There was one safe, convenient way to access the UBC Okanagan campus by bicycle from Kelowna. As of today, February 16th, 2015, for most of us, there isn’t. That route was along the private easement from the end of Curtis Road, along Robert Lake, to the west side of campus.
The issue of the rights to use the easement has been around since the campus was first created as part of Okanagan College. A Google search can turn up many stories documenting the ongoing conflict between some of the residents along Curtis Road and UBC. While there are many versions of the story, the core seems to be that the north campus of Okanagan College was created by combining a number of parcels of land, one of which had rights to use an easement that lead to the end of Curtis Road. At the time, this parcel seems to have been a hay field, so that access was only needed from time to time, at most daily in the summer for irrigation. The traffic currently using the easement to access UBC – a substantial number of cyclists, some pedestrians – some of whom are dropped off at the start of the easement – and a few people who drive to the end of the easement and drop someone off – is far more than was ever envisioned for the easement.
An easement is an interesting arrangement. In the case of Curtis Road, the easement provides each property owner with the right to cross the private property of her neighbours to access her land. This extends to visitors as well. When this agreement was made between the property owners, nobody envisioned an institution would arrive, and that that institution would result in a large increase in passage. The protracted legal battle between some of the residents and UBC Okanagan seems to have finally clarified what rights UBC has, and that is passage by people traveling for work to those buildings built on the original parcel. They cannot use the easement on days when they don’t have business in those buildings, nobody else accessing UBC can use it, and UBC must have an effective system in place to ensure that only those entitled to use the easement do.
This dispute highlights the challenge of balancing private property rights with the public interest. Clear and secure private property rights are foundational to a smoothly functioning economy and liberal-democratic society. The owners along Curtis Road have a clear and well defined set of rights in relation to their private property, and their rights to use the easement. The court has effectively ensured that these rights are secure and can be enforced. This is precisely what our system of legal rights and the institutions meant to support them are supposed to do. However, this also means that people who choose – or have no choice – to cycle to campus now must take a longer and in some parts much more dangerous route to campus. Has the enforcement of private property rights supported the public interest?
Economists as a rule see clear property rights and smoothly functioning markets as the best way to serve the public interest. The expression of this idea dates back at least to Adam Smith (The Theory Of Moral Sentiments, Part IV, Chapter I, pp.184-5, para. 10.)
Every individual… neither intends to promote the public interest, nor knows how much he is promoting it… he intends only his own security; and by directing that industry in such a manner as its produce may be of the greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention.
Our profession is loath to suggest interfering with the market unless there is strong evidence to indicate that property rights and a freely functioning market are not serving the public interest. Rather, we would typically look for opportunities where small tweaks or ‘entrepreneurial’ solutions could be found that both satisfy the public interest and protect private rights. Are there any such solutions for this problem?
One simple solution would be for the residents to charge a fee for using the easement. Maybe $25 per month and $200 for the year. The cheapest two semester parking pass at UBCO costs $252, and the cheapest annual pass is $378. For a faculty or staff member, it may be worth spending $200 for such access. And if 50 faculty and staff people do so, then the residents have $10,000 per year to decide what to do with. Sounds simple and rational. Is it likely?
Feelings have been hurt. Some of the residents feel that their rights have not been respected, and that they have been bullied by UBC and ridiculed by self-righteous UBC staff and students. For some, their share of this $10,000 may not be enough to make up for this history of hurt, or they may simply value their privacy more than their share of $10,000. Adam Smith’s simple selfishly rational individuals may not adequately describe this situation, and a simple negotiated solution that permits access may not be possible.
Does this have anything to do with water, the usual subject of this blog? The dilemma of the right mix of private property rights and free choice by individuals against collective control in the public interest is huge in water. Economists – and I’ve been one of these at times – typically lament the lack of markets for water rights and the lost opportunities for more efficient water use as a result. Many others insist that water must remain in the public realm. Fundamentally, it is necessary for our survival and instrumental to environmental health, and opponents of markets for water rights feel something this important can’t be left to the whims of private owners.
As with so many societal choices, we need to reconcile multiple, conflicting values. Hard choices are hard because there is no obvious right answer (great TED talk here). We want to be part of a society that promotes active, healthy, safe and sustainable transportation options. We also want to be part of a society that respects our individual freedom to make choices and to do with our property as we wish. Here is a case where promoting one conflicts with the other. The courts have clarified the legal situation. The morally right choice though is far less obvious.
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Hi John,
I enjoyed reading your post.
I felt compelled to comment on your use of Adam Smith’s ‘invisible hand’ reference in your post; justifying property rights (sometimes without noting responsibilities) and smoothly functioning markets. This quote is (too) commonly used as a summary or representation of Smith’s work on moral sentiment. Smith writes in great length about the reasoning and value of common good and common property. For example at the beginning of Smith’s essay (Par 1, Page 1), The theory of moral sentiments, he observes
“How selfish soever man may be supposed there are evidently some principles in his nature, which interest him in the fortune of others, and render their happiness necessary to him, though he derives nothing from it except the pleasure of seeing it. Of this kind is pity or compassion, the emotion which we feel for the misery of others, when we either see it, or are made to conceive it in a very lively manner.”
It is unfortunate that on balance, the ‘selfish’ wants of the property owners trump the many benefits associated with common use of the Curtis Road UBCO Access and providing an important community transportation corridor and safe passage to youth, students, ubc staff and guests.
Thanks for your continued diligent work to promote great dialogue. And safe biking!
Nelson R. Jatel, MA, PAg
cyclist
Great comment Nelson. Adam Smith’s work is a lot richer than the simplistic understanding of the ‘invisible hand’, and I certainly presented the simplistic view.
As a cyclist using the easement for the last seven years, my view of the public interest includes my use of that easement. However, I can understand property owners being upset after decades of trespassers who insist they have a right and won’t acknowledge that they are crossing private property. The legal definition of an easement requires there to be a ‘servient tenement’ owner who bears a ‘burden’ of providing the ‘dominant tenement’ with rights to the owner’s property. There was not much acknowledgement of the ‘burden’ going on.
I actually proposed putting a sign on my property, which is nearby, expressing gratitude to the owners of the easement for providing a safe access for cyclists to UBCO. Didn’t get any real support or interest, so it didn’t happen.
Thanks for this blog John,
Your blog is a fair comment, albeit hard to hear for those of us that bike and literally take our lives in our hand trying to set the example for others to follow after us. I respect the Court’s ruling, and now think it time for UBC Okanagan, the City, the Region, the residents, and, the students/staff/faculty wanting to bike/walk this easement to work together for a sustainable, long-term, practical solution. And that is perhaps the most frustrating thing, the residents along the easement don’t want to talk about solutions, and, can’t agree among themselves on a solution. I feel very much caught in the middle – between a truck and a hard place! I understand the history of hard feelings, but we are talking people’s lives here, there is no safe alternative – the new Glenmore Connector (John Hinton Drive) won’t be safer, and, involves extra kilometres and very steep biking grades. UBCO is currently in an campus planning process and conveniently ignored this issue, despite my repeated attempts to have them design a reasonable and safe alternative. They city, region, and UBCO were looking at a design on the west side of Curtis Lake, and all issues – property, environment, construction, cost – were able to be addressed, but now all those same parties have gone silent. Is cost sharing not an option? Perhaps your favorite option – lets make it a toll bike path until its capitalized cost is paid off – I’m sure that would cost much less than the $20/month that you suggest John. Thots?
Thanks for the thoughts Gord.
The toll for a new path is interesting. Can’t resist thinking about it like a finance problem. I’m going to assume that the suggested pathway on the west side of Robert Lake costs $700,000. This is the upper end of the range in the UBC news item (https://news.ok.ubc.ca/exchange/2014/02/06/getting-to-campus/). UBC doesn’t have a depreciation category for pathways, but concrete buildings are depreciated over fifty years. Another simplifying assumption is that depreciation is the cost to keep the asset from degrading (maintenance, etc). That would be $14,000 per year. Another simplification is to suppose that the money is borrowed and paid off over 50 years – the depreciation period. If we assume that the university can borrow at 2%, much lower than any of us can get, then we’d need to raise a bit over $22,000 per year for fifty years. Adding the two together comes to $36,000 per year. We would need 180 people paying $200 per year for 50 years to pay for the path, and then after that 70 people paying $200 per year for maintenance.
Is is worth paying? Relative to the John Hindle route, a cyclist would save about 4 km per day, or at an average speed of 20 km per hour, save 12 minutes per trip. Lets say 200 trips per year. That is paying $1.00 per trip to save 12 minutes. Or, if your commuting time is worth more than $5.00 per hour, it is worth paying $200 per year.
Is it fair that cyclists should pay the full cost of such a path? No! Lots of reasons why not, from cyclists cost the healthcare system less to cyclists are not using a car, and therefore leaving more space on the road for cars to cycling is better for the environment. However, right now we have no path, so I’m not sure that standing of these fairness related principles is going to get us anywhere.
Thanks for this great post Dr. Janmaat. I think it is important that all parties are aware that there was a right of way built in to the subdivision as can be seen in the attached picture below^ which has been flooded by Roberts Lake. The easement was built around the lake and has existed all along.
I am not a lawyer, I am not even a governmenter. This is all my opinion. I think the idea of a toll would be a workable way to fund the repair of the road, but I think your suggestion is right, in that a small set of families (the Lafontaines, the Callaghans, the Gilberts and one Claire Budgen as seen in the statement from the court listed below &) are deadset on the idea of “winning” here, rather than a true consideration of the opportunity costs and values at stake. This comes at a large cost to our community and indeed, likely a large cost to themselves in legal fees, personal stress, anger and other factors they have likely sunk in to this project.
While I do not support the role of the state in matters of private property generally, I think it would be a reasonable solution in intervening in this case. Even regardless of that, the easement agreement clearly states that successors in title (UBC) have the right to use this as access to their property for themselves and all invitees, etc.
It seems to me, there is not much to argue about and the court has simply erred: UBC is plainly the successor in title, and it plainly invites its students, faculty and staff members to campus.
In any other municipality, the government would require a public road to access all properties on such subdivisions. This situation would have never arisen. There is a layer of mismanagement in property zoning in Kelowna that rears its head everywhere from the lack of access roads off the highway to poor scaling decisions to urban sprawl and issues like this. This is not the first such lawsuit about a subdivision’s easement in Kelowna and it will not be the last. This is just one with a very clear public harm in how the court is interpreting the law.
^ http://cl.ly/image/1c360D3K0q1d
& http://www.courts.gov.bc.ca/jdb-txt/SC/15/01/2015BCSC0139.htm
Thanks for the link to the court case. Interesting read.
The least the City of Kelowna could do is reduce the speed limit during peak commuting times and maybe throw in a light post or two on Highway 97 bridge. The total cost would be less than $5000. For some reason after gaining a high school diploma we are ineligible for school zones and safe access. All things considered, it is probably worthwhile to take the 200$ trespassing ticket every day to avoid a fatal accident. I mean it is still cheaper than American university tuition rates to attend UBC and accept the ticket every day. But after this year I will never have to go to UBCO or live in Kelowna again.
Attn: “B”. “Gord”. “John”. “Nelson”. Your collusional impartations “in terms of” Institutional hijacking are on the record. Your thoughts in regards to how you divide the spoils of that which is not yours, defines the entitlement of todays society.. Please do not undermine the supreme court decision of the Honorable Chief Justice Christopher Hinckson. If that is the intent………could be considered anarchy. Sincerely Paul R. Warnock
Thanks for your comments Paul. I think that the court decision has clarified what the rights are, which is a good thing. I do think that the court’s decision needs to be respected. What this does is move the issue from one of people arguing about what their respective rights are to one about solving the problem with a recognition of what the affected property rights are.
Private property is not sacrosanct. Even the US constitution, which unlike ours does have a clause pertaining to private property, does not make it an ultimate right. Rather, the constitution requires that private property can only be taken by government if doing so is clearly in the public interest and if the owner of the private property is fairly compensated for their loss. That taking does not require the consent of the owner. If it did, that would be anarchy.
The question then becomes one of whether taking – expropriating – the private easement is in the public interest, and then if so, what is the fair compensation. The related question is whether there is an alternative solution that costs less – financially and politically – than the expropriation. The question that follows from that I suspect is whether, given that the majority of those who were using the easement only do so for a few years, if the problem will simply go away in a few years when the few who are around for a while have accepted the loss and the rest who might use the easement don’t know any different than not being able to.
Since when is UBCO the Gov’t?… Just wondering.
UBCO is not the government. However, UBCO staff, faculty and students, and other people in our community who would cycle between points where the safest route is along the easement are citizens of our community, province and country as much as anyone else. Their right to safety and ‘security of the person’ is what our governments have a responsibility to look out for. That right to security of the person is in our constitution, section 7 of the Charter of Rights and Freedoms.
The court decision means that until such time as the city or provincial government steps in and expropriates the easement between the end of Curtis road and UBCO, those who would use that route do not have the right to do so. This is now clear, and I believe should be respected. However, this decision does not absolve our governments of their responsibility to provide safe and effective infrastructure for all of us to use, and it is our responsibility as citizens and members of our community to not simply accept that some groups of citizens have less rights and/or are less important.
Dominant tenement is irrelevant with the distortion of the original intent….. of the easement. Herein lies the misinterpretation of the beguiled. P. Warnock
My understanding of the court ruling was to define what the dominant tenement rights were, and the actions that UBCO had to make to ensure that the rights of the land owners along the easement were respected. That UBC could not practically limit access to those who did have the rights of the dominant tenant meant that all access to UBC was eliminated. To me at least, this is not the issue. The court has clarified what the rights are, and I respect that.
The question then becomes the provision of safe access to UBCO for cyclists. The court decision means that if the access is going to be via the easement, then the easement would either have to be expropriated, or some negotiated agreement with the land owners would have to be made.
The city built an access path from Bullman road to campus. There is now access via Academy way from Sexsmith. John Hindle will be finished and provide access from Glenmore Road in the not too distant future. All of these mean that there is or will be safe access. This is how our local government has chosen to fulfill its responsibilities to provide safe access to UBCO.
The access that has been provided imposes much larger costs, in terms of travel time, on those who cycle to the university and between places north of campus and south of campus. This larger travel cost means many people will not cycle, and either drive or use transit, or choose to go somewhere other than UBCO to attend school or work. We are spending many millions of dollars on road infrastructure to deal with the congestion faced by motor vehicles. Putting much smaller sums into building good quality cycling infrastructure – infrastructure that recognized cyclists are as concerned with getting to and from their destinations quickly just like someone who uses a car – can actually get some people out of their cars, reduce healthcare costs and reduce environmental costs. If our city government is serious about promoting sustainability and active transportation, as it likes to claim, then it should take such actions.
Dominant tenements are already predefined by law. I appreciate your concern jjanmaat, and sympathize with those persons who are in this situation. Poor planning…….. Shouldn’t build a city of the future without pre-planned appropriate provisions for those who are dedicated to their education, healthcare and environmental implications; and then in hindsight, “bully” private property owners at the expense of the taxpayer and residents with their endless flow of money from public coffers. My understanding is that billions of dollars are available in UBCO’s endowment fund to finance their own entity……or is it a charity organization? . Very sad that these court battles are such a burden for us, the taxpayer. I am funding both sides inadvertently. P. Warnock
As I understand it, any easement must have a dominant and a subservient tenement. However, what rights the dominant tenement has depends on the nature of the easement. In the Curtis road case, it is right of passage. For hydro lines, telephone, water, etc., the rights are different. The situation is simply that one party has the right to make use of property owned by another party in a particular and limited way, and that owner cannot interfere with the dominant party exercising the rights conferred by the easement.
Most development plans for cities cannot anticipate everything that will happen, and taxpayers end up paying to fix the mistakes. Be a very different world if the politicians who approve the bad choices, particularly when there was good evidence at the time to know it was a bad choice, were liable themselves to pay for those mistakes. However, since they write the laws, they write in protections for themselves.
I do think it is important to bear in mind that private property is a privilege conferred by our government. We as a society have agreed that in most situations the fact that people invest in and take care of things they own is consistent with the public interest. However, this is not the case in all situations, and when private property conflicts with the public interest, it is incumbent upon the government to put the public interest ahead of the private interests. It needs to be done fairly, with just compensation paid to those whose private property rights are taken away, but it does need to be done.
Very good points, It does need to be done fairly. Is jjanmaat a private property owner? ….You’re right, private property is a privilege/blessing….but it does, however, come with huge responsibility and liabilities. If you do own a piece of this great sovereign soil, ….would you mind if I bring a few friends over to your place for the next few years. We would like to take some pictures, I also need to walk my dogs there too. I promise to pick up the poop. Oh, and I need to drop my /friends kids off there so they can cut through your yard to get to their school. I’m sure you won’t mind. Thank you, Good night, Paul.
I am a property owner, and that is a nice example. If it was between you and I, perhaps we could find a deal whereby you could rent some of my land from me for you, your friends and your dogs. If we were agreeable, perhaps we could even make it permanent with an easement type agreement, where I grant you certain special rights of use to some part of my property in exchange for you of course providing me with a payment. In essence, you buy those specific rights from me, even as I retain the ownership of the underlying land.
If my piece of land was the only place around where people could safely recreate and provide places for their pets, then perhaps a neighbourhood association could be formed that would make a deal with me to use part of my property.
The challenge comes up if I refuse to make a deal. If my piece of land is the only safe place around for, say, a children’s playground park and a small sports field, and maybe a dog run, a place that hundreds of people would use, and as you suggest, a safe pathway for your children and many other children to get to school, then the public interest would clearly be served by having this space provided for public use. My refusal to be cooperative then puts the onus on the local government to exercise their obligation to protect and promote the public interest. It would then make sense for them to expropriate part of my land for a public space, and of course pay me fair compensation for that.
Of course, we don’t all agree about what constitutes the public interest nor do we agree on what constitutes fair compensation. We elect people to our local, provincial and federal governments and vote for those who we think will best represent our views on these matters. It is then their job to make the decisions about when the public interests trump private interests and when they don’t. I doubt either of us will be happy with all the decisions they make, but if our system is working, then the decisions they make will reflect a balance of our many different perspectives on these issues. Hopefully, when we respectfully engage in conversation with each other, we can appreciate these differences in opinion and realize we are better off working together than at cross purposes, accepting that while the outcome may not be what we individually prefer, it is best for us all together. So, I thank you for this exchange.
Thanks for that jjanmaat. Is that your real name or is it in your better interest to remain anonymous,…and if so, why? Everybody has an opinion, but too many express their opinions while under the guise of anonymity. Their “idealistic” solutions are as questionable as their right to be in the debate while under disguise. It’s been interesting to see your entitlement point of view. Thanks for the dialogue, Best regards. Paul Warnock.