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REPORTING · 14th August 2014
Walter McFarlane
Kitimat City Council has had some discussions on the Kingfisher Bylaw concerning the liability of accepting sloped areas as parklands. A report to Council for their meeting on Tuesday, August 5th followed advice from the lawyer for the District of Kitimat.

“If the District accepts lands and creates public access, there is duty of care with ensuring safety of the public users. As the proposed park lands include sloped areas, the District would need to provide signage and possibly fencing, depending on the location of the public access/trails. Additionally, any slippage, instability or other hazards on these proposed parklands that affects the proposed multifamily development or other properties will be the responsibility of the District of Kitimat,” wrote Deputy CAO Warren Waycheshen in a report to Council.

If the property owner maintains control of the lands, it will be their responsibility. If it goes to strata, then the land will be owned by all the strata owners.

The report also notes: “An important distinction between private property and parkland is the private property owners has control over public access, while it is more difficult for the District to control our parks. Overall, there is higher liability to the District with municipally owned lands.”

A previous report to Council dated July 24th from Director of Engineering Services Tim Gleig pointed out there is no room on the land for a playground and creating a walkway along it should be discouraged as it may lead to a failure in the slope.

On Tuesday, August 5th, Councillor Phil Germuth made a motion to remove the gift parkland from the Kingfisher Bylaw.

Councillor Mario Feldhoff confirmed the District already owned similar parkland behind Margetts street.

“The motion right now is that we don’t want the proposed park and the liabilities associated with it,” said Feldhoff. “If we go back 100 years and look at Stanley Park and the Council of the day made a decision in the long term, there were benefits to the community. There was a certain amount of risk associated with it and the area being proposed for development is within the geotechnical livable area and I think that in the long term, there may be things that could happen that maybe we can’t foresee today and the ownership of the land is a necessary step.”

He expressed he leaned towards the city adding to its proposed park area rather than restricting it.

“Some of these sites are very close to where this slope is and I don’t want to see us down the road, maybe 15 - 20 years having the District Liable for potential problems. There is another street in town just as soon as you come out of Kuldo which has had some issues and, of course, we didn’t take that either. I don’t think that’s our land either. I think on this particular one we have to be very careful that we don’t get us into trouble down the road as that slope is very steep and those houses are extremely close to where the Geotech said they could build and Geotech’s make mistakes too,” said Germuth.

Feldhoff clarified, the APC were satisfied with a covenant to protect the municipality if the land is rezoned as a park. He asked for further information on the Covenant. He was told that referred how snow is not to be thrown down the slope.

Councillor Mary Murphy asked for clarification. She wanted to know if the park space behind Margetts street, which she said is exactly the same, would also be removed as District Property.

“Would we be doing it to both of them?” asked Murphy. “Would we be allowing one behind Margetts Street as existing park space but not be allowing this one?”

She was told this was correct.

Councillor Rob Goffinet expressed the legal opinion of the District Lawyer would cut down on their liability. They had a large piece of land with only a small area suitable for building. The slope is unstable and already a concern.

“I would concur with legal and engineering opinion that we should lower our liability because we are entertaining densifying the development at the top of the slope. Therefore, we must be clear to the developer and to ourselves and our community, that we are not willing to accept the potential liability of increasing density at the top of what everyone agrees, […] is unstable ground,” said Goffinet.

The motion was called, and carried, and returned to Council on Monday August 11th. To remove the park, Council had to rescind 2nd reading and give 2nd reading to a newly worded bylaw. In addition, they received another page and a half worth of names on the petition which was given to them 2 weeks before.

Councillor Mario Feldhoff made a motion to rescind the bylaw and give second reading to the new motion. He asked staff what the changes to the bylaw were.

“We have removed the park dedication from bylaw 1852 and we’ve made two subsequent changes. There is no longer a need to increase the floor area ratio and there is no longer a need to increase the lot coverage ratio. Those changes have also been made to the bylaw,” said City Planner Sewell.

Councillor Goffinet had several questions about the changes to the bylaw, which were effectively changed because of Council’s non acceptance of the park. The motion was called and carried. The Public Hearing on Kingfisher will return on August 18th.