B.W.F. FODCHUK BARRISTER & SOLICITOR*

Transcription

1 B.W.F. FODCHUK BARRISTER & SOLICITOR* Telephone: Facsimile: *Law Corporation West 40 th Avenue Vancouver BC V6M 1W6 October 7, 2011 Bowen Island Municipality 981 Artisan Lane Bowen Island BC V0N 1G0 Mayor and Members of Council Re: Application for Tax Exemption by Bowen Island Golf Association and Seymour Bay Foundation I act for Bowen Island Golf Association ( BIGA ), a non-profit society which leases about 65 acres of land from Seymour Bay Foundation ( SBF ), a charitable foundation, on which a public golf course was developed and is now being operated by the Society. With the 65 acres transferred to Seymour Bay Foundation by Bowen Island Properties Ltd., the developer of the Cowan Point lands, BIGA and its directors in collaboration with SBF, guided the funding, development, construction and completion of the golf course. If it hadn t been for BIGA and the immense, immeasurable and noble efforts of its directors, especially Bruce Russell, its President, over the last 13 or so years, this public facility would never have become a reality and would likely still be a dream. Today the Island features one of the best maintained golf courses in British Columbia of which it can be justly proud. May I speak to the several issues that impact on this application. 1. Origin of the concept of a public golf course. The idea of a public golf course was spawned and memorialized in Bylaw No. 52, 2002 establishing the Cowan Point Comprehensive Development Area and amending the Bowen Island Official Community Plan. 1

2 Note the references throughout the Bylaw to a public golf course and its development respecting the natural environment and other public needs. [Specifically refer to the sections.] 2. Benefits flowing from the development of a public golf course. (a) It provides a public recreational amenity for the entire community. (b) This amenity fosters healthy recreational activity, promotes sportsmanship, psychological and physical health, reduction of obesity, family cohesion, connection to the community for the very young and the very old, provides alternatives to the injurious cultures that face our youth and provides a community facility on the Island that lacks a community centre. (c) The golf course provides for the preservation of park and green space and is maintained in a manner respecting the natural environment and its protection and provides for and is a part of the public trail network. (d) It provides for employment on the Island, especially young people. (e) Its operation by BIGA frees the Municipality from itself having to provide, operate and finance a public golf course. 3. Do SBF/BIGA qualify for an exemption? Permissive tax exemptions are provided under Division 7 of the Community Charter. These are found in section 224(2) of the Charter. (a) Subsection (2)(a) states that an exemption may be provided for land and improvements owned or held by a charitable, philanthropic or other not for profit corporation and that are used for a purpose directly related to the purposes of the corporation. SBF is a charitable corporation and BIGA is a not for profit corporation, both thus qualifying, and the land and improvements are being used directly related to BIGA s purposes. (b) Subsection (2)(i) provides an exemption for land and improvements owned or held by an association and used as a public park or recreation ground or for public recreational purposes. Surely BIGA meets that qualification. (c) Subsection (2)(e) provides an exemption in circumstances where a partnering agreement may be entered and land and improvements that are eligible for exemption under such an agreement are eligible golf course property, being land maintained as a golf course. Surely, BIGA meets that qualification. 2

3 (d) In your CFO s report, reference is made to a draft Permissive Tax Exemption Policy and a decision chart set out to guide difficult decisions. The guide asks these questions. 1. Is the land owned by a charitable, philanthropic or not for profit organization? YES 2. Does the organization demonstrate financial need? YES 3. Does the organization/use of the land benefit the community as a whole? YES a. Accessible to a large portion of residents? YES b. Meets the needs of a large portion of residents? YES c. Could be an extension to the Municipality s services & programs? YES d. Has a broad base of community support? YES 4. Are the land &/or improvements used for the direct purpose of the corporation? YES What more does BIGA need to do to convince Council that it qualifies for a tax exemption. (e) Subsection (4)(a) allows for exemptions as long as 10 years. I submit that a 10 year exemption would be appropriate for BIGA, as it is for several other organizations that currently enjoy such 10 year terms granted by this Council. 4. Source of the funding for the creation of the golf course. With the promulgation of these lands as a public golf course in 2002, BIGA undertook the task of raising funds to complete the construction of the golf course. BIGA s directors and members raised the monumental sum of $3.7 million in a matter of a couple of years and the golf course was completed and opened for play in the Fall of A remarkable feat in such short time, which I would point out, resulted without the need for any contribution of moneys from the Municipality. BIGA has operated the facility since its opening and as most golf courses, its financial stability rests a great deal on weather and economic conditions. This last year due to weather conditions, the amount of green fee revenue has fallen off considerably. Add to this, the increased cost of ferry travel affecting off Island participation. The financial state of BIGA and whether it manages to balance its books is directly affected by these conditions. To receive an exemption from tax, big or small, is welcome and would obviously help. 3

4 5. What protections does the Municipality have to ensure that the golf course remains a public golf course? The Municipality was granted Restrictive Covenants against the golf course lands that restricted the use of the lands. This included a Possibility of Reverter if the land is not in actual use as an operating golf course. In addition, the Municipality enjoys a Right of First Refusal to purchase the golf course lands should SBF ever wish to sell the lands. Finally, if BIGA ever was wound up, its Constitution provides any assets remaining, after all debts are paid, shall be delivered to the directors in trust, to be used by them for such purposes they may select for the benefit of the people of Bowen Island. (emphasis added) This provision is unalterable. In concluding, I submit that a case for exemption is positively and amply met. All of which is respectfully submitted. Yours truly, B.W.F Fodchuk B.W.F. Fodchuk Enc. Addendum 4

5 ADDENDUM I also wish to add here the Mission Statement of Bowen Island Municipality. In reading through each one of the statements, I can t help but affirm in my mind how Bowen Island Golf Association, if that Mission Statement applied to it specifically, in providing the public golf course facility has also met virtually each and every one of those mission requisites. Mission Statement In carrying out its mandate, Bowen Island Municipality will work towards conducting operations in a way that: 1. Improves the economic, environmental and social well-being for present and future generations; 2. Encourages and fosters community involvement; 3. Enhances the small, friendly, caring character of the community; 4. Maintains an open, accountable and effective operation; and 5. Preserves and enhances the unique mix of natural ecosystems and green spaces that Bowen Island possesses. 5

6 B.W.F. FODCHUK BARRISTER & SOLICITOR* Telephone: Facsimile: *Law Corporation West 40 th Avenue Vancouver BC V6M 1W6 October 10, 2011 Bowen Island Municipality 981 Artisan Lane Bowen Island BC V0N 1G0 Mayor and Members of Council Re: Application for Tax Exemption by Bowen Island Golf Association and Seymour Bay Foundation Further to my letter of October 7, 2011, I would like to add these comments. 1. Benefits. Without the efforts of the Golf Club directors and the $3,700,000 raised to complete the golf course, this public facility would not have become a reality. On page 2 of my first letter, I outlined the many benefits flowing from this development. I would like to add that the golf course, enhanced by the clubhouse now being completed, will provide not just a place for players to gather before or after a game to have a bite to eat and reminisce about their round, but a communal place for parents to meet and chat whilst waiting for their kids to finish their rounds, it will be a gathering place for Islanders, all contributing to a sense of community. Furthermore, it is not just a meeting place for recreation, the lands, as legislated, are to be maintained in perpetuity by the Golf Club as green space in a manner protecting the natural environment. 2. Comparison of Recipients. Not in any way knocking the entitlement of the other worthy recipients to their exemptions, I submit that this golf course facility, on a one to one comparison, benefits more Islanders than each one of the other organizations fulfilling the artistic, theatrical, historical, educational, religious and other needs of the community. 1

7 Nor is Bowen Island Golf Association an association established just to provide facilities for or promote the interests of neighbourhood residents or members such as at, for example, Snug Point, Hood Point or Tunstall Bay. It is established to promote recreation for all Islanders and it does so by providing a public golf course and related clubhouse. 3. Financial Need. BIGA s financial statements provided with the application indicate clearly that the 2010 fiscal year has seen a dramatic dip in revenues resulting in the potential losses for the Club. That dip in revenues has continued this year due to weather and economic conditions. 4. Draft Exemption Bylaw. What is puzzling - is that in the draft Bylaw scheduled to your Chief Financial Officer s September 27, 2011 report to Council, the golf course lands and buildings were included in the list of recipients. Council removed it at the October 3 rd meeting for reasons that escape me. Council appears to have decided that it would only consider applicants previously granted exemptions and NOT consider any new applications. In other words, SBF/BIGA s application has not really been considered which it is entitled to have considered. Council has failed or neglected to consider it and provide a decision with reasons for any denial, not just have the application removed. In effect, Council s decision, with all due respect, is tantamount to a denial of justice. I urge Council to reconsider its decision to remove my client s application and to give it fair consideration and inclusion in the Exemption Bylaw. Yours truly, B.W.F. Fodchuk B.W.F. Fodchuk 2