A judge last week ordered the District of Squamish (DOS) to issue a development permit to a man who wants to build a modular home on land he owns on the Squamish River side of the dike in Brackendale, in spite of a DOS council decision last year to deny the permit's issuance.
Don McCargar owns 78 acres of land east of Depot Road, including 15 acres west of the Squamish River dike. In 2009, McCargar applied for a development permit to build a 1,300-square-foot home on the river side of the dike and was asked to supply technical reports and seek comments from the federal Department of Fisheries and Oceans and the B.C. Ministry of Environment.
"B.C. Ministry of Environment approval was obtained to allow placing fill adjacent to the dike," stated a ruling issued on June 7 by B.C. Supreme Court Mr. Justice Verhoeven.
After the background material was obtained, McCargar resubmitted his development permit application on Feb. 1, 2010. It was submitted to council on July 27, 2010, with a recommendation from Cameron Chalmers, then DOS director of planning, that the permit be approved because in his opinion, the district's development permit guidelines did not prevent it.
Chalmers, though, also told council that "building officials would still have to make a decision about whether or not to authorize the location of the building," Verhoeven's ruling said.
In spite of that, councillors expressed concerns about the wisdom of approving such a development in the area. According to the text of the ruling, Coun. Doug Race said, "I just don't see the sense of us approving any kind of improvement on the water side of the dike," while others also focused on the flood risk.
The matter was sent back to staff, and after McCargar declined an invitation to move the home to the east side of the dike, was brought back to council again with a recommendation for approval on Sept. 21, 2010. Again, it was denied.
Justice Verhoeven, though, ordered the district to issue the permit, saying the comments of the councillors "do not reflect relevant considerations" as spelled out in the guidelines for the issuance of development permits.
James Carpick, McCargar's lawyer, on Tuesday (June 14) said the court's ruling essentially said the reasons given by council for refusing the development permit were not valid.
"The court was asked whether it should send the matter back to council for further consideration, and the court said that no, it should not - that council had already had two kicks at the can," Carpick said.
McCargar could not be reached for comment, but Carpick said he believed his client still needed to apply for a building permit before the project could begin.
Edith Tobe, executive director of the Squamish River Watershed Society, on Monday (June 13) said she's not sure about the wisdom of building on the river side of the dike because she hasn't seen the property.
"As a watershed technologist, I think it's foolish, but I don't think they (the DOS) can stop him," she said.
However, Tobe said she does have concerns about the potential for a new road to be built to access the property.
In 2009, McCargar applied for permission to subdivide his property for an amusement park, interpretive centre and high-density residential development. The land, which is currently zoned for parcels of no less than 10 acres, is designated as "greenway" in Squamish's Official Community Plan.
While the larger plan isn't on the table at the moment -Mayor Greg Gardner on Monday said council hasn't seen such an application -Tobe said her concern then, and now, was and is how a new access road off the end of Depot Road might change the hydrology of the area, potentially leading to the flooding of nearby properties.
"The road alignment would be within the Horse Creek and Judd Slough sub-watershed basins, which currently are large wetlands acting as enormous flood storage lands," Tobe wrote in an email to The Chief.
"Once you put fill in the flood lands, as soon as you start compacting those soils, you've got surface runoff and you get flooding," Tobe said in an interview.
"In essence a road is like a dike, but if you do it right, with enough culvert crossings to allow the water to flow, it can still flow, but any road would have to be done with proper hydrological studies."
At the moment, McCargar's property can be accessed from the end of Brennan Road near Fisherman's Park or from the Squamish Nation reserve at the end of Axen Road, Tobe said. She added, though, that she hasn't talked to McCargar to ask how he intends to access the would-be modular home site.
