Father and son are suing the Town of Gibsons for alleged abuse of office over development permit in Bay area
By Margot Grant
In a case with some farcical turns, building contractor David Spencer and his father Gary have taken the Town of Gibsons, chief administrative officer Emanuel Machado, director of engineering Dave Newman and former director of planning Andre Boel to court over a refusal to issue a development permit.
In a first response, the town, Machado, Newman and Boel categorically deny all allegations of acting illegally, making threats and misusing taxpayer money, as the Spencers claim, and, in fact, deny any knowledge of anything the Spencers claim. A more detailed response has not yet been submitted.
At the heart of the dispute is whether Goosebird Creek is a creek or a man-made ditch.
It started in 2013, when David Spencer wanted to build a 1,200-square-foot rental home on a vacant 20-meter-by-40-meter lot he owns at 22 Burns Road. It would likely become a retirement home for Gary.
The lot is bordered on both sides and across the street by houses that have been there for over forty years; at the back is a small park. A watercourse enters the property via an adjacent lot where it has been channeled through a concrete channel and then runs diagonally through Spencer’s lot, and subsequently into the first of two other culverts off his property.
The total watercourse is about 600 meters long, has nine culverts with an average length of 12 meters and 40 smaller culverts.
According to the Spencers, the watercourse is part of a drainage ditch the Town of Gibsons excavated in 1971 and 1972 when sewer lines were constructed and ditches were needed to drain a marsh in the area. But at points where the watercourse crosses underneath roads, the Town of Gibsons has placed signs that say “Goosebird Creek”. Fish have never been observed in the watercourse, the claim states.
In December 2013, Gary made arrangements to meet Jeffrey Paleczny, assistant planner for the Town of Gibsons, to determine the requirements for a development permit. Among other things, he wanted to change the orientation of the watercourse from an oblique angle to a right-angle to make room for the house.
However, Paleczny was not available for the meeting; director of engineering Dave Newman told Spencer he would take over the application. This was unusual, as development permits are routinely handled by the town’s planning department, the claim says.
Newman told Spencer he wanted the watercourse rerouted within Arrowhead Park so that it would not pass through the existing concrete ditch on neighbouring lot 21 and Spencer would have to pay the expense of this “bypass project,” estimated at approximately $12,000.
Spencer subsequently discovered that the bypass project was not approved by the Town of Gibsons, that no neighbours had given consent and that there was no budget, the claim states: “In fact, most if not all of the owners of properties through which the watercourse passes do not support Newman’s bypass project as there is no measurable benefit to their properties or the Town of Gibsons.”
In short, there was no requirement for Spencer to participate in the bypass project, the claim states.
Spencer applied to the Ministry of Forests, Land, and Natural Resource Operations (MFLNRO) for a Water Act permit, which took a year to obtain, although a municipal permit could have been issued in weeks, the claim notes. The ministry approved Spencer’s proposal, which included covered retaining walls.
In January 2015, Newman advised Spencer that a significant amount of additional work was needed for the bypass project, estimated at $40,000 to $50,000, which Spencer would have to pay in order to obtain a development permit.
In March 2015, Spencer applied to the town for the permit without committing to pay the required amount. He hired biologist Paul van Poppelen, who provided a professional opinion that the riparian-area regulations had been fulfilled, that there were no fish in the watercourse and that it would not be harmful to install another culvert.
But Spencer did not get the permit. Instead, the claim states that on July 31, 2015, former director of planning Andre Boel told him in an email that the property would be charged with a natural-state covenant if he did not comply with Newman’s requirements for the bypass project, or that a right-of-way — expropriation without compensation — would be established.
A month later, Newman reiterated that he would require that Spencer register a natural-state covenant against title, restricting Spencer’s access to the property if he did not comply.
Spencer’s claim says the town has no natural-state covenants and in any case, one could not be registered, as the watercourse is not a creek but a man-made drainage ditch.
In November 2015, things became more complicated. Boel sent Spencer a letter saying a culvert would not be acceptable, —although the 600-meter watercourse already has 49 culverts —because a culvert would impact wildlife habitat and corridors, and that the watercourse would have to be open.
In January 2016, chief administrative officer Emanuel Machado sent Spencer a letter that “the proposed culvert does not seem compatible with the town’s intent of maintaining and improving the environmental conditions of the designated areas.”
Van Poppelen sent Machado two letters on February 15 and February 16, charging that the riparian-area regulation is strictly limited to fish habitat and in April, Spencer cited the Local Government Act and told Machado that if the town sought to address wildlife, it would need guidelines. Boel replied by sending Spencer two letters emphasizing what he had said in earlier letters.
Spencer complained to Machado that Boel was not qualified to express an opinion about environmental matters and Van Poppelen re-stated his earlier viewpoints, including the claim that Goosebird Creek is a simple drainage ditch.
On June 19, 2016, Van Poppelen wrote Spencer that the Town of Gibsons had budgeted $300,000 for enhancement of fish habitat in Goosebird Creek, which Spencer claims would be a misuse of taxpayer money that would have major implications for property owners with respect to setbacks.
Spencer says that although he sought a hearing before town council in June 2016, the town delayed it until November 1, when council refused to instruct staff to issue a development permit if Spencer did not consent to a two-meter deep, 16-meter long open ditch on the property.
Spencer said he was concerned that his grandchildren would fall in, and offered to install retaining walls covered with a grate so that sunlight could reach the water.
In April 2017, Boel rejected the proposal for a grate. “Covering the watercourse with a grate is not compatible with the environmental function of the watercourse in providing habitat and corridors for wildlife,” he wrote, according to the claim. The development permit was denied.
On June 6, Spencer told town council that he was unwilling to submit a new application requiring an open ditch without a safety grate, and council then confirmed Boel’s rejection of his original application.
In their lawsuit, the Spencers want damages for the denial of the permit, increased construction and material costs, development-cost charges and the loss of rental income, mental and physical distress, negligence on the part of the town, misfeasance and negligent misrepresentation, punitive damages, and legal costs.
The claim was filed on September 17. Aron Bookman, the lawyer for the town, Machado, Newman and Boel, could not tell The Coast Clarion when a detailed response will be submitted. No court date has been set.