/ ~N ‘PSNOVIS, 1607470 RISS 200.00 ovis se0194 wo, S 80194 NANAIMO REGISTRY IN THE SUPREME COURT OF BRITISH COLUMBIA RE: IN THE MATTER OF AN APPLICATION UNDER SECTION 111(1)(A) OF THE COMMUNITY CHARTER, S.B.C. 2003, C.26 BETWEEN: RAYMOND FARMER, RYAN FARMER, JOAN COULSON, ANN MARMENT ROGER MARMENT, ALFRED DUMOUCHELLE, DAVID BRIGGS DAVID THOMAS COULSON, HANS LARSEN, KEN JACKSON, PATRICK PETREMAN, DOUG BLAKEY Petitioner(s) AND: WILLIAM ROBERT COLCLOUGH Respondent(s) PETITION TO THE COURT ON NOTICETO: WILLIAM ROBERT COLCLOUGH This proceeding has been started by the Petitioners) for the relief set out in Part 1 below. If you intend to respond to this petition, you or your lawyer must (a) file a response to petition in Form 67 in the above-named registry of this court within the time for response to petition described below, and (b) serve on the petitioner(s) (i) 2 copies of the filed response to petition, and(ii) 2 copies of each filed affidavit on which you intend to rely at the hearing Orders, including orders granting the relief claimed, may be made against you, without any further notice to you, if you fail to file the response to petition within the time for response. TIME FOR RESPONSE TO PETITION A response to petition must be filed and served on the petitioner(s), (2) _ if you were served with the petition anywhere in Canada, wi in 21 days after service, (b) if you were served with the petition anywhere in the United States of America, within 35 days after that service, (c)__ifyou were served with the petition anywhere else, within 49 days after that service, or {d) if the time for response has been set by order of the court, within that time. () The address of the registry i (2) | The ADDRESS FOR SERVICE of the Petitioner: Fax number address for service (if any) of the Petitioner: Email address for service (if any) of the Petitioner: @)_| The name and office address of the Petitioner's lawyers: CLAIM OF THE PETITIONER(S) Part 1: ORDERS SOUGHT 1. Adeclaration that, by attending at the meeting of the Petitioner's Council held on October 12", 2016 (the "October 12, 2016 Council Meeting”), and participating in the discussion of and voting on the motion {Item 1 under New Business, Motions & Notices of Motions], after previously declaring a conflict of interest on matters pertaining to the Foothills Development, the Respondent did not ‘comply with Section 100(4) of the Community Charter and therefore contravened Section 100 (3) of the Community Charter A declaration that, by attending at the meeting of the Petitioner’s Council held on October 12", 2016 {the “October 12, 2016 Council Meeting”), and participating in the discussion of and voting on the ‘motion [Item 1 under New Business, Motions & Notices of Motions] the Respondent contravened Section 101 (1) and (2) of the Community Charter3. A declaration that the Respondent has a direct pecuniary interest pertaining to execution and commencement of the Lantzville Nanaimo Water agreement, signed September 82014. 4, Adeclaration that the Respondent has a direct pecuniary interest in matters pertaining to the Foothills Development. 5. Adeclaration that, by attending at the meeting of the Petitioner's Council held on September 12, 2016 (the “September 12, 2016 Council Meeting”), and participating in the discussion of and voting on motion (16-141, a motion to tender the construction of the Lantzville-Nanaimo water interconnection, the Respondent contravened Section 101 (1) and (2) of the Community Charter 6. Adeclaration that Respondent's vote on motion C16-141 is invalidated. Further, if the Respondent's vote is invalidated, the results of the motion C16-141, from September 12, 2016, are materially altered to result in a tie vote as the Respondent participated in a recorded vote which passed on a 4-3, decision. Motion C16-141 would then fail on a tie vote. 7. declaration that the Respondent is disqualified from holding office pursuant to section 101(3), 108.1, and 111(6)(b) of the Community Charter; 8. A declaration that the office held by the Respondent on the Lantzville municipal Council is vacant Pursuant to section 111(6)(c) of the Community Charter. 9. The Petitioner's recover the costs of the within proceedings from the Respondent; and 10. Such further and other relief that the Honourable Court deems just. FACTUAL BASIS 1. The Petitioners are residents of the municipality of Lantzville. A municipal corporation under the Local Government Act, R.S.B.C. 1996, C. 323, and the Community Charter, and has a business office at 7192 Lantzville Road, BC, VOR2HO 2. On August 8, 2015, the Respondent was elected to the office of Lantzville's Council to serve as a Councillor. 3. On August 31, 2015 the Respondent swore to the Province of British Columbia Councillor Oath of Office. 4. At all times material to this Petition, the Respondent has owned property at 7401 Aulds Road - a Property within the municipality of Lantzvill's territorial jurisdiction. A property adjacent to the Foothills Development.5. Lone Tree Properties Ltd (Lone Tree) is a wholly owned subsidiary of Storm Mountain Development Corporation and is responsible for the development of the Foothills Lands. Said development project is commonly referred to as "The Foothill" or "Foothills". 6. The Respondent has publicly declared intention to subdivide his property. The Respondent has authorized Lone Tree Properties to act on his behalf for the purpose of subdividing his land in conjunction with that of Lone Tree Properties. 7. Lone Tree Properties has agreed to service the Respondent's lands with roads, water and sanitation hook ups. 8. Lone Tree Properties will be the recipient of water connections available once Lantzville commences the Lantzville-Nanaimo water agreement. 9. The Respondent was previously employed by Lone Tree Properties. The most recent employment was ‘a6 month term that ended June 30, 2015. Potential conflict on Oct 12/Nov 14 — not stepping out on previous declarations 10. At the meeting of the Petitioner’s Council held on January 25, 2016 (the “January 25, 2016 Regular ‘Council Meeting”), the Respondent declared that pursuant to section 100 of the Community Charter ‘that he was unable to speak or vote on the next items as he owns property adjacent to subject property and The Foothills development. The minutes of the January 25, 2016 Regular Council meeting show that the Respondent immediately left the meeting at 7:50 PM. Two motions were handled in Council chambers at that time: 1) a development permit, and 2) A request for a staff | update, at the February 10, 2016 council meeting, on the Foothills Phase 1 subdivision application, | including Schedules A, B, and C and water implications as noted in the Development Agreement. Once these two motions were voted on, the Respondent returned to the meeting at 8:10 PM. 11, At the regular meeting of the Petitioner's Council held on February 10th, 2016, agenda item 7.a) pertained to the Foothills Phase 1 Subdivision Application Update. This item appeared on the agenda from a motion originating at the January 25, 2016 Regular Meeting. At the February 10, 2016 Regular Meeting, the Respondent declared that pursuant to section 100 of the Community Charter that he was tunable to speak or vote on the next items as he owns property adjacent to subject property. The minutes of the February 10, 2016 Regular Meeting show that the Respondent immediately left the ‘meeting at 8:20 PM. Council received the information from staff. The Respondent returned to the meeting at 8:25 PM, 12. At the regular meeting of the Petitioner’s Council held on September 19, 2016, a Notice of Motion was submitted pertaining to Lone Tree Properties Subdivision Application Water Connection. This notice was submitted for inclusion in the October 12, 2016 regular meeting. This notice gave adequate time2B. 14. 45. 16. v7. 18, 19. 5 for Councillors to consider if there was a conflict position on the motion to be considered on October 12, 2016. At the meeting of the Petitioner's Council held on October 12, 2016, agenda item 9.a) pertained to the Foothills Phase 1 Subdivision Application Water Connection. The Respondent attended at the October 12, 2016 Regular Meeting of the Petitioner's Council, and participated in the discussion of and voted con the motion. The Respondent did not declare a conflict of interest pursuant to Section 100 of the Community Charter as the Respondent had previously done on previous matters pertaining to the Foothills Development. The Respondent owned property adjacent to The Foothills development at the time of this motion, The motion failed on a recorded 3-4 vote. The Respondent voted against the motion. ‘At the meeting of the Petitioner’s Council held on November 14, 2016, agenda item 9.c) pertained to the release of the Foothills Phase 1 Subdivision Application to the public. The Respondent declared that pursuant to section 100 of the Community Charter that he was unable to speak or vote on the next items as he owns property adjacent to subject property and The Foothills development. ‘At the November 14, 2016 regular meeting of Council, the Respondent participated in a discussion regarding the “Interpretation and Administration of ‘District of Lantzville Subdivision and Development Bylaw No. 55, 2005, Amendment Bylaw No. 55.1, 2006" and ‘District of Lantzville Policy No. 3007-3” ‘A motion was made on the floor on this topic. The Respondent voted on this motion. Subsequent to declaring a conflict of interest on matters pertaining to the Foothills Development, the Respondent has participated and voted on Council motions to seek timely policy and legal advice in relation to the Foothills Development, including the applicability and effectiveness of Bylaw 55.1 as it relates to water supply to properties outside of the comprehensive development zone, including the Respondent's property. The respondent did not provide a legal opinion to rejoin discussions pertaining to the Foothills Development, and in doing so, may not have complied with 100(4) of the Community Charter and therefore may have violated Section 100(3) of the Community Charter. This sequence of declarations, and non-declarations, during the course of 2016 would create confusion for a reasonable person and questions as to what matter Councillor Colclough was indeed declaring a conflict on. Per the January 25, 2016 “he was unable to speak or vote on the next items as he owns property adjacent to subject property and The Foothills development”. The Respondents continues to live adjacent to The Foothills development, a reasonable person would assume that a conflict position would stil exist regarding The Foothills Development “matter”./ ™~ vis, 4607470 RISS 200.00 Bat *cenise No, 80194 NANAIMO REGISTRY IN THE SUPREME COURT OF BRITISH COLUMBIA RE: IN THE MATTER OF AN APPLICATION UNDER SECTION 111(1)(A) OF THE COMMUNITY CHARTER, S.B.C. 2003, C.26 BETWEEN: RAYMOND FARMER, RYAN FARMER, JOAN COULSON, ANN MARMENT ROGER MARMENT, ALFRED DUMOUCHELLE, DAVID BRIGGS DAVID THOMAS COULSON, HANS LARSEN, KEN JACKSON, PATRICK PETREMAN, DOUG BLAKEY AND: WILLIAM ROBERT COLCLOUGH Respondent(s) PETITION TO THE COURT ON NOTICE TO: WILLIAM ROBERT COLCLOUGH ‘This proceeding has been started by the Petitioner(s) for the relief set out in Part 1 below. If you intend to respond to this petition, you or your lawyer must {a) file a response to petition in Form 67 in the above-named registry of this court wit response to petition described below, and the time for {b) serve on the petitioner(s) {i)_ 2 copies of the filed response to petition, and(ii) 2 copies of each filed affidavit on which you intend to rely at the hearing Orders, including orders granting the relief claimed, may be made against you, without any further notice to you, if you fail to file the response to petition within the time for response. TIME FOR RESPONSE TO PETITION A response to petition must be filed and served on the petitioner(s), (2) if you were served with the petition anywhere in Canada, within 21 days after service, (b) if you were served with the petition anywhere in the United States of America, within 35 days after that service, (c)__ if you were served with the petition anywhere else, within 49 days after that service, or (a) _ if the time for response has been set by order of the court, within that time. (1)___ [The address of the registry is: (2) __ | The ADDRESS FOR SERVICE of the Petitioner: Fax number address for service (if any) of the | Petitioner: Email address for service (if any) of the Petitioner: @) The name and office address of the Petitioner's, lawyer is: CLAIM OF THE PETITIONER(S) Part 1: ORDERS SOUGHT 1. Adeclaration that, by attending at the meeting of the Petitioner's Council held on October 12", 2016 (the “October 12, 2016 Council Meeting”), and participating in the discussion of and voting on the ‘motion [Item 1 under New Business, Motions & Notices of Motions], after previously declaring a conflict of interest on matters pertaining to the Foothills Development, the Respondent did not comply with Section 100(4) of the Community Charter and therefore contravened Section 100 (3) of the Community Charter 2. A declaration that, by attending at the meeting of the Petitioner's Council held on October 12", 2016 (the “October 12, 2016 Council Meeting”), and participating in the discussion of and voting on the motion [Item 1 under New Business, Motions & Notices of Motions] the Respondent contravened Section 101 (1) and (2) of the Community Charter10. ‘A declaration that the Respondent has a direct pecuniary interest pertaining to execution and ‘commencement of the Lantzville Nanaimo Water agreement, signed September 8'2014. A declaration that the Respondent has a direct pecuniary interest in matters pertaining to the Foothills Development. ‘A declaration that, by attending at the meeting of the Petitioner's Council held on September 12, 2016 (the “September 12, 2016 Council Meeting”), and participating in the discussion of and voting on motion C16-141, a motion to tender the construction of the Lantzville-Nanaimo water interconnection, the Respondent contravened Section 101 (1) and (2) of the Community Charter ‘A declaration that Respondent's vote on motion C16-141 is invalidated. Further, if the Respondent's vote is invalidated, the results of the motion C16-141, from September 12, 2016, are materially altered to result in a tie vote as the Respondent participated in a recorded vote which passed on a 4-3 decision, Motion C16-141 would then fail on a tie vote. A declaration that the Respondent is disqualified from holding office pursuant to section 101(3), 108.1, and 111(6)(b) of the Community Charter; ‘A declaration that the office held by the Respondent on the Lantzville municipal Council is vacant pursuant to section 111(6)(c) of the Community Charter. ‘The Petitioner's recover the costs of the within proceedings from the Respondent; and Such further and other relief that the Honourable Court deems just. Part 2: FACTUAL BASIS i The Petitioners are residents of the municipality of Lantzville. A municipal corporation under the Local Government Act, R.S.8.C. 1996, C. 323, and the Community Charter, and has a business office at 7192 Lantzville Road, BC, VOR2HO ‘On August 8, 2015, the Respondent was elected to the office of Lantzville's Council to serve as a Councillor. (On August 31, 2015 the Respondent swore to the Province of British Columbia Councillor Oath of Office. At all times material to this Petition, the Respondent has owned property at 7401 Aulds Road - a property within the municipality of Lantzville’s territorial jurisdiction. A property adjacent to the Foothills Development.4 Lone Tree Properties Ltd (Lone Tree) is a wholly owned subsidiary of Storm Mountain Development Corporation and is responsible for the development of the Foothills Lands. Said development project is commonly referred to as "The Foothills" or "Foothills". The Respondent has publicly declared intention to subdivide his property. The Respondent has authorized Lone Tree Properties to act on his behalf for the purpose of subdividing his land in conjunction with that of Lone Tree Properties. Lone Tree Properties has agreed to service the Respondent's lands with roads, water and sanitation hook ups. Lone Tree Properties will be the recipient of water connections available once Lantzville commences the Lantaville-Nanaimo water agreement. ‘The Respondent was previously employed by Lone Tree Properties. The most recent employment was a 6 month term that ended June 30, 2015. Potential conflict on Oct 12/Nov 14 not stepping out on previous declarations 10. 1. 12. ‘At the meeting of the Petitioner's Council held on January 25, 2016 (the “January 25, 2016 Regular Council Meeting”), the Respondent declared that pursuant to section 100 of the Community Charter that he was unable to speak or vote on the next items as he owns property adjacent to subject property and The Foothills development. The minutes of the January 25, 2016 Regular Council meeting show that the Respondent immediately left the meeting at 7:50 PM. Two motions were handled in Council chambers at that time: 1) a development permit, and 2) A request for a staff update, at the February 10, 2016 council meeting, on the Foothills Phase 1 subdivision application, including Schedules A, 8, and C and water implications as noted in the Development Agreement. Once these two motions were voted on, the Respondent returned to the meeting at 8:10 PM ‘At the regular meeting of the Petitioner's Council held on February 10th, 2016, agenda item 7.a) pertained to the Foothills Phase 1 Subdivision Application Update. This item appeared on the agenda from a motion originating at the January 25, 2016 Regular Meeting. At the February 10, 2016 Regular Meeting, the Respondent declared that pursuant to section 100 of the Community Charter that he was unable to speak or vote on the next items as he owns property adjacent to subject property. The minutes of the February 10, 2016 Regular Meeting show that the Respondent immediately left the meeting at 8:20 PM. Council received the information from staff. The Respondent returned to the meeting at 8:25 PM. ‘At the regular meeting of the Petitioner’s Council held on September 19, 2016, a Notice of Motion was submitted pertaining to Lone Tree Properties Subdivision Application Water Connection. This notice was submitted for inclusion in the October 12, 2016 regular meeting. This notice gave adequate time2B. 14, 15, 16. v7. 18, 19. 5 for Councillors to consider if there was a conflict position on the motion to be considered on October 12, 2016. At the meeting of the Petitioner’s Council held on October 12, 2016, agenda item 9.a) pertained to the Foothills Phase 1 Subdivision Application Water Connection. The Respondent attended at the October 112, 2016 Regular Meeting of the Petitioner's Council, and participated in the discussion of and voted on the motion. The Respondent did not declare a conflict of interest pursuant to Section 100 of the Community Charter as the Respondent had previously done on previous matters pertaining to the Foothills Development. The Respondent owned property adjacent to The Foothills development at the time of this motion. The motion failed on a recorded 3-4 vote. The Respondent voted against the motion. At the meeting of the Petitioner's Council held on November 14, 2016, agenda item 9.c) pertained to the release of the Foothills Phase 1 Subdivision Application to the public. The Respondent declared that pursuant to section 100 of the Community Charter that he was unable to speak or vote on the next items as he owns property adjacent to subject property and The Foothills development. ‘At the Novernber 14, 2016 regular meeting of Council, the Respondent participated in a discussion regarding the “Interpretation and Administration of ‘District of Lantzville Subdivision and Development Bylaw No. 55, 2005, Amendment Bylaw No. 55.1, 2006’ and ‘District of Lantzville Policy No. 3007-3” ‘A motion was made on the floor on this topic. The Respondent voted on this motion. Subsequent to declaring a conflict of interest on matters pertaining to the Foothills Development, the Respondent has participated and voted on Council motions to seek timely policy and legal advice in relation to the Foothills Development, including the applicability and effectiveness of Bylaw 55.1 as it relates to water supply to properties outside of the comprehensive development zone, including the Respondent's property. The respondent did not provide a legal opinion to rejoin discussions pertaining to the Foothills Development, and in doing so, may not have complied with 100(4) of the Community Charter and therefore may have violated Section 100(3) of the Community Charter. This sequence of declarations, and non-declarations, during the course of 2016 would create confusion for a reasonable person and questions as to what matter Councillor Colclough was indeed declaring a conflict on. Per the January 25, 2016 “he was unable to speak or vote on the next items as he owns property adjacent to subject property and The Foothills development”. The Respondents continues to live adjacent to The Foothills development, a reasonable person would assume that a conflict position would still exist regarding The Foothills Development “matter”.Potential conflict on the Foothills: 20. The Respondent worked for the Foothills Estates Inc. Bankruptcy documents show the Respondent as an unsecured creditor whom is owed $127,048. This may colour the Respondent's perspective of the Foothills. 21. The Respondent has significant insider knowledge of this development project. 22. A significant number of individuals and companies have significant amounts of unpaid invoices from the last chapter of the Foothills Development - work many of them did under the Respondent's instructions in his executive role in that chapter of the project. It is unclear how the Respondent's role ‘on Council may motivate him or various individuals / companies to act on any number of issues. 23. As noted in the September 2015, Storm Mountain Letter: The Foothills has a panhandle piece of land that is somewhat isolated from Harwood/Aulds Road by the parcel owned by Tavenders — and it is adjacent to the Respondent's property. In the last chapter, a co-development agreement was development with the Tavenders and Foothills Estates to provide water and pay for servicing work for all the parcels involved. When the current developer (Storm Mtn / Lone Tree) took over, they revitalized the co-development agreement and it was expected to be signed and implemented. Tavenders ultimately backed out and both Foothills and the Respondent worked to to try to get them back to the table in 2014/2015 — but were unsuccessful. Tavenders want Foothills or someone else to buy their property. The Respondent searched and found an interested party for Foothills — who are in active discussions / proposal review for a co-development agreement that is very similar to the original one — including envisioning the Respondent as a full partner in the development.” 24. A revised subdivision application was submitted to the District of Lantzville offices on October 25, 2016 with William Colclough as a partner in the development. Full details of this application are under request through an FOI request at this time, as the District of Lantzville, as of November 2016 declared the development applications were protected under the Freedom of Information and Protection of Privacy Act, and therefore would not be made publicly available without an FOI request. 25. Roads and servicing for a portion of the Foothills project are through the Respondent's property. As noted in the September 15, 2015 Storm Mountain Letter: in alignment with the original / current co- development agreement, the Respondent oversaw the construction of a road from Harwood across land owned by Tavenders to a panhandle piece of land owned by Foothills. The Respondent had the road built to curve into a corner of his personal land that is adjacent to both properties, to enable it to be serviced by the infrastructure for the Foothills panhandle parcel. This road exists today — and to change the road location would cost significant additional investment for no reason other than to “miss the Respondent's property” — and therefore any involvement of the Tavender property in the Foothills process (including having it as the entrance alignment noted above) would almost guarantee direct servicing of his land and a significant financial gain for the Respondent.26. 27. ‘The Respondent was retained to work on the Foothills project for 6 months in 2015 in a wide range of roles — including review and re-statement of information from that past that is relevant to the current chapter of the project, site works management, research, financial advice, community consultation assistance, and many other roles. ‘The Respondent's contract was not renewed with the Foothills. Storm mountain notes ‘the investor ‘group instructed Storm Mtn / Lone Tree team to release the Respondent from his contract in June due to concerns of conflict of interest and his management style of construction related issues from the original chapter. The Respondent expressed some negative emotions regarding this release — creating. for “bias” in any number of issues that may arise’ Co-Development agreement between The Foothills Development and The Respondent 28. 29, 30. 31. The Foothills has a document on file with the District of Lantzville as part of their November 2015 Phase 1 Subdivision application. The document is titled: "The Foothills Neighbourhood - Phase 1 Subdivision Application Report". Within this report, there is a section entitled "Description of site plan elements". Within this section there is a subsection entitled “Colclough Property”. The “Colclough property” subsection notes the following: “"1) a co-development agreement has been created between Lone Tree and Bob Colclough, an owner of the adjacent parcel of land to the panhandle, 2) Colclough has authorized Lone Tree to act on his behalf for the purpose of subdividing his land in conjunction with that of Lone Tree, 3) Lone Tree has agreed to service the 'Colclough’ lands with roads, water, and sanitation hook ups.” The District of Lantzville adopted Bylaw 55.1 "A Bylaw to amend District of Lantzville Subdivision and Development Bylaw No 55, 2005” on November 14, 2006. Bylaw 55.1 contains schedule C - Standards for Water Distribution Systems. Item 9.2 in this Bylaw states “if a connection to the Municipal water system is not available, confirmation is required from a Professional Engineer that each new lot has the capacity to supply 3400 litres (748 gallons) of drinking water (that meets the Drinking Water Protection Regulation) per day from a well. Each newly created lot as well must be serviced only and solely by a well located within the boundaries of the newly created parcel. Each well on each newly created parcel must meet Lantzville’s water provision standards.” One interpretation of Bylaw 55.1 is that Lone Tree properties cannot service the ‘Colclough Lands’ with water as was noted in the “Colclough Property” subsection of the The Foothills Neighbourhood - Phase 1 Subdivision Application Report. The District of Lantzville has two occurrences over the history of the municipality where provision of water, such as the Foothills is proposing with the Respondent's property, was denied,32. At the meeting of the Petitioner's Council held on October 12, 2016, agenda item 9.a) pertained to the Foothills Phase 1 Subdivision Application Water Connection. The Respondent attended at the October 12, 2016 Regular Meeting of the Petitioner’s Council, and participated in the discussion of and voted fon the motion. The content of the motion requested staff information on the legality of Lone Tree Properties providing water to the Respondent's property. Property of which Lone Tree has been authorized by the Respondent to act as agent. Property to which Lone Tree Properties would be providing water. A provision which may be disallowed by District of Lantzville Bylaw 55.1. The motion failed on a recorded 3-4 vote. The Respondent voted against the motion. 33. As of October 25, 2016 The Foothills development have re-submitted a revised development application. Interpretation of Bylaw 55.1 becomes critical at this point as current interpretation by current staff differs from prior staff and intent of the bylaw. Changes made to the bylaw after submission of the development application may not apply to the current application on file. 34. Despite a Council motion being defeated on obtaining a staff report regarding bylaw 55.1, District of Lantzville staff created a memo on Bylaw 55.1 on November 9, 2016. This memo was created two weeks after submission of the revised Foothills Subdivision application. This memo was not a legal pinion, but rather an interpretation by the interim CAO. The interpretation by the interim CAO differs from previous staff members at the District how the Bylaw had been applied to two previous development applications within the municipality. This has resulted in possible legal risk for the District as there may be two differing interpretations of how Bylaw 55.1 should be applied. Potential Conflict with the Lantzville/Nanaimo Water Agreement 35. Given that water may not be provided to the Respondents land via the co-development agreement with the Foothils, there are two options for water supply: 1) wells on each property, or 2) the district obtaining additional water from which a municipal water connection may be offered. The District of Lantzville's Water Supply & Connection Policy notes that “no new water connections or extensions to the municipal water system are permitted until adequate water supply for the District is developed” Therefore, at the current time the Respondent may be unable to obtain water from the municipal water system. A reasonable person might assume that commencement of the Nanaimo water agreement could provide the Respondent with the necessary water connections required for subdivision. 36. The Petitioners have considered the common interest and whether the Respondent shares a common interest with electors by reviewing the Lantzville Nanaimo water agreement, OCP Water Service Area — Map 7, OCP Land Use Designation ~ Map 4, DOL Zoning Bylaw No 60, 2005 ~ Map, DOL Sewer Phasing Boundaries, Zoning Bylaw No.60, 2005, and the Lantzville OCP ~ Bylaw No. 50. A total of four properties can benefit immediately from execution of the Lantzville Nanaimo water agreement. Other9 properties are located in Lower Lantzville, do not have access to municipal sewer, and require 2 successful local service area vote to receive municipal water. Details of Lantzville/Nanaimo Water Agreement 37, 38. 39. 40. 41. 42. 43. On September 8, 2014 Lantzville signed an agreement with Nanaimo for provision of water from Nanaimo to Lantzville. The agreement is currently signed but has not been commenced. Key facets of the water agreement are: 1) water to be supplied to Upper Lantzville only, 2) there are 225 connections available to premises in Upper Lantzville currently connected to the Lantzville Water System, 3) there are 211 additional connections available to premises in Upper Lantzville service by wells and not currently connected to the Lantzville Water , and 4) 50 additional connections avaitable per year in Upper Lantzville as a result of new development. These SO connections accumulate if not utilized in a year. The District has not put into policy how the 50 connections for new development will be allocated. ‘There is a reference to how they may be allocated from the October 2014 Special Edition Community Update: Lantzville/Nanaimo Water Agreement. The update states “that 16 connections per year may be allocated to the Foothills development; 6 connections may be allocated to Lantzville Projects Ltd, and the remaining 28 connections will be made available on a first-come-first-serve bases, per Council Policy No. 3007-3.” ‘This creates the potential that the Respondent is advancing the Lantzville-Nanaimo water agreement, which will ultimately provide water connections to the Foothills Development, whom are acting on the Respondent's behalf to develop his lands in conjunction with the Foothills Per Lantzville Policy No 3007-3, developers must supply their own water. From the policy “will require new subdivision proposals to develop a new water source adequate for the proposed development to standards satisfactory to the District of Lantzville, and dedicate that source and related infrastructure to the municipality.” Presently only one well from the Foothills Development has been identified and accepted by the District of Lantzville. This well produces 56 gpm, enough for 108 homes based on Lantaville current water standard of 3400 I/day per unit. In order to meet the target build out of 730 homes, based on the sign and registered 219 covenant, the Foothills development needs to locate a substantial amount of water either: a) through additional wells or, b) anexternal water supply. Which at this time is the Lantzville-Nan: 10 water agreement.10 Altering Lantzville’s water standard: 4, 45, 46. At the meeting of the Petitioner's Council held on January 11, 2016 the Respondent made a motion during the meeting requesting a staff report outlining the rationale, options and a recommended per connection water volume requirement for single family dwellings. The motion requested the report be presented to Council on or before the May 25, 2016 regularly scheduled meeting. The Respondent participated in this vote. ‘At the meeting of the Petitioner's Council held on May 25, 2016 staff presented the report and a motion (C16-101) was made following the recornmendation from staff. The recommendation was that 1no further changes were to be made to the water connection standards until a number of conditions had been met. The motion passed on a recorded 5-2 vote. The Respondent voted against this motion. Of note from a conflict perspective, lowering the water standard could be viewed as advantageous to developers since it would require less water allocated per connection. Therefore, for a well yielding X, more connections would be permitted by the District by having a lower water standard. Given the Foothills had a development application in progress at the time of this motion, the lower water standard would be a very timely adjustment for them. Given the existence at the time of a co- development agreement between the Foothills and the Respondent, a lower water standard may have also benefited the Respondent directly. At the least, it would have been advantageous for the Foothills by having a lower standard available, 2 move that was being advanced by 2 member of Council, who was in a co-development agreement with the Foothills at the time. Lantzville/Nanaimo Water Interconnection: 47, 48, 49, 50. The Respondent and one other Councillor requested a special meeting of Council to consider tendering of the Lantzville Nanaimo water connection. The special meeting of Council was held on August 3" 2016. A motion as brought forward at this meeting to instruct staff to commence the tender process for constructing the Lantzville-Nanaimo water interconnection. This water interconnection is the main pipe that will connect Lantzville's water system with Nanaimo’s water system. It is a required piece of infrastructure in order to commence the signed water agreement in place between Lantzville and Nanaimo. The motion at this meeting was deferred until the September 12, 2016 regular Council meeting, At the regular meeting of the Petitioner's Council held on September 12, 2016, motion C16-141 carried on a recorded 4-3 vote. The Respondent participated in the discussions and voted in favour of the ‘motion. If the Respondent had not participated in the vote, the motion would have failed 3-3 on a tie vote. This action has a significant impact on moving commencement of the Lantzville Nanaimo water agreement forward, along with spending substantial resident funds on constructing the Lantzville Nanaimo water interconnection.1 September 2015 Storm Mountain Letter: si. 52. ‘The September 2015 letter from Mark Holland, VP of Development for Storm Mountain Developments raises some concerns pertaining to potential pecuniary conflicts of interest. There are many points raised within this letter that would certainly impact the viewpoint of a reasonable person and give rise to questioning whether the economic self-interest of the Respondent may be conflicting with their public duty. ‘Aulds Road Reservoir: 53. 55. 56. 57, One of the District of Lantzville’s two water reservoirs is located on the Respondent's property at 7401 ‘Aulds Road. The District of Lantzville has a statutory right of way and easement registered on title of the Respondent's property securing its use of the property for the reservoir. If the reservoir is relocated off the Respondent's property, the District would have to discharge the statutory right of way and easement from title of the property. This reservoir is slated for replacement. A motion was passed in 2015 to begin design of the reservoir, with a scheduled replacement in 2016, but staff delayed this work until 2018. Staff noted the project may not be necessary as Lone Tree Properties will be required to provide a reservoir that the District will incorporate into the existing system. At the regular meeting of the Petitioner's Council held on October 24, 2016, Item 2 under New Business pertained to the Aulds Road Reservoir Replacement. Information was requested from staff or a) The status of the Aulds Road Reservoir Replacement b) How it will be funded c) Where it will be located This motion fi on the motion. sd on a recorded 2-4 vote. The Respondent participated in the discussion and voted A reasonable person would assume that any sequence of events or decision making steps pertaining to the Aulds Road Reservoir, and any decision/steps relating to the discharge of the statutory right of way and easement from the Respondent's property would create potential pecuniary interests for the Respondent.2 Part 3: LEGAL BASIS 1. Pursuant to section 100 of the Community Charter, members of the Petitioner's Council who have a conflict of ferest are not permitted to participate in the discussion of a matter or vote on a question in respect of a matter before the Petitioner's Council. Section 100 provides as follows: "100 (1) This section applies to council members in relation to (2) councit meetings, (b) council committee meetings, and (c) meetings of any other body referred to in section 93 [application of open meeting rules to other bodies}. (2) if a council member attending a meeting considers that he or she is not entitled to participate in the discussion of a matter, or to vote on a question in respect of a matter, because the member has (a) a direct or indirect pecuniary interest in the matter, or (b) another interest in the matter that constitutes a conflict of interest, the member must declare this and state in general terms the reason why the member considers this to be the case. (3) After making a declaration under subsection (2), the council member must not do anything referred to in section 101 (2) [restrictions on participation]." (4) As an exception to subsection (3), if a council member has made a declaration Under subsection (2) and, after receiving legal advice on the issue, determines that he or she was wrong respecting his or her entitlement to participate in respect of the matter, the member may (2) return to the meeting or attend another meeting of the same body, (b) withdraw the declaration by stating in general terms the basis on which the member has determined that he or she is entitled to participate, and (C) after this, participate and vote in relation to the matter 2. Pursuant to section 100(4) of the Community Charter, if a Council member has previously declared conflict of interest under subsection (2), they may return to discussions on a matter after receiving legal advice following the gu 1es under 100(4).3B 3. Pursuant to section 101(1) and (2) of the Community Charter, if a member of the Petitioner's Council does have a direct or indirect pecuniary interest in a matter, the member is prohibited from attending meetings, and participating in the discussion of a matter or voting on a question in respect of the matter regardless of whether the member has declared the conflict of interest, and is disqualified if the member contravenes any of the foregoing prohibitions. Pursuant to section 101(3) and 108.1of the Community Charter, if a member contravenes any of the prohibitions under section 101, the member is disqualified from holding office until the next general local election unless the member can establish that certain exceptions or defences are applicable. Section 101 and 108.1 provides as follows: “101 (1) This section applies if a council member has a direct or indirect pecuniary interest in ‘a matter, whether or not the member has made a declaration under section 100. (2) The council member must not (a) remain or attend at any part of a meeting referred to in section 100 (1) during which the matter is under consideration, {(b) participate in any discussion of the matter at such a meeting, (c} vote on a question in respect of the matter at such @ meeting, or (d) attempt in any way, whether before, during or after such a meeting, to influence the voting on any question in respect of the matter. (3) A person who contravenes this section is disqualified from holding an office described in, and for the period established by, section 108.1... 108.1 A person disqualified from holding office under this Division is disqualified from holding office (a) ona local government, (b) on the council of the City of Vancouver or on the Park Board established under section 485 of the Vancouver Charter, or (c) asa trustee under the Islands Trust Act until the next general local election.”14 4, Itis the understanding of the petitioner(s): case law makes it clear that having a conflict of interest is not a matter of degree, or how blatant the conflict is. The emphasis is on what a reasonable person would think, and what public perception is about the administration of the local government. The desired result is to maintain public confidence by promoting transparency and ensuring that elected local government bodies are free from impropriety. 5. Itis the understanding of the petitioner(s): the reasonable person test is the litmus test on matters of conflict of interest. Would a reasonable person think it probable or likely that the Respondent would favour a particular position or outcome on a matter. 6. Conflict of interest is concerned with appearances. The determination of a conflict of interest does not involve a subjective evaluation of the actual state of mind of the member of the Petitioner's Council. Rather, the existence of a conflict of interest is determined by evaluating whether a reasonable person with knowledge of all the facts would likely believe that a person in the member's circumstances may be influenced by his/her personal interests when participating in a public matter. 7. The courts evaluate the particular circumstances of each case and determine whether a reasonable person would be likely to conclude that the Council member's personal interests could have an influence on the member's conduct. 8. A conflict of interest arises when the personal interests of a member of the Petitioner's Council appear to conflict with the member's obligation to act in the best interests of the Petitioner's residents. The Supreme Court of Canada commented on the circumstances where an elected official will be disqualified from voting in Old St. Boniface Residents Association v. Winnipeg, [1991] 2W.W.R. 145, as follows: "It is not part of the job description that municipal councillors be personally interested in matters that come before them beyond the interest that they have in common with other citizens in the municipality. Where such an interest is found, both at common law and by statute, a member of council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty. This is commonly referred to as a conflict of interest.” 9. Areasonable person knowledgeable of the facts set out in this Petition would believe, on the basis of the Respondent's own actions, that they violated Section 100(3) and 100(4) of the Community Charter by participating in a vote on a matter pertaining to Lone Tree Properties (The Foothills) when they have previously declared a conflict of interest. 10. A reasonable person knowledgeable of the facts set out in this Petition would believe, that the Respondent might be motivated to execute the Nanaimo water agreement as it: 1) may provide water to the Respondents property, thereby facilitating subdivision, 2) may provide water to Lone ‘Tree Properties, which in turn are attempting to provide water to the ‘Colclough Lands’15 11. A reasonable person knowledgeable of the facts set out in this Petition would believe, that there is limited common interest for properties in the community that whose ability to subdivide would benefit immediately based on property size, location in Upper vs Lower Lantzville, zoning bylaws, property zoning designations, municipal sewer availability, and the Official Community Plan, 12. A reasonable person knowledgeable of the facts set out in this Petition would believe, that the Respondent might be motivated in discussions and decision-making in relation to the advancing the execution of the Lantzville Nanaimo water agreement by the potential of improved ability for obtaining water connections necessary to subdivide either: 1) either directly through the municipality, or 2) through the Foothills who would obtain some portion of the 50 accumulating connections, then possibly attempt to provide the Colclough lands through the co-development agreement. 13. In the circumstances, the Respondent had a conflict of interest in relation to the Nanaimo water agreement at the time the Respondent participated in discussion of and voting on motions pertaining to this matter. 14. In the circumstances, the Respondent had a conflict of interest in relation to the Foothills at the time the Respondent participated in discussion of and voting on motions pertaining to this matter. 15. By participating in the discussion of and voting on matters of which their existed a pecuniary conflict of interest, and by not adhering to Section 100(4) of the Community Charter once a conflict had been declared, the Respondent contravened section 101(1) and 101(2) of the Community Charter and is disqualified from holding office.Part 4: MATERIAL TO BE RELIED ON 16 1, Affidavit No. 1 of Raymond Farmer, sworn on November 24, 2016; The Petitioner estimates that the hearing of the Petition will take one day. Ct [dd/mmm/yyyy] Mos 2 ¢Zope [dd/mmm/yyyy] PSH fle D vad | (litte fapfre of Raymond Farmer — Petitioner Signature of Ryan Farmer - Petitioner y X Nh Sao [dd/mmm/yyyy] Signature of Ken Jackson - Petitioner Nev 25/20! [dd/mmm/Yyyy) Signature of Patrick Petreman - Petitioner LYLLKON [aofmnyh/yyvy] Signature of Doug Blakey — Petitioner asly [aot Be [dd/mmm/yyyy] ‘Signature of David Briggs — Petitioner- v7 / Zh A Nov / Zo (@ [dd/mmm/yyvy} eae New /2U6 Dena $B [dd/mmm/yyyy] Signature pf Hans Larsen - Petitioner Ay footte [dd/minm/yyyy] Javid Thomas Coulson - Petitioner 24a [oot | {dd/meen/ yyy] @gnature of Joan Coulson - Petitioner18 2sJufzaib Al. N casein be {dd/mmm/yyyy] Signature of Ann Marment — Petitioner WNW Joie = {dd/mmm/yyyy] Signature of Roger Marment — Pétitioner To be completed by the court only: Order made a in the terms requested in paragraphs of Part 1 of this Petition o with the following variations and additional terms: Dated: {dd/mm/yyyy] Signature of c Judge 0 Master