Open Letter to Mayor and Council
To: The District of Lantzville
Attention, Mayor and Council.
From: Jack de Jong
Subject: Rezoning Application 7143 Caillet Rd.
Council members deal with potential conflict of interest, whether perceived or pecuniary, at every council meeting. Fortunately, the training seminars and legal information sessions allow them the opportunity to acquire a fair level of knowledge and actual conflict of interest is a rare occurrence and often unintentional. Nevertheless, some councillor members are potentially more vulnerable than others. Their professional and business participation within the community especially in a small municipality like Lantzville is a strong reason for more caution and community vigilance.
Most people have an instinctive appreciation what constitutes a conflict. By example: you don’t vote for your family’s rezoning application or your client’s permissive tax exemption. It gets more difficult for more ambiguous issues. When voting to pave a street, on which a councillor resides, would require him/her to have a common interest with a number of other property owners, before he/she can discuss or vote on the expenditure. Certainly being the only one on the street would be a conflict of interest.
In 2013 Lantzville’s legal counsel advised staff and council, based on Lantzville’s number of properties (1350) and jurisprudence in other jurisdictions that the number for common interest was 35. It follows that if the provisioning of a service, a rezoning application or the paving of a street does not meet that common interest threshold a councillor would likely be conflicted.
With the previous in mind and without prejudice to the actual details of 7143 Caillet Road rezoning application, it is seems unfair to the applicant, and a loss to the community credibility, to have the proposed rezoning rejected on a questionable tie vote. It is set back much needed future village core investments when two related members of council either withdraw or participate in the decision making process on an application in which they have a vital interest. The Mayor apparently became distressed prior to this agenda item being presented to council. Did he technically recuse himself from the final vote by his absence? (The vote could have been easily postponed to obtain more information). Councillor Denise Haime pressed for an early vote (why the rush). She did vote in the negative and actively participate in the discussion, was this appropriate?
Common Law conflict of interest
The village core includes 12 or 13 commercial zoned properties. Councillor Haime and Mayor Haime to the best of my knowledge own one of these properties (adjacent to city hall). As such they had a matter before council distinct from the rest of council. Whether they voted for or against the application the rules suggest there was a potential conflict. Their common interest appears to have been narrowed to only 12 or 13 properties and nowhere near the 35 threshold suggested by a previous legal opinion.
Under current legislation I understand the vote could be set aside.
Pecuniary conflict of interest
There may also have been a pecuniary (financial) conflict of interest. If Mayor Haime and Councillor Haime voted for the rezoning they would have arguably benefited by an improved village core, increased property values etc. If they voted against the application one could argue they did not want share limited parking, increase competition for commercial rental space, etc. Although paradoxical, it clearly demonstrates they had a strong interest, certainly more than the rest of council, in the outcome of the vote.
This is a more serious concern and should move council to obtain a legal opinion to verify if the vote met the legal test of pecuniary interest.
Among other penalties the vote could actually be reversed.
What is next?
It would be troublesome if the applicant gained approval on a voting technicality. It does not serve him or our community well. I understand the owner is not a developer, nor a real estate investor but rather a small business man who wants to invest in this community. He planned to remove a village core eyesore and improve his employees work environment. Does the District of Lantzville really want to reject his proposal outright? Where is the leadership here? Perhaps the applicant was too demanding on the residential component. Perhaps parking needed to be more accommodating. I do not know the owner, but I am told he is a reasonable man willing to work with staff and neighbours to address some of these apprehensions.
The previous “Village Core Improvement Committee” recommended the addition of a residential component to the commercial developments. This clearly indicates the applicant was attempting to accommodate what had been expressed by this community as a desirable housing option. Why is this now unwelcome?
I have seen no reasons to qualify for an outright rejection, certainly not on a tie vote.
Council and the CAO have an important role to play here. This is an issue where some Legal advice and discussion with the applicant is required. Mr. Coulson who is always upfront on conflict issues was the acting mayor and could ask for vote reconsideration.
This is not about whether this application gets approved or not but more about Lantzville’s credibility and fair dealing with property owners and rezoning applications.
Finally I would add a picture of my earlier days in the Middle East as a consultant. It shows yours truly with a private aircraft crew in the middle of the desert with the actual Lawrence of Arabia train wreck. It expresses my thought well on the process and handling of this application.
Jack de Jong
16 August 2017