Even after two failed alternative-approval processes, the City of Nanaimo shouldn't shy away from a third AAP, a consultant has recommended.
Nanaimo city councillors received a consultant's report and recommendations this month following the recent failure of two straight AAPs related to long-term borrowing of $48.5 million for the first phase of a public works yard rebuild.
"Not only do we owe it to council, but also to the community to make sure that we better understand going forward where mistakes were made, so in the future we have the confidence of council and the community to conduct any future AAPs that are necessary," said Dale Lindsay, the city's chief administrative officer, at a governance and priorities meeting June 12.
Consultant Lisa Zwarn found that the city's first AAP for the Nanaimo Operations Centre actually had "defensible" validity, though the second AAP was not done in compliance with the community charter legislation.
The consultant's report noted that staff were made aware of concerns regarding the official notice of the first AAP, and after receiving legal advice, recommended cancelling the AAP and starting over. It wasn't until after the AAP was cancelled that a second legal opinion suggested that the process might have actually been valid, and by that time, it was too late. Zwarn said she would have done the same thing staff did in the circumstances: seek a legal opinion and follow the advice given.
"Your staff didn't want to risk it at the time based on the value of the project, the importance of the project to the community and the public discourse that was happening at that time," she said. "At that point it's easier to start the process again than sit on pins and needles wondering, 'is this going to be challenged or not?'"
The second AAP failed because elector response forms were not made available by the start of the process. Zwarn said the failure of the second AAP can be traced to multiple factors, including staffing challenges that month, as well as possible misinterpretation of the legislation as the city thought that making the forms available early could disenfranchise electors who brought back the forms before the official start of the process.
The consultant made a series of recommendations, including that the city limit the number of elector response forms it provides to any one resident, and that the city request clarification from the provincial government regarding notice requirements.
There was also discussion of communication plans related to AAPs. Zwarn noted that although the legislation doesn't require communication plans, "there's a very real possibility of misinformation circulating unless the city takes steps."
Coun. Tyler Brown said while some AAPs of smaller scope and scale may not require the same level of communication and engagement, some projects could require a level of borrowing that could impact the city's ability to pay for other projects.
"I think those are important times to check in with the electorate," he said.
The city received 3,035 elector response forms during the first AAP, well short of the 7,899 that would have stalled the bylaw, and Sheila Gurrie, the city's director of legislative services, said approximately 2,700 forms had been received during the second AAP at the time of its cancellation.
Mayor Leonard Krog said when the city launches alternative-approval processes, it's because council has made an informed decision that it should borrow money for a specific project.
"This is an opportunity for the voters to say, 'we happen to disagree with your judgment even though we elected you to exercise your judgment and act responsibly and listen to staff and read reports and pay attention to things,'" he said. "We didn't even come near the number of signatures that were required … and that was in two processes. Surely the media coverage and everything involved in it would indicate that in fact, the majority of the citizens of Nanaimo either didn't care, or trusted council, or indeed supported a long-standing project."
Zwarn recommended the city consider going back to the alternative-approval process.
"Trust has been eroded, both externally and internally. Being shy of using this process again, I get that," she said. "Third time, is it the charm? You hope so."
City council, at a meeting Monday, June 17, directed staff to develop a policy to apply to future alternative-approval processes that would include providing no more than 10 elector response forms to any individual. The city will also advocate to the province to clarify some of the language in the community charter pertaining to AAPs.
