CRC COVENANTS APPENDIX E - FULL TEXT EXTRACTION

EMAIL CORRESPONDENCE - MARCH 1, 2023

From: Margaret Underhill & Brian Buckingham
To: BIMBC - Mayor And Council
Cc: Liam Edwards; Daniel Martin
Subject: CRC Covenants Appendix E
Date: March 1, 2023 1:48:10 PM
Attachments: Summary of Appendix E.docx, Revised Map - Proposed Park at CRC Showing Covenanted Areas.pdf

Mayor and Council, Firstly, thank you for a productive CoW Meeting on the Metro Parks rezoning application on Monday.

At that meeting, Councillor Gedye asked about Restrictive Covenants on the Cape Roger Curtis properties. We have had a long-time interest in the subject of covenants, and have reviewed and made notes on "Appendix E" - the compilation of Covenants, Easements, and Statutory Rights-of-Way submitted by Metro Parks as part of their re-zoning application.

While we are neither lawyers nor planners, we participated in a covenant trial project sponsored by the Bowen Island Conservancy and BIM a number of years ago, and became familiar with the process of researching, reading, and analyzing covenants.

In the interests of turning our notes into a document that might assist Council in their contemplation of the Metro Parks re-zoning application, we have compiled a summary of what we feel are the significant documents from the 608-page Appendix E. This summary is attached, and includes a few personal observations on various points.

Also attached is an easier-to-understand version of the map submitted by Metro Parks, showing the Restrictive Environmental Covenant areas as they relate to the proposed campsites. On the original "mail-out" version of the map, we found it very difficult to see these covenant areas, as the only distinguishing feature was tiny black dots and a thin black border around these areas. We have inserted darker backgrounds in these areas, to make it easier to see them relative to the proposed campsites and other features.

Hope this is helpful!

Margaret Underhill & Brian Buckingham

SUMMARY OF APPENDIX E – EASEMENTS, COVENANTS, AND STATUTORY RIGHTS-OF-WAY – CRC

This summary provides details on items of significant interest in Appendix E – restrictive covenants, easements, etc. that are beneficial to Bowen Island Municipality. Appendix E includes Covenants (environmental, archeological, etc.), Easements (for municipal trails, driveways, etc.), and Statutory Rights-of-Way (SRW)(for public and private utilities, moving water from one lot to another, etc.).

The parties to most of the Easements, Covenants, and Statutory Rights-of-Way are "The Cape on Bowen Community Development Ltd." (signatories Don Ho, Candy Ho); " HSBC Bank Canada" (holder of mortgage); and "Leeda Developments Corporation" (holder of mortgage; signatory Edwin Lee). Bowen Island Municipality is a party to many of the Easements, Covenants, and Statutory Rights-of-Way.

The Covenants, Easements, and SRW's described below are listed in the order in which they appear in Appendix E. If the document does not apply to all lots, the applicable lot numbers are stated. There are a number of other Easements and SRW's in Appendix E that have not been listed here – they cover minutiae such as driveways across one or more properties to allow access for another property to a road, etc. Some of these Easements and SRW's benefit BIM.

Section 218 Covenant: "Section 218 of Land Title Act allows a Statutory Right-of-Way to be granted over land without a dominant or servient tenement". Section 219 Covenant: Section 219 of the Land Title Act states that a covenant in favour of a municipality may be registered as a charge against the title to the land and is enforceable against the covenantor and its successors in title even if the covenant is not annexed to land owned by the municipality.

COVENANT BB340325, BB340326: REGISTERED DEC. 18, 2009 (PAGES 1 - 97/608)

Section 219 Covenant (covenant in favour of a municipality), covering fire protection and geotechnical. Includes a June 1, 2009 report prepared by Golder Associates entitled "Geological Hazards Assessment", which includes an individual assessment of each lot, and a "Landslide Assessment Assurance Statement. This covenant lays out building restrictions such as requirements for sprinklers, fire-retardant roofing, removal of flammable vegetation close to structures; and restricts building site locations re steep slopes. A map of this area is on page 16/608. See also notes re Covenant BB340394, BB340395 on page 5.

COVENANT BB340327, BB340328: REGISTERED DEC. 18, 2009 (PAGES 98 – 157/608)

Section 219 Covenant covering Residential Construction – Site Servicing. This covenant provides that there can be no residential building unless an engineer with experience in groundwater hydrology certifies the parcel has a source of water sufficient to supply 1100 litres/day for each building with residential dwellings. In addition, if the building contains a B&B, there is a requirement for an additional 440 litres/day for each guest bedroom. A treatment system must be provided to treat the number of litres required. (Complete text on pages 104 & 105/608.)

This covenant also provides that no construction or building permit applications may commence until the portion of the road from Whitesails to the lot is constructed to "rough road grade" standard; until a Heritage Inspection Permit is issued by BC Archeological Branch; no infrastructure works construction except in compliance with "Environmental Construction Management Plan" prepared by PGL Environmental Consultants (Schedule A); and no construction on Lots 23 or 24 until a SRW registered against the title of those parcels. (Complete text on pages 105 & 106/608.)

Note: Covenants BB340329 – BB340388 are "missing" from the "608 package". BB340327, BB340328 describe the land as "Lot A DL1548 Group 1 NWD Plan BCP41220" – this would be before the subdivision was complete. The "missing" covenants would, I suspect, be the covenants registered for each subdivided lot.

COVENANT BB340389, BB340390: REGISTERED DEC. 18, 2009 (PAGES 158 – 172/608)

Section 219 Covenant covering Ocean Fronting Lands – applies to Lots 1 through 30. The definition of the "Covenant Area" means that portion of the Lands within 30 meters from the natural boundary on sketch plan; "natural boundary" has the meaning given in the Land Act (BC). (Complete text on pages 165 & 166/608.)

This covenant provides that there can be no building or structures on the Covenant Area; no excavation, removed soil, or added fill on the Covenant Area; no cutting, pruning, trimming or removal of trees or vegetation from the Covenant Area; no planting of non-native vegetation; no pesticides or herbicides to be used in Covenant Area. There are certain exceptions to these provisions. (Complete text on pages 166/608.) A map of the Covenant Area is on page 170/608.

COVENANT BB340391, BB340392: REGISTERED DEC. 18, 2009 (PAGES 173 – 186/608)

Section 219 Covenant covering Riparian Protection for Creeks – applies to Lot 1-5, 23-27, 33-34, 44, 54-55, 57-59. The definition of the "Covenant Area" means that portion of Lands within 15 meters from the natural boundaries of watercourses outlined in bold on the Sketch Plan; "natural boundary" has the meaning given in the Land Act (BC).

This covenant provides that there can be no building or structures on the Covenant Area; no excavation, removed soil, or added fill on the Covenant Area; no cutting, pruning, trimming or removal of trees or vegetation from the Covenant Area; no planting of non-native vegetation; no pesticides or herbicides to be used in Covenant Area. (Complete text on pages 180/608.)

There are exception to this covenant in SRW BB340404 (trail allowed); Driveway Easement BB340445, Section 219 Covenant BB340446 (driveway on Covenant Area allowed on Lot 23); Driveway Easement BB340449, Section 219 Covenant BB450 (driveway on Covenant Area allowed on Lot 24). (Complete text on pages 181/608.) A map of the Covenant Area is on page 184/608.

COVENANT BB1146399, BB1146400: REGISTERED MARCH 2, 2010 (PAGES 187 – 195/608)

Section 219 Covenant – modification of Covenant BB340391 covering Riparian Protection for Creeks. This Covenant corrects the registration numbers of the Driveway Easement and Section 219 Covenant for Lot 23.

BB340404, BB340405: REGISTERED DEC. 18, 2009 (PAGES 196 – 221/608)

Section 218 Statutory Right-of-Way for Public Access Trails – applies to Lot 19, 23-24, 33-34, 45-47, 51, 56, 59. This provides for a SRW to provide for and facilitate public access, reconstruction, maintenance and use of a public trail by BIM; and provides that the Owner (Cape on Bowen Community Development Ltd. currently) will clear an area in the SRW for a trail with firm, natural ground surface within a specified time; and that after this work, BIM will maintain the trail. Note: Who would maintain the trail if Metro Parks buys the land? A map of this area is on pages 211-216/608, and reference plans are on pages 219-221/608.

BB340407, BB340408: REGISTERED DEC. 18, 2009 (PAGES 222 – 237/608)

Section 218 Statutory Right-of-Way covering Drainage Ponds on Lot 1, 5, 23-24, 33-34, 44, 54, 57, 59. This Statutory Right-of-Way provides for and facilitates storm drainage by Bowen Island Municipality, including reconstruction, operation, repair and maintenance of storm drainage ponds by BIM. It further provides that the Owner (Cape on Bowen) will not put anything in the SRW or interfere with the SRW. A map of the SRW is on pages 233 & 236/608.

BB1957659: REGISTERED MAY 20, 2011 (PAGES 255 – 283/608)

This is a Declaration of Building Scheme for all Lots 1 – 59 (Cape on Bowen appears to still be owner of all lots). The Statutory Building Scheme creates a "building scheme", with the sale of lots being subject to restrictions in the Schedule. The Schedule provides for "rules" for building, approval of plans & specifications, building siting & improvements, building finishes; restrictions on vehicles parked on lots; prohibition of certain plant species. These rules are set out by the Owner ("Cape on Bowen").

BB1341178: REGISTERED AUGUST 23, 2011 (PAGES 284 – 290/608)

Transfer of SRW from Cape on Bowen/Leeda Developments to Shaw Cable – applies to all Lots 1 – 59.

WX2107086: REGISTERED FEB. 4, 2019 (PAGES 313 - 316/608)

The Nature of Interest of this document is "Undersurface Rights" – applies to Lots 20-41, 42-59, and Lots C, D, E, F. This provides for the transfer of undersurface rights from "Cape on Bowen" to Her Majesty the Queen in Right of the Province of BC as represented by the Minister of Finance, and includes a "Mineral Land Surrender Form". Note: Many of the lots that would form the proposed Park are affected by this document – what are the implications for the proposed Park, or for the Municipality? Could this potentially become an "underground" issue similar to the recurring "above-ground" issue of logging on Bowen's Crown Lands?

BB340394, BB340395: REGISTERED DEC. 18, 2009 (PAGES 337-350/608)

Section 219 Covenant for Environmental Protection – applies to Lots 4-5, 14-17, 21, 25-32, 37, 48-51, 53-54, 56. This Covenant relates to BB340325, BB340326, also registered Dec. 18, 2009, and deals with the areas and issues covered by the Golder Associates report. While BB340325, BB340326 covers restrictions on building siting and finishes relating to the report, BB340394, BB340395 has blanket restrictions on activities on the Covenant Areas.

This Covenant provides that there can be no building or structures on the Covenant Area (BCP43266 Nov. 8, 2009); no excavation, removed soil, or added fill on the Covenant Area; no cutting, pruning, trimming or removal of trees or vegetation from the Covenant Area; no planting of non-native vegetation; no pesticides or herbicides to be used in Covenant Area. Maps of the Covenant Area are on page 347/608 and 350/608. The "environmental" Restrictive Covenants shown on the Metro Parks map of the proposed park are all from this Covenant.

CA9274748: REGISTERED AUGUST 18, 2021 (PAGES 431-450/608)

Section 219 Covenant for Forest Protection – applies to Lots 31-40, 45-51, 56-59, and Lots C, D, E, and F. This Covenant between the Owner (Cape) and BIM (not signed by mortgage holders) was to cover the second phase of development and to protect the forest management zone. It prevents the Owner from cutting trees within the "Forest Management Zone" without a permit, and provides for other restrictions as well as requirements to mitigate slash debris and provide for planting of replacement trees. It also restricts trees and vegetation removal in Riparian Zones, and states that building permits are subject to review per the Forest Management Zone. The Owner is responsible for "correcting mistakes". Report from Diamond Head Consulting is on pages 439-449/608. A correction was registered as part of this document, correcting the transposition of "Transferor" and "Transferee". Note: This document refers to both "Forest Management Zone" and "Forest Management Area", yet only the "Zone" is defined (this could be a "typo").

CA4487479, CA4487480: REGISTERED JUNE 25, 2015 (PAGES 480 – 495/608)

STW for Public Access to Trail over Lot 33 – in favour of BIM. Signers are "Cape" and "Leeda" only. Maps of this area are on pages 491, 494, 495/608.

CA2468809: REGISTERED APRIL 2, 2012 (PAGES 598-608/608)

Section 219 Covenant in favour of the Crown in Right of BC, c/o Ministry of Forests, lands and Natural Resources Operations for Designation of Archeological Site – applies to Lot 55. This Covenant provides that the Covenant Area (Archeological Site DiRu-88) not be built on, disturbed, and that soil not be removed from/added to the Covenant Area. Maps of the Covenant Area are on page 605/608 and 608/608.

Interesting Note: The outlines of Lots 52 – 55 were changed from the original subdivision sometime before February 2016. The newly configured lots are listed as Lots C, D, E, and F. Map of the original subdivision is on page 170/608.

All other Covenants, Easements, and Statutory Rights-of-Way included in Appendix E are for such purposes as: Transferring SRW's from the Owner (Cape, Leeda) to BC Hydro, Telus. Establishing easements over one or more lots for the benefits of other lots in order to construct and use driveways. Modifying easements over one or more lots for the benefits of other lots in order to construct and use driveways. Establishing Statutory Rights-of-Way over one or more lots for the benefits of other lots in order to transfer well water from one lot over portions of another lot. Various corrections of previously-filed documents.

Page 9: Map - Revised Map showing Proposed Park at CRC with Covenanted Areas. The map includes a legend showing Site Boundary, Municipal trail, Access Easement, Municipal Road. Restrictive Covenants are shown for Environmental, Riparian Protection, and Oceanside areas. Park uses are indicated including Regional Parkland (overnight use, no. of sites), Walk/bike-in tent camping (40-50), Group tent camp (3-5), Car accessible tent camping (25-35), and Tent cabin (10). The map shows lot numbers ranging from 23 to 52, with Cape Drive, and Georgia Strait marked. Various covenanted areas are shown in darker shading overlaid on the lot plan with proposed camping areas.