Diver Lake riparian bylaws broken but fines waived

Wetland areas in Nanaimo are under real threat:

Now, at the end of Diver Lake, site preparation has begun for a commercial building at 2569 Kenworth Road.  The developer was fined $20,000 for removing 19 trees and disturbing the riparian area without a permit.

2569 Kenworth Road:
The developer for 2569 Kenworth Road asked for Council to authorize a development permit for a 3 level, light industrial/office facility with four variances, approved by Council:

  • reduce the watercourse leave strip to 5.5m
  • reduce the required front yard setback to 0m
  • increase the maximum allowable building height to 18.44m
  • reduce the required number of loading spaces to 2

At the last council meeting on June 9th, Councillor McKay put forward a motion that the fines of $20,000 be reduced to $0. Here is how it went down:

Councillor Kipp added an amendment to the motion, to re-assess the trees that were removed and the affected riparian area.

Below, outlined in yellow is the property under development at the end of Kenworth Road. 80% of the lot is wetlands.

Nanaimo Diver Lake Development on Kenworth Road
Nanaimo Diver Lake Development on Kenworth Road

Discussion occurred:
Swabey: …We should be consistent.  If we fined someone in Departure Bay for taking down trees before a building permit was issued… so maybe we should refund them?

Kipp: I said do a reassessment, I think we run inconsistent but that’s okay…

Ruttan: What motion are we dealing with here? Should we not deal with this in a separate motion…?

Swabey: Absolutely.

Bestwick: …The design panel approved this project ….This is the second time we have had an applicant remove trees before receiving a development permit…On both occasions they indicated that they were given verbal permission, but don’t have a written permit… Hopefully we can clean some of our communications so we don’t find ourselves in this situation…these trees are coming down anyways… it seems a bit heavy handed…

Brennan: …This is the first application that uses the no net loss principal…followed the green design….Compliments to developer and staff…

Ruttan: …This is an important project for Nanaimo; we are trying to bring hi-tech business to Nanaimo…

Johnstone: I support this project…

Pattje: I look forward to the finished project…

Then there were comments on Councillor Mackay’s motion to waive the developer’s fines:

Pattje: I heard from the application that the fine was $10,000? What is it?

Johnstone: I won’t be supporting [waiving the fines for the developer] I believe staff acted on Council’s direction and we have riparian rules… I think it is setting precedence and I don’t think we should remove the fine.

Kipp: I talked to the proponent and they said they talked to one department in the city and they went through the development review and were told ‘oh, yeah, go ahead and prepare your property’ and then…the Bylaw Department enforcement [levied] a fine…This is typical to the one we heard before like, the one at the town centre. They had the go ahead but it wasn’t [in writing]…Is there an appeal process?

Swabey: You are witnessing it.

Kipp: … I am asking that we have staff review this [complaint] and find what’s going on where the trees were removed…

Ruttan: …I have a problem making a decision that is knee jerk…

Greves: We shouldn’t be making motions on the fly, it comes right out of the blue…I do my homework, I am reading the agenda and now it is a whole different matter…I have been staff and if council started to second guess me as staff, my morale and that of the staff that I work with, would go right down the tubes. Staff is well aware of the riparian rights and trees and I don’t see any developer in front of us asking for this [to waive the fines]. I don’t know where this came from…This is out of the blue… I don’t see any reason for this whatsoever, we should just carry on…and I am totally not in favour of this motion.

Kipp: ..This is where we bring our information forward…We bring issues to the table…This is a debate that we need to have…We have had a couple of removals in the past that have caused us trouble…

Ruttan: …What is the motion?…

Bestwick: …When I think of the location…we know the trees are coming down anyways…

Brennan: This is not an appeal process…there is no developer here before us telling us that they think that the [fines] are unfair and improperly assessed…All we are hearing is hearsay… it is unfair…we don’t have all the facts…If I were the developer I would come to council and stand at that podium and address the issue…Developers are not a timid bunch… We are making a mockery of this [bylaw] process…I think we would be setting a very strange precedent by calling this [an appeal process]. What is going on here?… This is not an appeal process…

The vote on waiving the developers fine was approved.  Opposed: Johnstone, Brennan and Greves. In favour: McKay, Kipp, Bestwick, Pattje, and Mayor Ruttan.   Anderson was absent from the meeting.

Dedicate park land or provide cash
Another motion that passed the same evening concerned future park planning.  Staff will no longer be required to bring a Cash-in-lieu of Parkland Dedication Report for Council’s consideration. From now on, City staff will make this decision themselves.

If an owner plans to subdivide a lot into more than 3 lots, then they have to either dedicate parkland or provide cash-in-lieu equivalent.

Is there not any  planning for future parks and saving riparian areas? Where is all the money that is collected for future parks going—into a general fund?

The small parks at Diver Lake cover the location of old mine shafts.