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Transport Canada out of line in enforcing height restrictions in Comox Valley
After an extensive and no doubt expensive search, a new hospital site was chosen at Crown Isle, only to be shot down because of “height restrictions” in the vicinity of CFB Comox/YQQ.
As a result, the search and the wrangling continues.
But here’s the sad thing. Maybe the original Crown Isle site didn’t have to be rejected and maybe Transport Canada (TC) has overstepped its bounds in setting and enforcing height restrictions.
Transport Canada passed the Comox Airport Zoning Regulations under the authority of the federal Aeronautics Act in 1980 but we’ve heard little or nothing about them until quite recently.
The regulations set several “obstacle limitation surfaces.” Crown Isle falls within the “outer surface,” which has a maximum height of 45 metres from the “airport reference point” and extends outward in a four-kilometre radius from that point.
Because Crown Isle is on much higher ground than the airport, the maximum height for all objects is nine metres.
The regulations were designed to prevent overdevelopment near airports and, of course, no one wants planes flying into buildings or other objects.
However, planes have flown safely in the obstacle limitation surfaces both before and after 1980. Now it seems they can no longer fly safely unless everything within the four-kilometre radius is levelled to the height restrictions.
What no one is talking about is that the regulations do not apply to any objects and structures that already exceeded height restrictions at the time the regulations were passed. Zoning laws always “grandfather” existing non-conforming uses, and the Aeronautics Act s. 5.4(4) specifically states that such structures and objects are grandfathered.
Crown Isle didn’t exist in 1980 so one might think that nothing is grandfathered there. But the Aeronautics Act defines “objects” as “including objects of natural growth.” That means trees.
While the Crown Isle development did involve a lot of tree clearing, there are trees remaining that far exceed nine metres and far exceeded nine metres before 1980. Those trees are grandfathered.
Transport Canada is engaged in a project to remove all objects (mostly trees) penetrating obstacle limitation surfaces without giving any consideration to whether or not they have any legal right to do so. And while TC is responsible for the administration of the Aeronautics Act, they are not telling anyone about s. 5.4(4) of that Act.
I happen to know about this because TC has set its sights on a small forest at Cape Lazo above Kye Bay. This forest is home to an eagles nest (the original landmark blew down a few years ago, but the eagles have rebuilt) and a supposedly protected great blue heron colony plus a multitude of birds including hairy and pileated woodpeckers, barred and great horned owls, merlins and many others.
This mature forest (first and second growth) exceeded height restrictions in 1980 and is grandfathered. TC wants to ignore that fact.
Besides already having condos in violation and not being allowed to build a hospital, Crown Isle in theory is faced with cutting every tree down to a nine-metre height. But those trees are grandfathered, and a four- or six-storey hospital would fit well under the height of many of those trees that legally cannot be cut.
Transport Canada, in its infinite Ottawa-based wisdom, asserts the right to do the following:
1. Prevent a much-needed new hospital from being constructed on the site deemed most appropriate after an extensive investigation.
2. Destroy an already endangered Coastal Douglas Fir ecosystem that provides habitat for almost 20 per cent of the nesting pairs of great blue herons on Vancouver Island/Gulf Islands as well as for a variety of other species.
3. Lop off all Crown Isle trees at nine metres (give or take depending upon ground elevation).
4. Require the removal of the top level of some buildings.
We have already heard from Col. Benninger that removal of buildings is not expected. The Crown Isle and Cape Lazo trees are grandfathered. The proposed hospital would not exceed the height of the Crown Isle trees and those trees are likely to still be standing many years from now.
Logic and law demands that TC rethink this entire process.
And, yes, I do want to help the herons.