902 Foul Bay Litigation Defence

We need your support to help protect the character and tree canopy in our  Gonzales community.  Many pedestrians and cyclists share our love for the wonderful mature trees in our neighbourhood which would be forever diminished by a proposed development at 902 Foul Bay Road–bounded by Quamichan and Redfern Streets.  While we welcome development and densification, there is no reason why it cannot be respectful and in harmony with our community.

Aryze Developments Inc. is planning to build an extensive 18-townhouse complex on this single-family, heritage-designated site.  The lot is a beautiful Garry oak meadow upon which a heritage home used to sit until it was lost to fire while owned by a previous developer.   Aryze proposes to remove 27 trees including two large heritage Beech and 60% of the protected Garry Oaks. The mature trees are not only beautiful—they play a significant role in climate change by sequestering carbon, storing water during heavy rain events, and cooling the earth.  They also provide food and housing for countless birds, mammals, and pollinators.  The City will not protect these trees notwithstanding its "protected trees" bylaw and the mayor's stated policy to make trees a priority.  It seems that densification is paramount. The Aryze proposal also provides limited onsite parking:  which will impose street congestion and hazardous traffic flow  on what is currently a safe, pedestrian-friendly street. The project is being marketed as "affordable housing" yet a minimum combined family income of  $ 155,000 will be required to qualify which is at least double  the amount stated in  City of Victoria's approved policy on Affordable Housing.

There is a legal restricted-use clause registered on the property (“restrictive covenant”), which prohibits the construction  of anything other than a private dwelling (single family home).  Aryze, through its investment partner, has started a legal action by way of a Petition  (law suit) against over 100 neighbours, in the Supreme Court to remove the restrictive covenant.  Only 12 were actually named and some of them personally served. The others were "notified"  via an advertisement in two free newspapers, and that advertisement did not identify street addresses, or specify the details of the covenant.

Some of our neighbours have hired a lawyer to stand up to this developer's conduct, and are opposing the removal of the covenant, in order to stop a development not in keeping with the current character and zoning of our neighbourhood.  

The group’s  legal Counsel legal counsel filed a Response to the Aryze Petition (law suit).  The following are paragraphs from the Response and contain allegations  yet to be proven in court.  A portion is reprinted below: 

"A representative of Aryze accompanied the process server when serving the respondents with the Petition materials. Immediately after service he provided each Respondent with a letter which purported to "put together a question and
answer sheet to assist you in your review of the legal notice being delivered to you by our legal representatives..." (*the "Aryze Letter").

9.           The Aryze Letter contained the following misleading information:

(a)        that the Petitioner is "look[ing] to the courts for resolution" due to the ambiguity of the phrase "private dwelling" in the Covenant;

(b)        that "if the property owners decide to pursue legal action to oppose this discharge, and we are successful in the removal through the Courts, we will be seeking legal compensation from those opposing property owners due to the added costs of additional court processes".

The Manner in which this Petition has Been Brought

58        The Petition Respondents state that this Petition has not been brought in a good faith manner on the part of the Petitioner.

59          Based on the manner in which this Petition has been brought, the Petition Respondents state that this matter should be dismissed in its  entirety.

60          This Petition has essentially been an attempt to have the covenant removed  with as little opposition as possible. In doing so, the Petitioner has served as  few respondents as possible, while choosing the most ineffective means of substituted service that it could.

61          Though it had the blessing of the Court for its manner of service, the  advertisement placed by the Petitioner was vague to the point that one   would not have known that the Covenant applied to them unless they knew the number and details of the covenant registered against their own property as well as the details of the Covenant set out in the advertisement.

62          Despite claiming in its Petition that personal service was "impractical" the Petitioner had the time and resources to send a representative along with the process server in order to deliver the Aryze Letter to the named Respondents.

63          The Respondents submit that the purpose of the Aryze letter was two-fold:

                    (a)          to downplay the significance of the Petition and what Aryze was seeking   to do with the Covenant; and,

                    (b)          threaten the Respondents with possible financial repercussions should they oppose the removal of  the         covenant and lose.

68.            The Respondents submit that the Aryze letter was designed in bad faith to inappropriately suppress opposition to the Petition, and for that reason, and the reasons enumerated in this Response, the Petition should be dismissed."

(* Note: The "Aryze letter" also informed those parties served with the Petition that they were not sued, and that obtaining a lawyer for legal advice was not "ideal.")


If you love our beautiful, treed and charming neighbourhood,
and want to stand with your neighbours fight  against oppressive conduct,
you can help by contributing funds to help finance this defence.

You can contribute directly by e-transfer to the mail address below or
to Alan Loomer.

 
For more information please contact:

Alan Loomer

‭(250) 592-1934‬

1949 Quamichan St.

alanloomer -at -gmail.com


Donations

  • Elizabeth Peddie 
    • $100 (Offline)
    • 19 hrs
  • Anonymous 
    • $1,500 (Offline)
    • 2 d
  • Tina T 
    • $200 
    • 3 d
  • Anonymous 
    • $500 (Offline)
    • 9 d
  • Carl Monk 
    • $2,000 (Offline)
    • 11 d
See all

Organizer and beneficiary

Peter Nadler 
Organizer
Victoria, BC
Alan Loomer 
Beneficiary
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