Gloves off in Maple Pool case

By Philip Round
Echo Staff
The gloves are off in the Maple Pool case.
On Friday the City Council revealed it had decided to fight on with the intention of winning the legal battle of the
campground.
And yesterday, preparing for a long haul through the courts, a group calling itself ‘Friends of Maple Pool’
attacked the council’s case for continuing, as set out in a lengthy municipal statement.
City councillors met twice more in closed session last week to consider where the controversial zoning case had
got to and to discuss tactics.
Then on Friday, chief administrative officer David Allen issued the statement that concluded: “Courtenay Council
is comprised of members from across the political spectrum, yet the majority – fully informed of the facts in the
case – believe that this case must continue.”
There was no mention of the financial implications of pressing on, which could be huge now the action has been
broadened into one including the Charter rights of vulnerable residents living there.
But the City is firm on the flood safety issues involved; the liabilities taxpayers could face for not taking action;
and the principled need to uphold land use zonings.
The full text of the City’s statement, and the complete response from the Friends of Maple Pool – the group of
citizens and businesspeople who have been working with campground owners Jin and Dali Lin to try to resolve
the issue – are posted on the Echo’s website at www.comoxvalleyecho.com
Key points from the municipality’s perspective include what it says is a factual analysis of the flooding issues. It
notes some have commented the risk to occupants from flooding is low and limited simply to “wet feet.”
But in the Council’s view, the risk “is indeed real and significant.” It notes the provincial government advises that
vehicles are commonly carried off roadways “in as little as two feet of moving water;” just walking in moving
water deeper than six inches “is potentially dangerous;” and “most people do not know that even minor depths,
flows, and velocities of flood waters can create life-threatening conditions.”
It adds the City has previously witnessed flooding of some occupied Maple Pool campsites “knee-deep or
higher.”
Emergency evacuation procedures for Maple Pool had been drawn up in 2010, including guidelines for which
specific campsites were safe to occupy in the winter season. But the City claims Maple Pool was in violation of
those guidelines during two successive winters.
The statement adds: “Maple Pool has a history of significant flooding in recent years, in both 2009 and 2010,
which required evacuation. The City provided assistance with these evacuations. The property nearly flooded
again in 2011.
“Concerns over resident safety and the hazards witnessed during these floods motivated these legal proceedings.”
Risks, says the City, are not limited to water alone. In November 2011, fast-moving currents are said to have
pushed a large fallen tree into a campsite. A resident’s trailer had been pulled away only minutes before, so it was
narrowly missed.
“We have attempted to resolve the situation outside the court numerous times,” the statement continues.
“Rezoning and OCP amendment applications would provide the necessary starting point to address both the
legal and safety issues at this site.”
But three years on from the first request, the owners have still not submitted complete applications, “nor have
they provided a reason for this.”
The City also claims that on April 1 it was informed that such applications would not be forthcoming “despite
repeated earlier assurances starting in 2011 that they would be completed.”
The City had offered a temporary use permit while issues were being resolved, but had been rejected.
Addressing the issue of a temporary flood wall voluntarily erected by local businesses last fall but without a
municipal development permit, the statement questions whether it would work – or maybe even negatively affect
neighbouring properties. Without necessary engineering reviews, no one could say, but a proper permit
application would have produced some answers.
The City goes on: “We are not inventing the flood hazard issues at Maple Pool, and cannot allow the situation to
continue as it stands currently – both for the sake of the safety of the Maple Pool residents and the taxpayers
who could ultimately be footing the bill for damages if the unthinkable were to occur.
“The City has no motivation other than the very real risks to the campground occupants and our taxpayers.”
To help justify its strong stand, the Council refers to a case in Alberta involving a riverside campground that was
shut down following a court case “due to concerns that were similar to ours here in Courtenay – in their case,
floodwaters resulted in the death of a campground resident.”
The Council accepts the new Charter of Rights and Freedoms aspect of the case adds another layer of
complexity to what it describes as an already difficult situation, but “we do not feel this justifies allowing the
property owner to continue to ignore municipal regulations.”
It adds: “We appreciate and understand the concerns of those in the community worried about Maple Pool
residents. We share those concerns.
“The homeless and vulnerable in our City deserve housing that meets flood protection requirements, and the City
is committed to working towards safe housing alternatives for the residents.”
But the Friends of Maple Pool are far from impressed with the arguments – and directly accuse the Council of
misleading people on some of the issues.
“Council chants the tired old mantra of flood risk,” they say. And when the City refers to ‘a history of significant
flooding in recent years,’ they point out Judge Robin Baird has already concluded, in his words, “the flooding in
2009/2010 was inconvenient and messy, but nothing more.”
Further, the Friends claim that year’s floods were entirely due to major water releases from Comox Dam and in
any event the City has in the past dealt with potential liability issues on other vulnerable sites by simple waivers of
liability.
In a provocative line, they say: “Not all City Hall statements about Maple Pool are blatant falsehoods; some are
just deliberately misleading.” One such, they suggest, is the reference to ‘knee-deep or higher’ water affecting
trailers in 2009/2010.
“The statement is true on its face, but it is exclusively confined to sites which were removed/abandoned after the
floods and there has been no permanent residential occupation of these sites ever since.”
“Ladies and gentlemen of the Courtenay Council – Elvis has left the building!”
They go on: “Although the flooding technically occurred in 2009 and 2010, a council with greater integrity and
greater devotion to truth would have acknowledged that the floods occurred at the very end of 2009 and the
beginning of 2010 – that is, in one flood season and because of one-off special circumstances.”
And as for the statement ‘The property nearly flooded again in 2011,’ they respond: “Is this akin to being ‘partly
pregnant?’
“The City was thoroughly thrashed in the Supreme Court of BC when trying to make a case based on actual
flooding in 2009/2010. Now council relies on ‘nearly.’
As for the supposedly similar case of a campground in Alberta closed following court action, the group says the
only connection is that both properties are near rivers.
The Alberta campground was shut “for reasons which have no relevance whatsoever to Maple Pool,” rather the
legal issues there were sewage contaminating groundwater and dangerously exposed electrical wiring – not
flooding.
The group also calls on the Council to list and date the occasions when it has tried to resolve the situation outside
the courts on the “numerous occasions” claimed by the City.
And they suggest a public forum be organized to debate the issues, “recognizing that both sides will be restrained
from discussing legal issues which are before the court.”
In one the most forthright statement of their response, the Friends accuse the Council of “an outright lie.” It
concerns the suggestion that the Lins have had three years to initiate zoning changes or to provide reasons for
their failure to do so.
“Council knows perfectly well why Maple Pool has been unable to submit proposals, and Council also knows
that the fault lies with the City’s repeated delays in providing data from its own engineering studies.”
The Friends add: “The City tried out this accusation of delay on the part of the Lins before the BC Supreme
Court. The Court made a specific finding that there had been no delay on the part of the Lins.”
As far as notification on April 1 that there would now be no submission at all, the group says neither the Lins nor
their lawyers have provided that notification. But, they add, “the essence of the Lins legal defence is that they are
not in violation of local regulations.”
And as for Council’s insistence it shares the community’s concern over Maple Pool, they say “talk is cheap” and
to their knowledge only two elected officials from the City have visited the campground – Mayor Larry Jangula
and Coun. Manno Theos.
They note the City’s commitment to ‘providing safe housing alternatives for residents,’ and respond: “Commitment
is marvellous. But it keeps no one from having to sleep on winter streets while awaiting the fruits of the City’s
commitment.
“Residents are presently sheltered and fed; (and) they are provided with medical, dental, optical and counselling
services on a regular basis.
“The councillors are committed to noble projects in the misty future, but have a dismal past record on such
commitments.”
pround@comoxvalleyecho.com
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