To use the garage he plans to construct on his Gleneden property, Ken Stewart must first agree to a city requirement he did not anticipate.
Wanting a place to store his prized Camaro over the winter, Stewart began the permit process with the City of Salmon Arm so that he may build a garage on his five-acre property at 60th Street and 10th Avenue NW. Stewart said one week after paying for the permit application, he received an unexpected ask from the City of Salmon Arm in the form of a Section 219 Wildfire Interface Covenant that he was told would have to be registered on the title of his property prior to occupancy. Of concern for Stewart is language in the covenant that protects the city from legal action.
The document states the “Transferor” (Stewart) is aware the “Transferee” (the City) “may not be able to prevent the spread of any fire and… agrees not to claim or attempt to claim damages from the Transferee should any buildings, structures, equipment or other items be damaged as a result of fire.” Furthermore, the Transferor indemnifies the city “from any and all claims, causes of action, loss or suits of whatever nature or kind including, without limitation, claims for property damage, personal injury or death arising out of or in any way connected with the fire hazard existing on the Transferor’s land.”
Stewart said registering the covenant will cost between $600 and $900.
“I’m not going to sue – what are the chances of this being anything other than an act of God, and you can’t sue for that,” said Stewart, who has been reluctant to complete the covenant, as is required, with a notary or lawyer. “I never even thought about that. I think it’s more insurance companies might come after them or something like that.”
Stewart has been busy informing his neighbours of the covenant requirement.
“It is an expensive and untimely fee,” reads a notice being distributed by Stewart. “If you do not comply, by giving up your right to sue the city… your permit will not be issued.”
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“It seems that it’s a heck of a coincidence that this whole fire just happened here – they’re very concerned and I can appreciate that,” said Stewart, adding there isn’t a fire hydrant near his residence.
However, city planning and community services director Gary Buxton explained there is no coincidence. He said the covenant requirement has been in place since at least 2011, and is included in section 6.3.6 of the city’s official community plan:
“In consideration of potential wildfire, lands outside the Urban Containment Boundary… will be required, as a condition of subdivision approval or issuance of a building permit, to register a Land Title Act s. 219 restrictive covenant on title.”
Buxton said the covenant is essentially a risk management tool and applies only to new development or construction outside the city’s urban containment boundary.
“I’ve been here six months and I bet I’ve signed six to eight of them…,” said Buxton. “It notifies the owner that we’re all acknowledging a heightened risk of wildfires in these areas outside the urban containment boundary. Mostly because of tree cover and in many cases lack of hydrant coverage. It requires the owner to manage that risk and to manage vegetation on their property. And it also indemnifies the city in case there is an event – we all agree that we’re not going to sue each other.”
Regarding cost, Buxton explained the city provides the covenant agreement without charge. The cost comes with the lawyer or notary.
“We don’t know what notaries and legal people charge to register these documents,” said Buxton. “I don’t believe the registration costs on title are significant, but if your notary is saying to do this I’m going to charge you X, the city doesn’t control X…
“We charge for the building permit or the development permit that results in the covenant. Yes, those fees are in the fee schedule, but there is no surcharge or additional charge for the covenant other than what your notary or legal counsel would charge to affect that work.”
Buxton said there are notifications in the permit guide that say the covenant may be required. He said the requirement can be difficult to catch by front counter staff while processing fees and taking the applications.
“Sometimes you get your application in and you get the call or email that says you are going to need to affect this covenant,” said Buxton. “It’s just very difficult for us to try and catch that without sort of processing the application as you wait at the counter.”
Stewart said he’s contacted the B.C. Ombudsperson’s office about the matter. He’s also written the city, stating that “forcing a taxpayer to add a covenant to his or her Property Title by holding a permit application ‘hostage’, I, and now several others, are concerned as to how our City and its Council conduct business on our behalf.”
“Everybody I’ve spoken to, well over a dozen people, said ‘Ken, this is a good fight’,” said Stewart.
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