtrusive or dramatic petty versions of bureaucratic overreach..

Back in the fall of 1993, I became directly acquainted with the City of Nanaimo’s administration in a most disturbing manner.  We moved to Nanaimo in 1989 from Edmonton and Nanaimo became the new base from which I undertook consulting contracts in various locations around the world.  One day in 1993 looking out a window of our home I noticed a surveyor at work on the street just one house down from ours.  I use “down” because, as in so many areas in Nanaimo, we are perched on the side of a hill.  Out of curiosity I went down to speak to the surveyor and discovered that he was working on a plan to subdivide that lot.  We in the neighbourhood were not given any notice that a subdivision was to take place among us.  Thus began a six month ordeal in dealing with Nanaimo’s administration.

This was not to be a normal partition into two “compact” parts, but rather involved the creation of a “panhandle” lot.  Panhandle lots are those which, in order to provide an otherwise isolated parcel with a connection to a street and to utility services, is split along the road frontage with one narrow front segment and one wider with the narrow band being used to connect the “pan” part of the lot to a street front by means of a narrow “handle” which can carry utility services and/or a driveway to the lot from that street front.  This permits the subdivision of a long narrow lot into one regular and one  panhandle lot.  Not a bad plan, but as it turns out, not one allowed, at least in this case, under the City’s bylaws.  Not that I knew that at the time.

A first trip to City Hall and a discussion with one of the planners at the front desk told me that this was allowed in Nanaimo.  As the new building parcel would materially affect our property and its partial view over Departure Bay and thus its value, I began to examine Nanaimo’s bylaws concerning subdivision.  I also consulted with neighbours who would have the same problem affecting their properties.  What I found was that the conditions of the bylaw respecting subdivision were not met in this case.

On my next trip to City Hall I gave an explanation of my findings to the same Staffer.  She insisted that despite the bylaw she through the subdivision approval Officer had the authority to give the variances that would permit the subdivision to take place.

The bit now firmly in our teeth, we took the question to a Councillor who informed us that, while it was a matter for Staff, we did have the right to bring it before Council as a delegation.  At this point we discovered that unless the matter was related to an item on the Council agenda, it would have to first be presented at a meeting of the Committee of the Whole as these meetings are open to delegations from the public.  During the months which passed as we worked our way through all the hoops we had visits from the subdivision approval officer as well as the then head of Planning who tried to convince us that we should be good neighbours and that both the owner and the City were prepared to work to minimize the problem with the view by variously further bending the bylaw to “minimize” the problem by manipulating the building envelope.  Several meetings to this effect were held at the call of the City to try to convince us to give in to the developer as described in the video as reaching a compromise.  However the proposal did NOT eliminate the fundamental problem of our basic property rights and was rejected by the neighbours despite the efforts of the City to make it appear that there had been agreement.  A compromise which takes from one group of citizens and gives to a developer is NOT a compromise.  Thus the matter had to be settled by Council and come before it at its regular meeting of February 14, 1994..

Between the time when this situation started with the observation of a surveyor at work and the final Council decision some six months later, the owner of the parcel which was to be subdivided, on the word of City Staff and in line with the City’s other requirement for the subdivision, installed a 75 foot long underground storm water drainage pipe, the only such structure along the entire street, and both started and ended on that single property.  Had he jumped the gun on final approval further, he would have installed a sidewalk as well.

On February 14, 1994, after final referral from the Committee of the Whole and the planning variance committee, the matter came before Council.  It took place in the Council Chamber at the old City Hall which held about the same number of citizens during a meeting as does the current Board room in the SARC building, i.e. about 24.  Videos of the meetings at that time were taped by Shaw Cable’s community service.  I don’t remember whether they were livecast and then shown on tape for one or two subsequent days, but certainly the videos were not archived by either Shaw or the City.  The life of a video lasted only a few weeks until the tape was used again.  One had to be prompt to get a copy.  Fortunately I was and I did and still have a copy of the proceedings at that meeting.  It is interesting to see Nanaimo’s Council of the day from this vantage point 23 years later.  I hope to be able to attach a copy of that video which lasts approximately 45 minutes which will permit you to see what transpired and appreciate the stakes, the facts and the arguments.  Over the years I have seen a number of similar cases where it appears that citizen homeowners have been prepared to donate some of their amenity value to a developer without a struggle.

The agenda item of the variance and subdivision associated with 3155 King Richard Drive were introduced by Mr. Barry who kept his Staff in this meeting as in all others on a very short leash. I and my fellow objectors were first permitted to speak.  We emphasised the fact that our view amenity and thus the value of our homes were adversely impacted by the introduction of a “panhandle” lot which did not meet the requirements of the bylaw and that the transfer of value from one or more homeowners to a developer with no corresponding public value was not legitimate and further that  it was not up to us to remedy the problems caused by misinformation being supplied to the developer by City Staff or to enlarge the developer’s property value so as to make the transaction profitable.  A particularly rousing entreaty for the rights of the neighbourhood was presented by one of our group which remains valuable today as a neighbourhood rallying cry in such cases.

At the end of the approximately 45 minute session dealing with the issue, Council upheld the rights of the householders to protect their amenity value from usurpation given that the bylaw required variances and provided no value to either the neighbours affected or the general public.  Had the subdivided parcel met all the required conditions without variances the subdivision would undoubtedly been approved and there would have been no basis for objection despite the lack of notification.  The motion to approve the application was defeated with, as best I remember, only Mayor Korpan and Councillor Sherry voting for its approval.

This is a cautionary tale and a number of lessons can be learned from it.

  • Don’t take City Staff’s initial pronouncements as legal gospel… They may simply be ignorant of the bylaws involved. Do do not take their statements as necessarily being dishonest or mean, but do your own due diligence, join with others who share that problem, and if mistakes have been made, expose them and fight for your rights as it is unlikely that anyone else will do so for you.
  • The City has difficulty in dealing with neighbourhood values relative to developer values. It is up to neighbours to ensure that the City understands their position on values.
  • The City will go to great lengths to avoid being seen as having made a mistake.
  • Also learned along the way: It is very difficult to get local appraisers to give you an estimate of the value which you might lose if an action by the City might cause a loss to your property value.

I was subsequently told that the error the City made in pre-approving the work done toward the subdivision by the developer were substantial and that the costs were recovered from the City by the developer. The City tends not to be forthcoming in the matter of such payments, but they are costs to taxpayers and should not be considered just another cost of doing business.  [It should be noted that the simple subdivision of a single lot into two can virtually double the value of the original lot.  Even after covering subdivision costs a considerable sum can be left in the pocket of the developer.]

The role that video can play in interpreting what has happened at a Council or related meeting of a public body is evidenced by the video saved from destruction in this case.  Council is to be congratulated for subsequently adopting a policy of recording and retaining video records of Council and Committee of the Whole meetings by which citizens can, at a time convenient to them, see Council in action.  Viewing administration in operation is an important right and even a duty in a democracy -and even more so in a municipality where by far the most significant routine factors which touch on individual or family welfare are decided. ..Which brings us back to the beginning:  “ Quis custodiet ipsos custodies?”  Who will guard the guardians themselves?  Who will watch our backs if we do not watch them ourselves…

I would also like to acknowledge the assistance received back in 1993 from Mr. Fred Taylor, long time Council watcher and font of historical and political knowledge of Nanaimo and its administration over the years.  His help gave hope…

Note: The video of that meeting can be seen here..  Please note it has not been edited though a minor, if humorous, problem will be seen just before the decision to uphold the rights of the neighbours in the matter which resulted from a problem in moving the tape content to a DVD.  Similarly one can forego the first three minutes as they just lead up to the case of 1355 King Richard Drive.  The contents and arguments can be instructive to any neighbourhood group that is involved in an unwanted and possibly not quite kosher development.

Video of Council on Feb 14, 1994 dealing with a subdivision application on 3155 King Richard Drive in Nanaimo.