Case Study -- Subdivision will fill in wetland

SOMEWHERE, BC – A large lot on the edge of the municipality of Somewhere, BC has recently been bought by a company called Lots-R-Us (the “Lot”), which intends to subdivide and develop it.

A stream flows along one edge of the property and the lot, for some distance back from the river, includes a large swampy area (the “Wetland”).  The developer plans to fill this area in, expanding the area available for construction.

Members of the local environmental group – Somewhere Green (SG) – are concerned that the swamp area is important for fish habitat, and in particular for fry. 

Legal Background

SG’s first step is to learn about the legal status of the Lot. 

All land in British Columbia is registered under the Land Title Act, and SG asks the Land Registry to provide information about the legal status of the Lot.  The Land Title Certificate for the Lot confirms that it is owned by Lots-R-Us, and confirms a mortgage is held in favour of the local credit union. 

SG also contacts the Municipality of Somewhere and gets copies of:

·                    The Official Community Plan; and

·                    The Zoning By-law.

SG had been involved in public consultations conducted by the Municipality when the Official Community Plan was last revised, but unfortunately had not been able to get the Plan to reflect its concerns for the Lot. 

Both the Official Community Plan and the Zoning By-law the Lot is zoned for residential use.  While Lots-R-Us is proposing a residential development, however, the Zoning By-law does not provide for the density of houses that Lots-R-Us is proposing.  Lots-R-Us wants to build more houses on the property than is allowed under the Zoning By-law. 

 

Getting a sense of the politics

The Council of the Municipality of Somewhere includes members who are perceived as pro-development and others viewed as more “green.”  SG arranges to meet with 2-3 individual members of Council to get a sense of how supportive Council might be to a request to block the development and/or to protect the Wetlands.  The answer is not clear, but there is some potential to bring Council onside, particularly if there is a high level of community concern about the issue. 

SG identifies four main entities that have legal authority over the Wetlands:

(a)         Lots-Are-Us, as the owner of the Lot, will have rights as a property owner to do whatever it wants on the Lot, provided that it does not interfere with the rights of others or violate the law;

(b)         the Ministry of Sustainable Resource Management is responsible for approving any changes in or about a stream under the BC Water Act;

(c)         the Department of Fisheries of Oceans is responsible for ensuring that development does not harmfully alter fish habitat;

(d)         The municipality of Somewhere has the responsibility for land-use planning within the boundaries of the municipality, and of overseeing development, and as such has a wide range of powers to govern the use of the Lot.

In addition to considering the legal players, SG decides that public concern over the proposed development of the Wetland will encourage the chances of governments at all levels acting.  To this end:

(e)         SG will initiate a campaign to raise public awareness about the importance of the wetland and the threat posed by development.

 

(a)       Lots-R-Us

SG requests a meeting with Lots-R-Us.  In the letter requesting a meeting, the organization notes that the Lot contains areas of ecological significance, notably the wetland, notes that SG will take whatever action it can to protect the wetland, but suggests that it would be preferable to come to a solution which works for everyone. 

At the meeting SG explains the reasons that it would like to see the Wetlands protected and asks Lots-R-Us to modify its plans accordingly.  Representatives of Lots-R-Us explain that while the company wishes to be a good citizen, preserving the Wetlands would represent a significant loss of value to the company.  SG asks Lots-R-Us to recognize that community opposition could result in problems in obtaining municipal approval for the subdivision and increased density of houses.  SG notes that protecting some green space may increase the value of the remaining units.

What happens next in the discussions depends on the level of cooperation that SG feels that it has from both the municipal council and the developer, as well as support from the community at large.  However, some solutions that SG might discuss with Lots-R-Us, should the developer seem interested in a negotiated solution, include: 

·         Turning the wetland over to the Municipality for use as a park, enhancing the visual qualities of the rest of the development;

·         registering a conservation covenant protecting the wetland in the name of SG for a fee, to be negotiated;

·         Approaching the municipality to request that, in return for the protection of the Wetland, the density of units be increased for the remainder of the Lot; and

·         Having SG approach the credit union holding the mortgage (if the credit union has an environmental fund) to explore forgiving part of Lots-Are-Us’ mortgage in return for protecting the Wetlands.

Whether Lots-R-Us will be interested in any of these options will depend both on its character as a company, but also on the likelihood that SG will be able to create significant barriers to the development of the Wetlands.  Some developers will not be interested in any such options, while others prefer to maintain a good reputation within the community and/or keep on the good side of council.

 

(b)       Ministry of Sustainable Resource Management (MSRM)

Under the Water Act government approval will likely be required before the developer can fill in the wetland.  Section 9 of the Water Act provides that any action which changes the land or flow of a stream, or which takes place within the channel of the stream and is likely to have an impact on the stream, must have government approval.  The definition of “stream” includes “swamp”, and the wetland almost certainly qualifies.  While there are exceptions to the requirement of government approval, none seem to apply to this situation. 

The Water Act deals with water use and does not have the same emphasis on fish protection.  Nonetheless, the Act certainly gives the Ministry of Sustainable Management the discretion to stop the infilling of the wetland, and SG decides to contact the Ministry to ask for a meeting to discuss why approval should not be granted.     

 

(c)       Fisheries and Oceans Canada

SG contacts Fisheries and Oceans Canada to discuss how the federal government’s Fisheries Act applies in this case.  In particular, SG suggests that the infill of the wetland will “harmfully alter, damage or destroy” fish habitat, contrary to the Fisheries Act. 

The Department of Fisheries and Oceans will examine whether the threat to fish habitat from the proposed infill can be addressed through other means.  It may also consider a proposal from Lots-R-Us to provide for fish habitat through other means. 

In the end, however, the development will need approval from Fisheries and Oceans before it can proceed, and SG decides to meet with Fisheries and Oceans officials to explain their concerns and to ask the Department not to approve the infill. 

 

(d)       Municipality of Somewhere

SG meets with the municipality’s chief planner to ask how the municipality intends to address fish habitat concerns.  They ask about whether the city has a streamside protection by-law, and whether it applies in the current case.  The City Planner agrees to look into both of these matters and get back with answers. 

SG is aware that there is a split on the municipal council, and that in the end the extent of the development may be a political question.  It requests the opportunity to make a presentation of its concerns to council, and makes plans to pack that council meeting with its supporters.  It asks the city not to change the current zoning to allow for increased density, and suggests that the Official Community Plan should be amended to recognize the environmental sensitivity of the area. 

Responding to questions from councilors about possible solutions, SG suggests that the municipality might want to play a role in facilitating a win-win solution with the developer. 

This meeting is followed up with one-on-one meetings with councilors who are supportive of these changes. 

 

(e)       Public Relations Campaign

Recognizing that Council (and perhaps the developer) is more likely to protect the wetlands if there is public opposition to the proposed destruction of the wetland, SG prepares and distributes a pamphlet.  The pamphlet:

·         Describes the wetland and its environmental significance;

·         Describes the development and its likely consequences;

·         Asks concerned citizens to write or phone the Council members; and

·         Invites concerned citizens to join SG.

A member of SG writes an editorial for the local paper noting the importance of the wetlands and demanding that it be protected.  Before SG’s meeting with the municipal council, which will be a public event, SG sends a press release out to the local media. 

In addition, SG begins a petition campaign, with members standing on street corners handing out pamphlets and inviting passersby to sign a petition to the municipal Council. 

Depending on its resources and energy, SG may consider other public relations tools. 

 

Conclusion

Does SG succeed?  The scenario is fictional, but the strength of the fish habitat concerns make this a relatively strong case. 

Depending on its success with one decision-maker, SG may hold off pursuing its other options as aggressively.  After all, the above is a lot of work.  At the same time, however, it’s important not to put your eggs in one basket, or to lose public support and momentum while you concentrate on behind the scene negotiations. 

There is no point in spending energy on a strategy if the door is clearly closed.  A few phone calls and initial meetings will help tell you who your allies are, and what is likely to work.  Adapt your strategy as you go to put your resources where they will do the most good.