REPORTING · 2nd August 2014
At the Regular Meeting of July 21st, Council approved a motion to have staff report back on the potential liability of accepting a proposed park on the development at Kingfisher. The report was given to Council at a Committee of the Whole Meeting on July 28th.
The recommendation: ‘That Council consider the future responsibilities and potential liability of accepting the proposed park areas and determine if there is adequate recreational or other benefit to accept this risk.’
The proposed 53 unit development at Kingfisher has raised a lion’s share of concerns from it’s neighbours. One such concern involves the slope which reduces the amount of property which the proponent can build on.
The plan for the slop is to make a path along it, make it into a trail and give it to the District of Kitimat. However, there are concerns about who would be responsible in the case the slope gives out and damages the proposed townhouses.
In the report, Director of Engineering Tim Gleig wrote: “The general instability and creep of the rear lands is readily noticeable by sloping trunked trees, erosion gullies and classic slip circles. Many go unnoticed due to the setback distance covered with native vegetation. Other slips have been impossible to ignore as they reached into back yards. There have been at least 10 lots affected by slope failures in the past 30 years. Due to the depth and inaccessibility of the gully bottoms, it is extremely difficult and expensive to try to restore any failed slopes so typically, no remedial action is taken unless the slips have impacted infrastructure or present a hazard.”
He advises council to consider that there has been no demand for a public municipal playground in the area and there is already a dedicated park for playground purposes on Margetts street which has not been developed.
The bulk of the land has not potential for playground. Building trails on the hill may contribute to failures and runoff.
“Ownership of the lands as park would increase the municipality’s exposure to claims, whether founded or not, should a future slop failure result in damages. All claims, successful or not, are very expensive to defend. We have had no claims where the lands were owned by other parties,” wrote Gleig.
He added there were details which have not been resolved regarding the building siting and drainage which will consider slope stability. They will be worked out in the design review which will include communications with a geotechnical engineer.
Councillor Phil Germuth thanked the engineering department for the report. He wanted to know who would be responsible to rectify the problem if Council did not accept the land. Gleig stated it would be a legal question and the answer would depend on whether the proposed development is strata or not.
“It would be an issue that would be totally on site with the existing property owners in opposed to involving abutting ones,” said Gleig.
Germuth asked if someone buys a townhouse, the development corporation would own the sloped land. Gleig stated the question should go to the lawyer.
Councillor Mario Feldhoff stated Council received some different viewpoints from staff. If the Council was going to turn down the gifted land, they would need to communicate this to the developer. He asked staff for comment.
Gleig explained given the unstable rear lands, they do not have a lot of control of what happens at the top. The District would be involved if there was a slide which affected properties.
“The question is whether that is a liability that Council is willing to accept because of some benefit in owning the parklands,” said Gleig.
Gwen Sewell, City Planner explained the District has a number of similar parcels of parkland. One of them is behind Margetts street. It would continue the greenbelt which goes along the Whitesale property. She expressed it would be up to Council to decide what to do.
Feldhoff wanted to hear from a lawyer about their liability on this issue. Germuth made a motion for Council to accept a legal opinion on accepting the proposed park lands. Feldhoff wanted the opinion sooner rather than later.
The motion was called and carried. The topic will return at the Regular Meeting of Council on Tuesday, August 5th for Council to make a decision.