Conflict of Interest - April 1, 2019

To:  Mayor and Councillors, Oak Bay Council and Mr. B. Anderson, Planning Department; Chief Administrative Officer; Director of Corporate Services

Re:  Advisory Planning Commission membership and Conflict of Interest Z0N00034/DP000022

On 14 August 2018 the attached letter was sent to Mayor and Council.  The topic was perceived conflict of interest when Virginia Holden, a member of the Advisory Planning Commission, gave a ‘workshop’ on affordable housing to the Commission at its July 3 2018 meeting. She gave this workshop in her role as Director of Housing Policy in the Housing Policy Branch of the B.C. Ministry of Municipal Affairs and Housing.
Incidentally, the minutes of this meeting were not posted on Oak Bay’s Municipal website until  Friday  29 March 2019 after we alerted Municipal Hall that the minutes had never been posted, although they were adopted at a meeting on February 5 2019.

In response to our letter of 14 August 2018, we received replies from then-councillors Murdoch and Green who acknowledged that this was something to be watched, which we have done.  (Copies of their replies have been included at the end of this email.) 

For the past year and more, we have been submitting Freedom of Information requests to BC Housing concerning the proposed Oak Bay United Church development. The following disclosure is from our Freedom of Information request 292-30-13218.

It appears that Ms. Holden and BC Housing are collaborating on the OBUC development project. Based on the correspondence included in the FOI, it appears she has had private meetings and discussions with BC Housing on this topic. 

On 4 November 2018 she wrote to Malcolm McNaughton and Armin Amrolia of BC Housing – “Thanks for taking the time to meet with me on Friday. It was great to see you both and appreciate your willingness and flexibility for me to work with your team. Overall, I am interested to start something with BC Housing in the new year in some shape or form.  In terms of Oak Bay United, (redacted) I just want to understand what the possibilities are….I walked through the neighbourhood around the OB church yesterday to get a better sense of the neighbours` concerns more clearly.”

On 8 November 2018, she wrote “I met with the Chair of the Oak Bay planning commission as well as the other members on Tuesday (redacted) I would just need to step out of deliberations any time that the project is discussed or reviewed. This is common practice whenever there is a perceived conflict of interest to the project under discussion. Given this decision, I would be interested working with BC Housing”.
(We should point out that all of the grammatical errors are hers – we have merely copied her correspondence.)
Our FOI ran from October 5 to November 8, 2018, so unfortunately we do not have any further information to convey, although we are waiting momentarily for the next one. However, we firmly believe there is enough in what we have received to date to be very concerned.

We understand that Ms. Holden was taking a leave of absence from the Ministry of Municipal Affairs and Housing so she could look after her children – she stated this at the July 3 2018 meeting of the APC. We don`t know what has transpired since in terms of her employment, but t certainly appears that she has been seeking a contract with BC Housing since then.

We entirely appreciate that it is common practice when confronted with a perceived or real conflict of interest to recuse oneself from any discussions or deliberations that concern an issue at hand – and, to her credit, Ms. Holden does seem to recognize this. However, when someone declares a conflict they are obliged NOT to discuss anything about a proposed project with those who are involved in providing advice or making a recommendation on a proposal. We have no way of knowing what information or views she has shared with other members of the APC about the OBUC project, although we know she met with them to discuss her situation. This is unusual – it should not have required a meeting, she should have immediately recognized she had a conflict – and that SHOULD HAVE BEEN THE END OF ANY DISCUSSION with any members of the APC.  Of course, unless she understands this (and why should we think she does understand this) her continued presence as a member of the APC provides her with ample opportunities for side-bar chats with other members. To say the least, this whole situation is very worrisome.

It is entirely inadequate that she only proposes to recuse herself from public discussions on the OBUC project when she has already spoken to the members privately and appears to be acting as a paid agent of BC Housing and the developer. This is something that needs to be investigated as quickly as possible.
During the recent municipal election, you, as our mayor and council, promised more transparency. We feel you should be aware of this significant information and urge you to take immediate appropriate action so that this submission is judged fairly and independently by the commission and by council. 

Concerned Citizens Network Oak Bay https://ccn-oakbay.com

On behalf of Concerned Citizens Network of Oak Bay:   Wayne Todd, Maggie Bolitho, Barbara Judson, Catherine Griffiths, Diana Butler, Wayne Randall, Alan Bolitho, Garen Kassabian, Curtis Hobson, Matt Stooke.  Citizens of Oak Bay. 

Note: a copy of the original text in the FOI report is available upon request.

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Letter sent to Mayor and Council on August 14 2018 from a concerned citizen, Concerned Citizens Network Oak Bay

At the July 3 2018 meeting of the District of Oak Bay Advisory Planning Commission, committee member Virginia Holden, who is also Director of Housing Policy in the Housing Policy Branch of the B.C. Ministry of Municipal Affairs and Housing, gave a presentation to committee members on housing affordability. Some local citizens who attended this meeting as observers and took notes felt that this was clearly a sales-pitch for the contentious OBUC affordable housing project. She stressed the need to identify and help non-profit sites that need redevelopment. She described now as a time when "the stars have aligned" and wanted other members of committee to know what a perfect time it was for non-profits, among others, to take advantage of all the affordable housing funding available from BC Housing, the Community Housing Fund, the Federal Government, CRD, and how Density-bonusing is being promoted with municipalities, including exemptions from property taxes for 10 years for those developers. She spoke about municipalities being encouraged to streamline and hasten the process of rezoning applications for these developers. She plans to give part II of the presentation to committee members at the next meeting in September.  It sounds as if  BC Housing is giving advice to developers on how to speed their developments through local councils without having to go through due-process.
As part of the Advisory Planning Commission’s mandate is “To advise Council on matters respecting land use, community planning, or proposed bylaws and certain permits under Part 26 of the Local Government Act. And Official Community Plan amendment applications, rezoning applications and land use contract amendments to ensure proposed developments comply with the policies and objectives of the Official Community Plan”  might I suggest that there is a conflict of interest in Ms. Holden’s dual roles as Director of Housing Policy in the Policy Branch of BC Housing and a member of the Advisory Planning Commission who will be advising Council on the Oak Bay United Church/BC Housing’s massive mixed income building project.   The OBUC has already appeared before council asking that their project be streamlined and expedited (which failed).   I hope that Ms. Holden’s planned part II in September will be reconsidered.  It is clearly inappropriate.
Responses received to the above letter
From Kevin Murdoch

Thank you for bringing this to my attention. Conflict of interest is important to keep an eye on. By my assessment, there is probably no "actionable" issue here, but rather something for a mayor to talk to members about directly.  In general, conflict of interest is self-declared. In areas where there is no clear, direct financial benefit to someone by their actions, it is a judgement call by the individual. For elected officials it's a bit more of an issue, as we are held accountable every few years by the electorate, so perceived conflict of interest has as much weight as technical / direct.  
The other factor here is that the Advisory Planning Commission (APC) is an advisory body only - they don't make any decisions. As such, their exposure to conflict of interest is quite low.
Of course, the members are allowed to have opinions (even strong opinions). Most problems with APCs come generally where they are seen to be advocating for a particular development, particularly before it comes before them formally with staff input. That, again, should be fairly blatant to action. In the end, Council will very rarely remove a member, but issues around performance come up when Council (annually) determines whether to renew their membership on the committees or commissions.

Kind Regards,
Kevin 

From: Cairine Green [mailto:oakbay@cairinegreen.ca]
Sent: Thursday, August 16, 2018 4:05 PM
To: Barbara Judson
Subject: Re: Perceived conflict of interest Advisory Planning Commision

Barbara, many thanks for your email message.  
Having been a Councillor in two communities, North Saanich and Oak Bay, and as a current volunteer Commission member in Oak Bay (Heritage Commission), my experience has taught me that every volunteer Commission member must always be careful about real or perceived conflicts of interest when serving the municipality and the public.  As you know, Commission members are not only volunteers but also agents of the Municipality, given that Mayor and Council ratify volunteer appointments.  
Commissions have a more formal mandate, unlike committees, task forces or working groups. Commissions are standing committees, are created through a bylaw and, therefore, have a unique relationship with Mayor and Council because of their role and responsibility in making decisions on specific referrals from Council that are later brought back to Council as recommendations for Council’s final decision.
I have found through many years of volunteering and as an elected official, that conflict of interest can be a concept not always well understood.  In the case of municipal government, elected Council members are reminded of conflict of interest from time to time but the final decision about whether or not the member may be in conflict rests with the individual Councillor.  That being said, it’s always good practice to obtain independent legal advice if there is any doubt.  The best advice I had was that if one thinks or feels they might have a conflict, then they probably do and should always err on the side of caution.
You may be interested in a precedent-setting case from North Saanich in 2005, on Conflict of Interest, Godfrey vs. Bird, where a North Saanich Councillor, Bill Bird, was disqualified from holding office.  A group of 10 concerned citizens took Mr. Bird to Court and won. There is a real lesson here for anyone elected to local government, given that the majority of decisions made are about land use.
The best advice that I can give you in this case is to share your concerns with Mayor and Council and with senior staff.  Thanks for getting in touch with me.

***

All of the above is a great concern, exacerbated by the erratic schedule of this Commission as reported here:
https://www.bclocalnews.com/news/oak-bays-advisory-planning-commission-cancelled-again/

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Vandalism (again)

Someone has been at it again.
Sunday night, April 7 2018, someone walked down Victoria Avenue and ripped some of the ‘Stop Overdevelopment’ lawn signs off neighbours’ properties.
They scattered the signs in the road, perhaps hoping that passing cars would damage them. Obviously, they had no concern that the signs might damage passing vehicles.
This is the third incident of this type of property damage in just over twelve months.
Is it just random vandalism? In which case, why aren’t signs from realtors, painters etc ever touched?

Picture from Pexels

Picture from Pexels

If it's not viable, who will be liable?

To Oak Bay Planning Dept., Mayor and Council Copy Acting Chief Administrative Office

13 March 2019

Re: OBUC project ZON00034, DP000022

No Viability, just Liability

The dictionary defines viability, in the commercial sense, as the ability of a business product or service to make a profit.  This is certainly the definition intended when used by this  developer as the principal purpose of their project is to make enough money/profit  to keep the church going for the next hundred years. This amount has never been disclosed.  

The first time ‘viability’ appears is March 2017 when the church’s website describes meeting with BC Housing with ‘a financial model to estimate potential viability and risk to satisfy the church board and shown to BC Housing to secure a project planning loan’.  Our Freedom of information reports had the dollar amount to ensure viability redacted.    Viability (or amount of profit the developer needs to make) initially required a building  of 269 affordable units in a 6-storey L shaped tower, for BC Housing’s application for funding.  OK, said BC Housing.  The District of Oak Bay Planning staff  also were apparently “supportive of this project and the proposed development met the objectives of the local Planning Department” – again from a Freedom of information report obtained by neighbours .

From the beginning the terms ‘viability’ and ‘affordable housing’ went hand-in-hand, but with ever-changing definitions.  By March 2018 the 269 units of affordable housing morphed into 123 units of affordable housing and 14 market units.  By May 2018, there were 50 units of affordable housing and 46 market and long-term lease units.   Between March and May 2018, the name of the development changed from “Affordable Housing Project” to Neighbourhood Housing Initiative – with the word affordable no longer part of the description.

In an October 2018 submission to a Request for Proposals by the  BC Community Housing Fund, the developer applied for a grant based on using revenues from market units to subsidize the affordable units. The developer stated in this submission (available through FOI request 30-11318). “if grant support is not obtained or planning costs rise more units may have to be switched into being market units to safeguard breakeven.”  Also that “certain terms of the RFP conflict with the high cost of development in Oak Bay such that the level of grants and rental stipulations would prevent achieving breakeven”

In conclusion, the developer states “Due to the high cost of building in Oak Bay we unfortunately cannot meet the rental level requirements of the RFP since they would render the project unviable”.

Before proceeding further with the developer’s Rezoning Application, might I suggest that the Planning Department, Councillors and Mayor request confirmation of what the affordable rents for this project will be.  Based on the apparently new information that there is a “high cost of building in Oak Bay” and that “more units may have to be switched into being market units to safeguard breakeven” it seems that this could turn out to be a non-affordable development.

Photo from Pexel - photographer Juhasz Imre

Photo from Pexel - photographer Juhasz Imre

Thank you.  

B. Judson

A modest request

This letter simply asks that the OBUC-Development Team be required to comply with the requests made by the District of Oak Bay in January 2018:

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Just the facts please

Tonight’s email to BC Housing and the District of Oak Bay:

Recently the CCN received documents from BC Housing as the result of an FOI request. These included Oak Bay United Church – Development Team’s recent submission to Housing BC: Community Housing Fund requesting grant funds (RFP 1070-1819/016 Submission), and other correspondence.

These documents stated unequivocally that the OBUC project have support from a Member of the Legislative Assembly.

From FOI 30-11318:

The project is […] supported by our MLA, (page 11)

MLA Andrew Weaver has indicated support (page 25)

MLA Andrew Weaver supports the proposal (page 89)

When a member of the CCN asked Dr. Weaver about these assertions, he responded:

I am surprised that documentation would be submitted saying I was for any specific project in my riding. I am supportive of the general notion of building more affordable housing. It is inappropriate for me to single out a particular project to support or not support”

The need for affordable housing is not in question. The CCN is challenging the height, size and density of this design in our single-family neighbourhood. The lack of adequate parking and significantly increased traffic would have a major negative impact on our narrow neighbourhood streets.

Did the OBUC-DT hope to distract from these issues by falsely claiming an endorsement from a higher power? 

When significant misrepresentations have been made in parts of submissions, doesn’t it cast doubt over the integrity of the rest of the OBUC-DT’s statements?

M. Bolitho
Oak Bay

Book cover from www.writersresist.com - click on the image for more details about this book.

Book cover from www.writersresist.com - click on the image for more details about this book.

What about today's neighbours? to OBN Sept 14, 2018

In the Oak Bay United Church’s letter attached to their Rezoning Application dated 13 August 2018,  the developer writes : “We hope to build a solution for the pressures faced by today's community and create a legacy for the generations to come.”
Has the church forgotten that they also need to consider the pressures faced by their present neighbours and wider Oak Bay community before building this massive project which will change their neighbourhood and the face of Oak Bay forever?  Have they given thought to the stress and fear their present neighbours, many of whom have lived here for decades and are in their very late years, are experiencing?
On September 11th the church posted some technical studies on their website. The arborists report writes of the trees that will be removed.

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The mechanical engineers description of how venting fumes and odours from the underground garage, garbage rooms, gas boilers and 96 units will be installed on the building’s roof (to drift over the neighbourhood). The geologists report that describes rock blasting and possible damage to adjacent structures during excavation and construction and the underpinning and shoring of the church and a neighbouring property that will be needed. Another warning is about seepage (already a common problem in older period homes next to the church). The report warns that noise and ground vibrations will be experienced by neighbouring residents and complaints from neighbours should be anticipated.  The church and heritage homes surrounding it were built at a time when rebar was not put into concrete foundations, putting these properties at serious risk.
If Oak Bay is serious about the welfare of  its citizens and protecting its heritage it must not accept the risk that this massive project represents.
B. G. Judson

Invitation to dialogue - OBN August 7, 2018

As a reasonably active member of Oak Bay United Church, I am always interested in a constructive conversation with my neighbours. Ordinarily, such a conversation would have three key elements: the assumption of good faith on the part of others involved in the conversation (even where there is disagreement about priorities, projects, or processes); avoiding emotionally charged language; and sharing facts and avoiding misinformation.
I am disappointed that Mr. Tod (SIC) uses language such as “specious” and “dubious tactics”. I am disappointed that he has concluded that the congregation acted in bad faith, asserting that “meaningful dialogue was not wanted”.
Mr. Tod shares, as fact, that the original proposal was for 269 housing units on one acre. I invite Mr. Tod to provide the primary source on which this statement is based. As far as I know, the original proposal was for almost half that number. If I am correct, the current proposal represents a reduction in the scope of the proposal of about 1/3. If correct, the current proposal represents a reduction in the scope of the proposal of about 2/3. In either case, it appears that the congregation has addressed “the critical issue of size and density” – perhaps not to Mr. Tod’s satisfaction, but substantially nevertheless. If we use Mr. Tod’s own, as yet unsubstantiated number, Oak Bay will have 175 fewer below market housing units than it would have. Mr. Tod and his neighbours have apparently been successful. And they are under no obligation to offer other suggestions about how to deal with the low cost housing crisis.
In any case, I look forward to Mr. Tod confirming the original proposal was for 269 units. I also invite him to have coffee with me one day, so that we can carry on the conversation.
David King
Read the online version of this letter here.

FOI raises fears - OBN July 27, 2018

Click on the article to read an online version of this letter:

Size, density, parking traffic concerns remain for OBUC proposal

Oak Bay News, May 7 2018

As a near neighbour, I attended the OBUC open house last weekend with great interest. Having participated in earlier meetings regarding the development proposal for the church property, I was curious to see the actual final plan.
My concerns regarding size, density, parking and traffic issues this project will bring to my neighbourhood have been confirmed.
The development looks massive, standing 51 feet, which is taller than the roofline of the church. Ninety-eight units are planned on 4 floors, half under the “affordable housing” criteria and the rest not. Most of the suites are under 460 sq ft in size (1 bdrm).
In comparison, Granite House across the street is also a four-storey building with a floor area that is 3,000 sq ft larger than the proposed building and with just 60 units.
One level of underground parking was originally proposed, but the current plan calls for 113 parking spaces on 2 underground levels. That will require a great deal of drilling and blasting and I fear will still be inadequate, given the fact that it must serve the church congregation of roughly 200 people and the building tenants (maybe 120?). Where is everyone visiting going to park? Where are all the day users of the current church parking lot going to park? Where are all the workers coming to the building site for many, many months going to park?
My dream would be to see perhaps 20 or 30 affordable, 2 bdrm units built on the church land with adequate parking for congregation and tenants. I know that would not meet their “bottom line”, but their plan does not meet mine.

Monica Fiederer
Oak Bay

Read the online version here.