The Personal is Political: A Critique of Bylaw 512

There was a time on Salt Spring Island, twenty years or so ago, when cottages were just that—cottages…with no “seasonal” qualifier. I don’t know when the seasonal restriction was imposed on Salt Spring Island cottages, or why. The six staff reports on the proposed bylaw 512 (a bylaw which would remove the “seasonal” qualifier from a handful of cottages in hopes of increasing the number of affordable rentals) that were written between 2017 and 2019—on our tax dime—do not address why the “seasonal” qualifier was added to cottages in the first place, or when. Perhaps it happened during the process of drafting the Official Community Plan in 2008—in any case, at some point in the last twenty years, our Local Trust Committee and planning staff decided that cottages should seasonally restricted, and that year-round cottage living be prohibited.

As a relative newcomer, I still shake my head in disbelief at the maze of prohibitions that pass for local governance on this beautiful island.

I know that seasonal cottages were not always seasonal because there is a twenty-year-old cottage on the land which my mother, a senior citizen, and I steward here on the side of Mount Maxwell, and, thankfully, this cottage is not bound by the restriction of seasonality. It was built, twenty years ago, before the planning department decided to prohibit cottage living.

My first big scare at the Islands Trust planning department (the first of many) was connected to this cottage, my mother’s home. I’d inquired about a permit to put in a driveway to the site of my future house, and the planner informed me that if anyone lived in the existing cottage year-round, the building of my future house would be prohibited. If the cottage was to be used as a primary dwelling, she explained, it would lose it’s cottage status and get re-classified as a house.

That put me into an awful predicament: either leaving my elderly mother with nowhere to live…in the midst of a housing crisis…while our perfectly liveable cottage stood empty, just so that I could build a house…or giving up my plans to build a house on the very expensive land we’d just purchased, so that my mother could live in her cozy little cottage. This made little sense to me given that the land was zoned for both a house and a cottage.

I recall what a blow it was, the weight on my chest, the fear I felt for my future. Was Islands Trust really going render me homeless on my own land? I ran through options in my head. I could get a trailer…but I’d only be allowed to live in it for three months of the year…and…well…that meant that my retirement plan—running a bed and breakfast in the house I was to build—was entirely shot. Needless to say, there were sleepless nights in which the spectre of an old age of dire poverty haunted me.

Luckily, I can be rather persistent. I kept asking questions. I read the bylaws again and met with another planner. This new planner was more sympathetic and figured out that my mother’s cottage was built prior to the seasonal classification. Ah ha! Falling, as it did, under the old pre-seasonally-restricted cottage rules, my mother’s cottage could lived in, legally, as a primary residence without jeopardizing my house-building plans. Whew!

Now, I can’t help asking why, exactly, the Islands Trust bureaucracy, at some unknown time in the past twenty years, decided to make perfectly good cottages—cottages that are built to code, that have adequate water, functioning septic systems, smoke alarms, wett certified wood stoves, and sweet little kitchens—expressly seasonal?

A telling clue lies in the Land Use Bylaw’s definition of ‘seasonal cottage’:

“seasonal cottage” means an accessory dwelling unit not exceeding 56 square metres in floor area which, despite the definitions of “dwelling unit” and “residential” in this Bylaw, is occupied or intended to be occupied on a temporary basis by a person or persons having a permanent domicile elsewhere and using the cottage primarily in conjunction with recreation.

Seasonal cottages, then, were invented to provide extra dwellings for rich people who already have houses elsewhere and want to come to Salt Spring to play. Seasonal cottages are the occasional playhouses of the wealthy.

Hmmm…where does that leave the rest of us? What about those of us who don’t happen to own multiple houses? What about those of us who do more than play her — those of us who live and work here? Why is there no cottage type invented in Land Use Bylaw No. 355 for working class people, gardeners, service workers, artists, and artisans?

It seems pretty clear to me that, despite the vision in the OCP of socioeconomic diversity, and the importance of the “availability of housing to meet a wide variety of needs,” LUB No. 355 has been formulated to benefit the wealthy. The many ways LUB No. 355 makes life on Salt Spring inordinately difficult for the non-affluent is perhaps a topic for another day. For now, suffice it to say that the habitations so many of ‘the rest of us’ reside in are quasi-criminalized by LUB No 355…and all that the well-educated and decently-paid full-time planning staff can do about it is to write report after report about how they really can’t do anything about it…except, at the insistence of the trustees, and at the height of a housing and affordability crisis—a crisis—to write an overly-complicated bylaw which allows a select few cottages to be rented year-round, at the cost of added prohibitions and restrictive covenants.

And that is what the proposed bylaw, bylaw 512, does: it allows a minority of the already existing cottages on Salt Spring to be rented year round, with added prohibitions.

Now, before I say anything else about proposed bylaw 512, there is an important point I’d like to make about law and good governance.

Land use bylaws need to be continuously revisited and revised. A land use bylaw is not a divine decree that appears on a stone tablet. Nor is it akin to the constitution—it does not provide a bedrock framework. Nor does it address universal inalienable rights. It is meant, rather, to be a living document responsive to a particular and ever-changing and evolving community and ecology in a particular geographic region. An effective land use bylaw changes with the changing needs of a community. Thus, a critically important job of our trustees and planners is the routine revisiting of the bylaws to determine if they are still serving our community and ecology well.

Our trustees and planners should be asking questions about specific bylaws such as: what was the reason behind this bylaw, and is this law still serving its intended purpose? Is the purpose for which this law was fabricated (yes, laws are fabricated) still necessary, or have the needs of the community changed sufficiently that the law itself is outdated? Is the law having unintended negative consequences, and, if so, how should it be changed, repealed, updated or modified?

I do not know why Islands Trust re-classified cottages as seasonal. Likely it had something to do with the politics of density. (Islands Trust does not open its archives to the public, or I can assure you this is something I would be researching.) What I do know is this: in the midst of a housing crisis it is not just inappropriate, it is highly unethical to mandate that any cottages on our island remain seasonal. It is unethical to prohibit people who need housing from living in perfectly good existing homes.

Salt Spring residents do not need to be saddled with another overly-complicated and ineffective bylaw such as bylaw 512. We need our trustees and planners to take a hard look at the laws that are already on the books which are harming our community by needlessly exacerbating this housing crisis. We need our trustees and planners to work diligently to revise and remove classist laws. Repeal the seasonal restriction on cottages. Drop bylaw 512—yes, it has eaten up a sizeable portion of planning department resources…perhaps chalk that up to a learning experience. And take the following action: Begin the process of setting into motion the excellent recommendations provided by the Housing Solutions working group, and initiate public hearings on removing the seasonal restriction from all cottages on Salt Spring. The sky will not fall…I promise!

Ah, yes, I think I know what the planner working on bylaw 512 would say in response to this. I’ve read the reports. The planner will point to section B. j. of the OCP under the heading “Seasonal Cottages” which reads: “The Local Trust Committee will make zoning changes incrementally and monitor changes in order to have the effect of limiting the overall number of full-time units on the island.” (my emphasis)

After quoting the above section of the OCP in his October 2019 report, the planner explains that bylaw 512 potentially adds 405 cottages (of the 1700 total on SSI) to the full-time rental stock, thus increasing the official (ie, ‘on-paper’) density by 5%. He explains that a 5% increase in density pushes the upper limits of what a judge in a court of law might consider incremental. He then goes on to suggest that trustees direct staff to further reduce the number of properties included in bylaw 512—that is, further decrease the number of cottages people may lawfully live in under bylaw 512, and increase the number of cottages which are to remain empty most of the year…in a housing crisis!…in order to mitigate any possible legal challenges.

Why, I wonder, did the planner not simply suggest that the trustees turn their attention to revising section B. j. of the OCP to remove the word “incremental”?

In my experience, Canadian judges tend to be highly intelligent people who look at the broader picture and exhibit concern for social well-being. I’m not saying that our judicial system is without class bias, but Canadian judges tend to make fair and considered decisions. I trust our courts….more or less…or, at least sufficiently to feel confident that if for some bizarre reason someone decided to sue Islands Trust for taking appropriate action to address a housing crisis by removing the seasonal restriction on cottages, a judge would support the lawfulness of living in cottages and rule in favour of the Trust.
Judges understand the fabricated nature of law. They don’t make laws—that they leave to the politicians—but they do strike down bad laws when necessary, thereby forcing politicians back to the drawing board. The word “incremental” in this context, drafted in 2008, by people who did not have a crystal ball to see the housing crisis that was on its way, is in no way robust enough that it should prevent the Local Trust Committee from taking real action on housing.

Further, there are a number of places in the OCP where the point is explicitly made that accommodating a diverse population is a fundamental community value. Section A.4.4.4, for example, reads: “To preserve and protect human diversity in our community by ensuring the island’s people are accommodated by a broad spectrum of appropriate and accessible housing and facilities….” Why, I wonder, is the planner more concerned with the legal interpretation of the word “incremental” than with the legality of the LUB’s prohibitionist approach to the plethora of possible affordable housing solutions?

Like many documents of its nature, the OCP has its internal contradictions. I believe that a judge would consider access to housing a far more important OCP value than falsely restricting incremental growth in density.

What do I mean by “falsely” restricting incremental growth in density? I mean that the density is already here. The density has already grown. We already live in seasonal cottages year round. We live in boats, and trucks, and trailers, and tiny houses, and sheds, and barns, and yurts. And some of us live in mansions too. Those who live in mansions are safe, protected in a myriad of ways by our bylaws. Pretending that the rest of us don’t live here by having an on-paper density that is completely out of touch with the on-the-ground-real-world-lived-density, well, how is that helpful? And who, exactly, is it serving?

January 20, 2020 1:44 PM

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