Zoning By-Law is too authoritarian.

The final Rural Zoning By-Law document, in Report PLAN2023-039, is set to be passed by Council with insufficient analysis and feedback from the City of Kawartha Lakes’ property owners.

My initial take.

Last night, I began by reading of the Final Rural Zoning By-Law. The consultation period for the Rural Zoning By-Law has been extended from September 1 until September 15 to allow for more public feedback on the new Rural Zoning By-law. Comments can be submitted directly to the project team at ruralzoningbylaw@kawarthalakes.ca

The following are my first reactions to the document.

Comments and questions.

Too one-sided.

The By-law defines the rules that empower the City of Kawartha Lakes to be applied to rural property owners. However, it fails on two key points. First, it does not acknowledge the property rights of those owners. Second, it fails to identify that the Canadian constitution is the “highest law of the land” and that the City is required to conduct its business within the rules defined in the Constitution Act, 1982. Of particular interest is the Charter of Rights and Freedoms. 

Individual citizens are protected by the Charter from excessive powers exercised by corporations and public institutions. The omission of this fact from this By-Law is a serious oversight and must be acknowledged clearly as a firm and consistent limitation to its authority.

‘Person’ definition

In section 3, Definitions, on page 33, “person means an individual, association, firm, partnership, corporation, trust, incorporated trust … or any other legal representatives of a person to whom the context can be applied by law”. This definition is unacceptable.

For the average rural resident who may have cause to refer to this Zoning document regarding a property issue, the term ‘person’ has always been associated with a single human individual.

A “boil the ocean” document.

The number of rules defined in the By-law seems excessive. Why do city planners and rule-makers feel it necessary to “boil the ocean” with a rule for nearly everything?

In an allegedly democratic society, where does Freedom of Informed Choice begin and end with respect to government authority and enforcement control. Specifically, how does Personal Responsibility, and the Individual Freedom upon which it depends, factor into By-laws like the one in question? How do the principles of Fairness and Respect guide the decisions that went into the creation of this document?

PROPERTY RIGHTS are never defined for individual property owners in By-laws like this. Why not?

Shared responsibility.

A few decades ago, the topic of public-private partnerships was widely discussed in the media and in public forums. The assumption was that these affiliations would be Fair and mutually Respectful to all stakeholders, including our citizens. Today, it seems that all property owners are the last people to be invited to the table which seems inappropriate since they are the stakeholder class that will be most impacted by policy decisions.

The meaning of ‘personal property’.

For the sake of this discussion, I describe my understanding of personal property and its significance to life and liberty in a civil society in the following statement:

All human beings have a fundamental right to survival. This was affirmed under the Legal Rights section of the Canadian Charter of Rights and Freedoms which states: “Everyone has the right to life, liberty and the security of the person not to be deprived thereof…”.

As such, every individual has the inherent right to defend and protect his or her person (ie mind, body and efforts) and property (i.e. capital assets earned or acquired legally by said ‘person’) from any intentional and unwanted harm and/or aggression imposed by others.

These “others” may include people employed by the public institutions or associated with any “collective” organization that acts to sway government policies to favour their own self-serving special interests at a cost to others. Such organizations may include religious organizations, business cartels, activist NGOs, labour unions or any other group organized for the purpose of forcing others to pay for their privileges and advantages.

Note that the Charter states its source of authority in the opening declaration:

Whereas Canada is founded on principles that recognize the supremacy of God and the rule of law:

Referencing the above, I suggest that our municipal government must exist to serve the constituents of the City of Kawartha Lakes in a fair and respectful partnership of shared responsibility.

To define those responsibilities, all CKL’s authorities and duties must be clearly defined with its limits identified in relation to the rights and freedoms of property owners. As it applies to the Zoning By-law, both parties will be better equipped to work in a cooperative and productive manner while considering the subject matter provided and the issue(s) at hand.

Governance by Direct Democracy.

Ideally, every legal documents (such as a Bylaw) must contain a prominent statement that  defines the rights, freedoms and responsibilities of all stakeholders under the constitutional framework of the Charter. An audit of Charter compliance must also become part of the standard process of creating new, or amending existing laws, by-laws and regulations. Failing to do so must render said documents invalid for failing to reference the authority of the Canadian Constitution to validate their powers of authority.

It’s well past the time that the Canadian Charter of Rights and Freedoms becomes a ‘living document’ that forms a foundation for all legal interactions between citizens and their governments. This should increasingly become integral to the governance culture and judicial framework within Canada in relation to “public-private partnerships” and pertaining to all related documents such as the By-law currently under consideration.

A failure to engage in good faith.

A copy was linked in an email message I received  on Friday August 31 from Kawartha Jump-In: Rural Zoning By-Law – Comment period. This link provides a chronology of key dates of the completed project milestones and events along with supporting documentation. Notice that the Final Draft was available in July 2023 and that constituents were allowed until September 1, 2023 review it and provide feedback.

In the recent Council meeting, final draft of the Rural Zoning By-Law comment period was extended until Friday, September 15, 2023. You can submit comments directly to the project team at ruralzoningbylaw@kawarthalakes.ca.

A group of attending concerned constituents of Kawartha Lakes feel that the two week extension is an insufficient period of time to alert enough constituents to review and absorb this document. It has been in development for 4 years with many hands from City staff and outside consultants taking part in its creation.

Concerned constituent Angel Godsoe, who presented a scheduled deputation to Council on August 29, requested a two month extension for feedback so that enough constituents could review and assess this 130+ page document. This seemed reasonable but was met with only a disappointing two week extension.

My Recommendations:

Rename the By-Law to “Rural Zoning Best Practices”.

In the spirit of a genuine public-private partnership between the City of Kawartha Lakes and its 78,000 residents, I propose that the City be transformed from an institution of rules enforcement to one that will function as a consulting services enterprise to offer expert advisory services to property owners.

Much work has been done to create what amounts to a compendium on best practices regarding rural zoning much of which represent the consolidation and updating of the 14 legacy zoning documents. This compendium is ready made to form the basis of an advisory service to help rural property owners receive the best property advice for their property assets. Their desired goals could be weighed in the balance of other community interests and goals to bring balance and perspective to the responsibility of property ownership with a community lens. This type of expert advisory work will be much more satisfying and beneficial to all stakeholders rather than City staff being bound to yes/no decisions defined by By-law rules that may not be relevant or appropriate to the property owners interests and freedom of informed choice.

A rural land use consulting services approach.

This new “consulting services model” for the City of Kawartha Lakes would best operate under a charter based on the Four Principles for a Civil Society referenced earlier.

All CKL departments responsible for the property services consulting operation can be organized around responsibilities set out in the Zoning document such that service delivery will effectively serve constituent property owners and the community at large.

Negotiations will be common, but not heavy-handed the way it is today in the era of strict rules enforcement.

Some services can be billable. Consulting services offered on a sliding scale fee schedule will help constituents to decide if the services offered are of sufficient value to justify the cost. The onus will be on the City to earn the reputation as a value-add enterprise whose rates are justified which is the way all consultancies operate and compete in every sector of the economy.

Over time, the CKL’s costs of labour and systems will adjust according to the level of success, or lack thereof, achieved from the services it offers. Of course, record-keeping with continue to be necessary and the costs associated will this essential service can continue to be tax funded if it continues to make sense.

Set expectations in a transparent and timely manner.

The first rule of successful consulting is to “set reasonable and realistic expectations”. For all future public legislation, I recommend that the highest ranking officer in charge of a project (like this four year Rural Zoning By-Law Consolidation undertaking) launch it with with explicit instructions to consultants, staff and all associated stakeholders as follows.

All project-related regulatory decisions must comply with the Canadian Constitution and, most importantly, the Canadian Charter of Rights and Freedoms. The finished product of all work efforts will be audited for this compliance before presentation to City Council for a vote.

‘Persons’ are individuals human beings.

Under Definitions of the Final Rural Zoning By-law Consolidation document, create a new one for the legal representatives of persons. For example, personal legal representatives is an obvious, unambiguous and straightforward definition which can identify the appropriate legal entities. 

Separate definitions for person and personal legal representatives is needed when an individual person, exclusive of his or her representatives, is referenced and protected within the frame of Constitutional Law.

Define and included PROPERTY RIGHTS.

The authors of the Canadian Charter of Rights and Freedoms omitted the inclusion of property rights alleging that these are adequately addressed in common law and that any definition of those rights would weaken the government’s case to seize private property when such seizure may be alleged to serve “the greater good” (an amorphous concept).

Again, in the spirit of a genuine and successful public-private partnership between the City of Kawartha Lakes and its constituent property owners, individual property rights must clearly defined and delineated in order to establish a firm and fair basis upon which the City and its constituents can engage cooperatively and productively within its jurisdiction.

Furthermore, this definition must be stated clearly and prominently in the City’s corporate charter and in all pertinent legal documents that it creates and enforces. I suggest that the first item in Section 1.3 Administration and Validity becomes the place where the Canadian Charter of Rights and Right is identified as the highest law in Canada and acknowledges that the Zoning document receives its validity from this law with the proviso that the City executes its defined responsibilities faithfully to the spirit and contents of the Charter.

Why is this necessary? Too many Canadians have lost their respect for, and their trust in elected lawmakers (politicians) and the leaders of unelected public institutions. The one-sided nature of this By-Law is typical, and explains why so many citizens feel helpless when they are forced to interact with government bodies. This reality will change only when the Canadian Charter of Rights and Freedoms in finally infused within our legal documents where it can stand guard to effectively defend and protect our 40 million inhabitants from overly zealous rule makers. Constituents must be make confident that their interests, concerns, priorities and rights are considered by any and all employees of the public service in the exercise of their decisions and duties. Enshrining the Charter to govern all public-private engagements is a first step down a long road to regain that trust and respect.

An opportunity for the CKL.

Especially in recent years, Canadians have been stung by institutional overreach exercised by government and corporate organizations. The CKL can take the lead to heal these injuries from those harms and aggressions by becoming the first municipality in Canada to create a genuine partnership with its constituents.

While it will be challenging to change its internal work culture, the City can reform and adapt its operations to foster mutual respect. It can begin to build a cooperative culture that secures Freedom of Informed Choice for everyone based on an ethic of fairness guided by unbiased or inflexible rules.

Embracing change is healthy for the City.

The Digital Economy is rapidly spreading across their land, and the world. If a billable consulting services operating model was adopted, productivity tools like Artificial Intelligence will be eagerly accepted to improve the quality and efficiency of those services.

Once accepted by City staff, they will be more productive will be sure to enjoy a shift in work emphasis from the drudgery of impersonal administrative tasks to the more satisfying work of creating “happy customers”. City employees will experience the difference between being a true value-added service organization for all of the City’s constituents rather that a staid and bureaucratic organization whose must frequently say “No” to customer requests. “No” comes from attempts to constantly control and police everyone according to an unwieldy sets of rules rather than facilitating more desirable possibilities and outcomes.

More to come.

I have just begun to review the Rural Zoning By-Law Final document and will likely have more to say in the days ahead leading up to the September 15, 2023 deadline for feedback.

I plan to attend a meeting tomorrow, Labour Day, with many of the concerned constituents who attended the recent City Council meeting. There are a surprising number of people who feel compelled to get a better understanding of the Final Rural Zoning By-law Consolidation document and its implications.

Note. The above photo is the cover page for the Final Rural Zoning By-law Consolidation report which is the subject of this essay and can be found in Kawartha Lakes Jumped In public notifications site hosted by the City of Kawartha Lakes.