Form 7 (Rule 3-6(1) ) ‘Supreme Court file no. 041046 Penticion Registry ‘Nelson Howard Meikle, Plaintiff, =e City of Penticton and Trio Marine Group Inc. Defendants. Plaintiff Reply to Defendant City of Penticton Filed by: The Plaintiff, Nelson Howard Meikle In reply to: The Response: the Defendant City of Penticton (the City) 1. Ingeneral Reply to all paragraphs of the City's Responses, where no mention is made herein below, the Plaintiff denies all such Responses from the City. 2. The Plaintiff replies to the City in the order set out in its Response. In Reply to the Response to Civil Claim of the City (City Response) 1. Para. of the City Response. As a person who has direct interest in the use of the land a issue from his use of the park and marina, as well as having public interest standing flowing from the dedication of the land, from municipal bylaws and Provincial and Federal legislation, and his public right of access to publis parks, directly and/or via invitation, the Plaintiff does have the right (and/or duty, and/or power) to seek the relief being sought. 2. Para, 2of the City Response. This area was previously swamp land area, and included the present ‘reek. The City developed this area and constructed a storm detention pond, as the City refers t0 it Dna to previone alterations, only a portion of the original creek still remains, asit did under previous historical conditions, as a natural creek. This creek remains a fish spawning area to the present. This detention pond does not alter these characteristics. 3. Para. Sof the City Response. Para, 1.01 and 4.1() of the Licence to Use signed between the City and Trio in Septe nber 2014, upon which the subsequent Agreements must agree with. does not permit the construction or operation of a beer and wine store or restaurant, Bylaw 2002-42 is10. uy, pi restricted in its application by Zoning Bylaw, 2011-23, which remains in effect to the present and does not permit the developments as set out in the Skaha-Marina and Skaha-Waterpark Development Agreements (the Agreements). ‘The waterpark constitutes a large, high, permanently constructed structure(s) being built on this park: land. Historically, there has never been any such (or similar) development on this or any other park Tand to which this Zoning Bylaw applies. Opposition to these developments is high, and has been in the media for approxi nately one year. In addition to ongoing and numerous public demonstrations and protests, approximately 5 000 people have signed petitions in the past year opposing these developments in an arza with approximately 45 000 people, constituting 11% of the general population, and a much higher percentage of the adult population. ‘The developments at issue, especially the waterpark are likely, if permitted, to result during daytime hours (and exacerbated during summer from June — September), with significant and/or excessive amounts of noise, garbage and waste. These developments will restrict and/or eliminate public ‘walking and bieyeling areas in this park for approximately nine (9) months of the year and during non-business hours, and restrict access to the marina area unless you enter/exit via private, Trio leased land, ‘The Request for Expressions of Interest, put out by the City in 2011, called for commercial development ofthis Skcha Park site, which included inter alia, ahotel. The City admits its intentions from the beginning tha: it has been open to accepting commercial development activities that are not provided for in the Zoning Bylaw 2011-23 and not permitted on this park land, and has been willing to amend this Zoning Bylaw from the beginning to accommodate so doing, Notwithstanding, no zoning variance of this bylaw has been passed by council to date. Examination of the Skaha Marina - Waterpark Development Agreement and Schedules thereto, clearly show that this development is, in relative terms a purely large commercial and economic project in nature, inconsistent with those permitted uses in s. 13.2.1 and s. 4.2 of the Zoning Bylaw 2011-23, as well as historical uses of this land. Para. 5, 6.9. 10 of Citv Response. The Plaintiff generally agrees with the facts set out by the City in these paragraphs, save to state that the unspecified lease referred to by Trio for the gas pumps and boat slips, is in fact a lease from the Province to the City, who thereafter sub-leased to Trio to be ‘used for the operation cf the marina ‘The definition of “accessory use” in s. 4.2 of Zoning Bylaw 2011-23, does not support the City"s interpretation of the “azcessory use, building or structure” clause in this bylaw. Historical use of the marina building anc! surrounding areas of both Crown and City land, including by the previous ‘Yamaha dealership occupier. have never included a restaurant thereon and it is not a normal accessory use thereto. The only two applicable uses al present on this land, as set out al para. 4.2 and 13.2.1 of Zoning, Bylaw 2011-23, ss. 1-8, and the City’s Licence to Occupy from the Crown, are a marina and parking lot. The marina is essentially an outdoor parking lot for boats and must be viewed in consideration ofsame. The Plaintiff presently has a lease with Trio for marina use for the storage of his boat. The developments will restrict his access to his boat and mooring of same. Para. 7 of the City Response. Any language not quoted verbatim, does not alter the meaning, interpretation and/or application of the terms and conditions of this License of Occupation to the12 13. 15, 16, 17. 18, 19, 8) City. Parts not referenczd by the Plaintiff, do not alter the meaning, interpretation and/or application of this Licence as set out and put forth by the Plaintiff at para. 29 of his Claim, and are not taken out of context. The Licenze, for the most part, speaks for itself and is far too long for any verbatim quotes Para. 11 of the Citv Response, Any language not quoted verbatim, does not alter the meaning, interpretation and/or application of the terms and conditions of this Sub-License of Occupation to the Trio, Parts not referenced by the Plaintiff, do not alter the meaning, interpretation and/or application of this Sub-Licence as set out and put forth by the Plaintiff at para. 38 of his Claim, and. are not taken out of context. The Sub-Licence, for the most part, speaks for itself and is far too long, for any verbatim quotes Para, 14 of the City Response Pursuant to, infer alia s. 21.2 of the Skaha Marina- Waterpark Development Agreement, the City has incurred a liability if it breaches any terms or ‘conditions of this Agreement. Purswant to s. 25.1, the City is liable to expend monies if Trio fails or is in default of any of the terms and conditions, and/or its duties in this Agreement. Should Trio become bankrupt, the City has agreed to be liable for any such debts incurred by Trio, including but not restricted to clean up efforts of the lands at issue, Pursuant to, inter alia s. 18,5 of the Skaha Marina ~ Marina Development Agreement, Penticton is liable for repairs should Trio be unable to pay for them, for example, if Trio becomes insolvent or enters into bankruptcy proceedings, Pursuant to s. 22.2 of this Agreement, the City has incurred a liability if it breaches ary terms or conditions of this Agreement. Pursuant to s. 27.1, 27.2, the City is liable to expend monies if Trio fails or is in default of any of the terms and conditions, and/or its duties in this Agreement. Should Trio become bankrupt. the City has agreed to be liable for any such debts incurred by Trio, including but not restricted to clean up efforts of the lands at issue, ‘These also amount to contingent commitments or liabilities as this would normally be interpreted. Should Trio fail in its financial obligations, the City will be liable for so doing as well pursuant to para. 11.3 of its Licence of Occupation with the Crown. Should Trio fail to pay its liabilities to the City pursuant to these /.greements, then Penticton will have assumed these liabilities pursuant to its Licence with the Crown. Para. 15 of the City Response, The land at issue was in fact dedicated to the public by previous owners of the land, and so done with the filing of plans with Land Titles, as noted at s. 29(1) of the ‘Community Charter. The City has leased the land to Trio as a colourable attempt to evade its obligation and necessity for passing appropriate bylaws, which could then not be done without approval of the electors. Para. 16 of the City Response. The City dedicated the lands at issue herein, previously dedicated to the City in trust as permanent park land, by way of a dedication as a public park in s. 2, Schedule G of Bylaw 2002-42. This remains to the present. Passing such a zoning amendment bylaw to change this zoning from current P2 Parks to commercial, does and would constitute a removal of the original dedication as set out in s. 2, Schedule G of Bylaw 2002-42. The City is permitting large scale, private commercial use of Skaha Park to generate revenue for a private corporation, under the guise of an accessory use of the park.ia) 20. Para. 17 of the City Response. Any language not quoted verbatim, does not alter the meaning, interpretation and/or aplication of the terms and conditions of these Agreements with Trio. Parts not referenced by the Plaintiff, do not alter the meaning, interpretation and/or application of these ‘Agreements as set out and put forth by the Plaintiff at para. 48, 49 of his Claim, and are not taken out of context. These Agreements, for the most part, speak for themselves and are far too long for any verbatim quotes. 21. Para, 18 of the City Response. Environmental concems are a condition to be fulfilled prior to signing the Agreements, not a consideration ex post facto. The City has failed to provide any details, of its environmental cbligations, including but not restricted to outlining the nature of these obligations and their timelines, as well as any disaster relief measures, both in its Response and in the Agreements. The City has failed to notify and/or seek the consent of the Federal Goverment for the commercial activities permitted in its lease to Trio, and which involve water/ereek areas that are within the jurisdiction of the Federal Government, with respect to fisheries and/or navigation, 22. The City has historically obtained permission from Canada for its marina, in approximately 2003- 2003, It is required to s> do for any improvements thereon (directly or indirectly prior to assignment, of leases herein to Trio), which, as it is also on Crown in Right of British Columbia land, require consent of the Provincial Crown, specially the Departments of Fisheries and Transport Canada, Department of Navigation. 23. Para, 19 of the City Response. Any language not quoted verbatim, does not alter the meaning, interpretation and/or application of the terms and conditions of these Agreements with Trio. Paris not referenced by the Plaintiff, do not alter the meaning, interpretation and/or application of these Agreements as set out znd put forth by the Plaintiff at para, 54 of his Claim. and are not taken out of context. These Agreements, for the most part, speak for themselves and are far too long for any verbatim quotes. 24. Pava.2] of the City Response. The City has provided no altemate explanation as to the intentions of para. 56, and its meaning and application. ‘The City has already extended the timelines in these Agreements by way of notice to Trio in September/Octaber 2015, preserving its rights under this section. Additional Facts in City Response 25, The Plaintiff agrees w th the facts at Division 3 — Additional Facts, para. 1, 2 of the City’s Response, but denies that these Agreements were lawful Part 3: Legal Basis 26. On a fundamental basis, pursuant to s. 8(1) of the Community Charter, the powers of the City to pass bylaws and enter into these Agreements, are subject to and must be exercised in accordance ‘with, all other statutes, >ylaws, common law and equitable principles. 27. Pava.2 of the City Response. Most if not all of the land at issue that is not Crown Land, was in fact, dedicated to the public by previous owners of the land, and so done with the filing of the appropriate plans with Land Titles, as noted at s. 29(1) of the Community Charter. The City has leased the land to Trio as a colourable attempt to evade its obligation and necessity for passing appropriate bylaws, which could then not be done without approval of the electors.28, 29, 30. 32, 33, 34, 8) Para, 3.4 of the City Response. Land to be dedicated or reserved as a park pursuant to s. 30 of the Community Charter requires a zoning variance, which was passed by over 2/3 of the City Council in respect of the lands at issue herein by way of a dedication as a public park in s. 2, Schedule G of Bylaw 2002-42, ‘The present zoning, P2 Parks and Recreation in Zoning Bylaw 2011-23 does not permit the intended commercial uses, including a commercial waterpark, restaurant and beer and wine store, thus a zoning bylaw amendment would normally be required by the City prior to leasing the impugned park land for these uses.’ Notwithstanding, in the absence of such a zoning bylaw amendment, as is. the case at present, the City was want of jurisdiction to pass the Resolution on June 29, 2015 permitting the City to enter into these Agreements Passing a zoning ameniment bylaw to change this zoning from current P2 Parks and Recreation to some commercial zoniig as would be required would have the effect of, and would constitute a removal of the original dedication as set out in s. 2, Schedule G of Bylaw 2002-42, and thus requires the assent of the electors pursuant to s. 30(3) of the Charter Division 5 of Part 8 of the Local Government Act RSBC 2015 Chapter 1, is not restricted to regional districts. Division 5 is a statutory extension of s. 30 of the Community Charter to regional districts only, and not to the exelusion of municipalities and the City, as defined in Schedule A, def. “local authority” and “municipality”, and as thereafter used in s. 30 of the Charter. Para, 5 of the City Response. The City"s power is not unlimited, and is restricted, inter alia by Various statutes, bylaws, previous agreements and contracts, and various common law and equitable principles. Once the Licence of Occupancy from the Crown in Right of British Columbia to the City expires in 2024, any and all improvements therein, inclusive of any restaurants and any waterpark, become the sole property of the Crown,” and, this and the City’s want of jurisdiction to sublease or sublicense and on the terms so granted not being mentioned in the Agreements with Trio, could reasonably leave the City open to ¢ lawsuit for negligence, misrepresentation, and/or upon other grounds. The developments at issue, especially the waterpark. are not encompassed within the very nature and definition of a “put lic park”. They are not subordinate to the primary use as a park, but rather, are, relatively speaking, large scale commercial developments unto themselves, and inconsistent with zoning requiremets, ‘They are the ‘foot in the door’ to admitted, subsequent commercial developments such as a hotel. They are likely, if permitted, to result during daytime hours (especially during summer from June ~ September), with significant and/or excessive amounts of noise, garbage/waste, and constitute a nuisance Para, 6 of the City Response. Insofar as the City relies upon s. 73.1 of the Land Titles Act, as interpreted by the City, 5. 73.1 is and would be, unconstitutional and contrary to the rule of law. One ‘cannot be prohibited by law from taking certain actions, while simultaneously being permitted to break the law. Statutory provisions cannot permit someone to be above the law, or take actions 5. 8) Commi’ Charter. However, this is not applicable herein, as the original dedication of the land by the original ‘owners to the City, required that these lands could only be used as a public park, unless by the assent of the electorate. Prior to having the power to pass any such bylaw, the City is required to obtain the assent of the electorate, April 21, 2004 Licence of Oceupaney from the Crown tothe City, para. 4.18), 5.1(D)(m)26, 37, 38, 39, 40. 41 42, (61 contrary to the law as already existing, Para. 7 of the City Response. Pursuant to, inter alia s, 21.2 of the Skaha Marina- Waterpark Development Agreemet, the City has incurred a liability if it breaches any terms or conditions of this Agreement. Pursuent to s. 25.1, the City is liable to expend monies if Trio fails or is in default of any of the terms ard conditions, and/or its duties in this Agreement. Should Trio become bankrupt, the City has agreed to be liable for any such debts incurred by Trio, including but not restricted to clean up ef‘orts of the lands at issue. Pursuant to, inter alia s 18.5 of the Skaha Marina - Marina Development Agreement, Penticton is liable for repairs shoulc Trio be unable to pay for them, for example, if Trio becomes insolvent or enters into bankruptcy oroceedings, Pursuant to s. 22.2 of this Agreement, the City has incurred a liability if it breaches any terms or conditions of this Agreement. Pursuant to s. 27.1, 27.2, the City is liable to expend mon es if Trio fails or is in default of any of the terms and conditioris, and/or its duties in this Agreement. Should Trio become bankrupt, the City has agreed to be liable for any such debts incurred by ‘Trio, including but not restricted to clean up efforts of the lands at issue. ‘These amount to contingent commitments or liabilities as this would normally be interpreted, Should Trio fail in its f nancial obligations, the City will be liable for so doing as well pursuant to para. 11.3 of its Licence of Occupation with the Crown, Should Trio fail to pay its liabilities to the City pursuant to these Agreements, then Penticton will have assumed these liabilities pursuant to its sence with the Crowr Para. 8 of the City Response. Pursuant to s. 8(1) of the Community Charter, a municipality has the capacity, rights, powers and privileges of a natural person of full capacity. Estoppel applies to natural persons where the facts support same, such as would invoke this principle. The City has met the test for invoking estoppel against it. The City is required to keep all its commitments, promises, and previous agreements, acceptances and representations, inclusive of the terms of dedication of these lands by the previous owners. The City is not, by entering into and signing these Agreements, acting within its lawful authority, powers and jurisdiction, and contrary to the trust provisions upon which these lands were originally dedicated. and its own bylaws. Para, 9-11 of the City Response. As the initial dedications of land to the City for park use are decades old, the Plaint ff has no other option but to seek out and exercise his rights as a person affected by the developments, and his right of public interest standing, set out in, inter alia, Borowski® and Finlay’, Section 64(a).(b)(j) of the Community Charter provide a further basis for the Plaintiff's standing and cause of action herein Public interest standing has been extended to include the relief sought herein by the Plaintiff, including administrative action by the City such as these Agreements, which were agreed upon and signed by the City by way of Resolution, The Agreements signed by the City were without jurisdiction to so do. It is a reasonable and effective means to bring the challenge before the Court. Such standing is desirable from the point of view of ensuring lawful action by goverament/municipal actors, Minister of Justice Canada v Borowski 1981 2 SCR S75 Finlay v Canada (Minister of Sinanee) 1986 2 SCR 60743, 44, 45, 47. 48, 49. 50. m ‘There is no difference in law, whether court action involves challenges to legislation or bylaws, or alleges actions (including administrative) taken by municipal bodies without jurisdiction to so do. Both have the same result where the actions taken are ulira vires or void, as the case may be. Finlay stands for the p-inciple that upon a finding that standing exists herein, this becomes then indistinguishable from the issue of a cause of action. ‘Though the City has the powers pursuant to s. 260 of the Community Charter to enforce, prevent or restrain the contravention of its bylaws, and prosecute same, itis in a conflict of interest and cannot be a judge in its own cause, where the decision to be taken involves one of deciding whether to take legal action against itself, nor to make the decision of whether it has violated its own bylaws, In such Circumstances, it is up to the public to so do, especially where they are directly or indirecily affected. Section 274 of the Coramunity Charter, though permitting the City to enforce its bylaws. is in a conflict of interest and the City cannot be a judge in its own cause, where the decision to be taken involves one of deciding whether to prosecute itself or take civil, legal action against itself, nor to make the decision of waether it has violated its own bylaws. In such circumstances, itis up to the public to so do, especially where they are directly or indirectly affected. Both s. 260 and 274 apply to permit the City to take actions where orhers have violated City Bylaws only Section 278 of the Consmunity Charter expressly provides for a dispute mechanism between the Provincial Government and municipalities, where the Province here has taken no such action herein. Section 284 provides for a dispute resolution mechanism where there are disputes between the Provineial Govermen: and the municipality. There is no provision however, for a dispute mechanism where members of the public are desirous or feel the necessity to take such actions herein, against the City, to ensure its compliance with its own Bylaws, Resolutions and administrative, legal duies and obligations, in protection of their own rights and/or liberties, and/or interests. ‘There are no punitive zctions that can be taken, such as laying charges, for failure by the City 10 ‘comply with the land cledication conditions, or provisions of the Community Charter and Local Government Act, requiring assent of the electors in conditions such as herein. Even if such was the case, this is the only, test and reasonable method available to the Plaintiff to enforce his rights, private and public. Para, 12-17 of the City Response. The Plaintiff denies the City’s responses herein, and pleads its case aS set out herein «nd in his Notice of Civil Claim in reply thereto, and to the entire City’s Response, Para. 13 of the City Response. The City fails to particularize what primary use in ss. 1-8 of s, 13.2.1 of the Zoning Bylaw 2011-23, that waterpark, marina and beer store are accessory to. “Accessory use”, as defined in s. 4.2 of Zoning Bylaw 201 1-23, requires usages that are “exclusively” dedicated to, and located on the same lot as the permitted uses, as set out in ss, 1-8 of s. 13.2.1 of this Bylaw. The existing and proposed and licenced indoor/outdoor restaurant located in the marina building, and proposed seer and wine store, are not. nor has historically ever been an accessory use to the operation of the marina or any other permitted uses in the Zoning Bylaw. Serving liquor at the marina, restaurant and/or retail sales outlet, is incompatible with normal park usages, and further contrary to all government attempts to divorce alcohol from driving, whether boats or cars, and could eave Trio and/or the City open to possible civil suits in the event of an accident attributable to alcohol served at this esiablishment.31 52, 35. 56. [8] Virtually every Chapte: in the Zoning Bylaw where a restaurant is permitted, is listed as a separate category of expressly ermissible activity, including Zone 11.10 CT1- Tourist Commercial, and Zone 13.1 PI — Public Assembly. Section 13.2 — P2 — Parks and Recreation does not so do, and it was expressly excluded from these permitted uses by the City in this Bylaw, to express the City’s intentions to exclude restaurants from such locations. In all such zoning classifications below from the Zoning Bylaw 2011-23, “accessory use” is listed as a permitted use, incl ding as to restaurants, Expressio unius est exclusio alterius applies. Chapter 11 — Commercial Zones ALL C1] —Commercial Transition ILLIA 112 C2 Neighbourhood Commercial 112.15 113 C3 Commercial Residential Mixed Use 11.3.1.11 114 C4 General Commercial 11.4.1.23 ILS C5 — Urban Centre Commercial 115.130 11.6 (C6—- Mixed Use Commercial 11.6.1.22 WT C7 Service Commercial 11,7.1.26 Lo C9 - Marina Way Commercial 11.9.1. Lsiv 19.13%, 1110 CTI Tourist Commercial HAO. TL12 CT3 Hotel Resort 121.12.1.7 121 M1 General Industrial 12.1.1.22 131 PI. Public Assembly 1B.L116 14.1 CDI Comprehensive Development (400 Martin St.) 14.1.2.20 ‘The waterpark is not aa accessory use to any permitted use in ss. 1-8 of s, 13.2.1 of the Zoning. Bylaw for Parks and Recreation nor as defined in s. 4.2, and the examples set out therein (def. ‘accessory use”. “ouidoor amusement, entertainment and recreation”). Admittedly the examples in these said two definitions are not exhaustive, however, applying ejusdem generis and principles of statutory interpretation, this was not to include such a large scale commercial development of this, nanure ‘The lease of this land, which constitutes a legal disposition of the property. constitutes thereafter for the term of this lease, p'ivate property of Trio, who has the exclusive power to exclude anyone it so wishes. It has all the powers of a private landowner or tenant, which alters the original meaning of 2 “Public Park" as being, fundamentally, publically accessible land, ie: all park land that is open to everyone as of right. There is a legally unauthorized transfer of power from the City to Trio, The City has advanced an unreasonable and unintended interpretation of the 2002-42 Bylaw and Zoning Bylaw 2011-23 Pursuant to the Fisheries Act R.S.C. 1985 c. F-14 and the Navigation Protection Act RS.C. 1985. c. N-22, the City was required to notify the Department of Fisheries and the Department of Navigation of these Agreements, and obtain permission and/or authorization from them and failed to so do. Both have ju‘isdiction over Skaha Lake pursuant to the Jmerpreiation Act of Canada, definition of “Canada”, and an agreement between the City and Canada circa 2004 - 2005. There is, Zoning Bylaw 2011-23 s. 4.2 Definitions(9) no provision in any legislation, bylaws or regulations to enforce same. This devolves upon affected persons to so do. ‘The Plaintiff's address for service is 2929 Coleman St Penticton, British Columbia V2A 7C9 Phone: 250 492-2782 Fax # for service: 250-492-0549 Email address for service: _nsison45_00@yahoo.com Place of Trial: Penticton, British Columbia Address of Registry: 100 Main St., Penticton British Columbia Dated this2]_ day of September, 2016 \\ ‘Nelson Howard Meikle Rule 7-1 (1) of the Supreme Court Civil Rules states: (J) Unless all parties uf record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period. (@) prepare a list of documents in Form 22 that lists (all documents that are or have been in the party's possession or control and that could, if available, be used by any party at trial to prove or disprove a material fact and (1) alll other documents to which the party intends to refer at trial, and (®) serve the list or all parties of record.‘Nelson Howard Meikle Pl ff v City of Penticton = and- Trio Marine Group Ine. Defendants Proceedings commenced at Penticton IN THE SUPREME COURT OF BRITISH COLUMBIA Plaintiff Reply to Defendant City of Penticton ‘Nelson Howard Meikle 2929 Coleman St. ish Columbia V2A 709 492-2782Form 7 (Rule 3-6(1) ) Supreme Court file no, 041046 Penticton Registry IN THE SUPREME COURT OF BRITISH COLUMBIA ‘Nelson Howard Meikle, Plaintiff, City of Penticton and Trio Marine Group Inc. Defendants. Reply Filed by ‘The Plaintiff, Nelson Howard Meikle In reply to: - The Response the Defendant Trio Marine Group Inc. (Trio) In general Reply to all paragraphs of Trio Responses, where no mention is made herein below, the Plaintiff denies all such Responses from the Defendant, 2. The Plaintiff replies to Trio in the order set out in its Response. In Reply to the Response to Civil Claim of Trio (Trio Response) 3. Para. 2 of Trio Respoase. As a person who has direct interest in the use of the land at issue from his use of the park and rnarina, as well as having public interest standing flowing from the dedication of the land, from municipal bylaws and Provincial and Federal legislation, and his public right of Access to public parks, directly and/or via invitation, the Plaintiff does have the right (and/or duty, and/or power) to seek the relief being sought 4 Para, 3 of Trio Response. Trademark Industries was the corporation who first responded to the ‘May 17, 2013 Expression of Interest from the City. In 2013, there was no such company as Trio Marine Group Inc.10, un 12 a) Para. 8 of Trio Response, Bylaw 2002-42 is itself, restricted in its application by the Zoning, Bylaw, 2011-23, which remains in effect to the present, and does not permit the large-scale ‘commercial uses sought by Trio as set out in the Skaha-Marina and Skaha-Waterpark Development Agreements (the Agreerents). ‘Trio has advanced an unreasonable and unintended interpretation of the 2002-42 Bylaw and the Zoning Bylaw 2011-23 Para. 9 of Trio Response, The Plaintiff agrees with the facts set out by Trio in this paragraph, save to state that the unspecified lease referred to by Trio for the gas pumps and boat slips, is in fact a lease from the Province to the City, who thereafter sub-leased to Trio to be used for the operation of the marina, Para. 10 of Trio Respoase. The building is situated on both Crown land and City land, and includes the marina offices and administrative areas. The Plaintiff agrees that there is a kitchen, however this is located on the Crown land portion of this building, with an outdoor restaurant service area also located on Crown land. Para. 11 of Trio Response. The definition of “accessory use” in s. 4.2 of Zoning Bylaw 2011-23, does not support Trio’: interpretation of the “accessory use. building or structure” clause in this bylaw. Historical use of the marina building and surrounding areas of both Crown and City land, have never included a rastaurant thereon, and itis not a normal accessory use thereto. ‘The only two applicable uses at present on this land, as set out at para. 4.2 and 13.2.1 of Zoning Bylaw 2011-23, ss. 1-8, are a marina and parking lot. The marina is essentially and outdoor parking lot for boats. A restaurant is not an accessory use, as defined in the bylaw - to any parking lot for cars or boats. ‘Trio fails to particularize what primary use in ss. 1-8 of s. 13.2.1 of the Zoning Bylaw 2011-23, that waterpark, marina and beer store are accessory to. “Accessory use”, as defined in s. 4.2 of Zoning Bylaw 2011-23, requires usages that are “exclusively” dedicated to, and located on the same lot as the permitted uses, as set out in ss. 1-8 of s. 13.2.1 of this Bylaw. ‘The existing and proposed and licenced indoor/outdoo* restaurant located in the marina building, and proposed beer and wine store, are not, nor has historically ever been an accessory use to the operation of the marina or any other permitted uses in the Zcning Bylaw. Serving liquor at the marina, restaurant and/or retail sales outlet is incompatible with normal park usages, and further contrary to all government attempts to divorce alcohol from driving, whether boats or cars, and could leave Trio and/or the City open to possible civil suits in the event of an accident attributable to alcohol served at this establishment. ‘Virtually every Chapte* in the Zoning Bylaw where a restaurant is permitted, is listed as a separate category of expressly permissible activity, including Zone 11.10 CT1- Tourist Commercial, and Zone 13.1 — Pl — Public Assembly. Section 13.2 ~ P2 — Parks and Recreation does not so do, and it was expressly excluded from these permitted uses by the City in this Bylaw, 10 express the City’s intentions to exclude restaurants from such locations.1B. 14. 15, 16, 17. 8) In ll such zoning classifications below from the Zoning Bylaw 2011-23, “accessory use” is listed as a permitted use, including as to restaurants, Expressio unius est exclusio alrerius applies. Chapter 11 — Commercial Zones 1.1 Cl Commercial Transition LALLA 11.2 C2 Neighbourhood Commercial 1215 113 C3 Commercial Residential Mixed Use H3111 114 C4 General Commercial 11.4,1.23 11S CS—Urban Centre Commercial 115.130 11.6 — C6—Mixed Use Commercial 11.61.22 1.7 CT~Service Commercial 11.7.1.26 119 C9-Marina Way Commercial 11.9.1. Lxiv 1.9.1.3. 11.10 CTI Tourist Commercial 11.10.17 11.12 CT3 Hotel Resort 11.12,1.7 12.1 Mi General Industrial 12,1.1.22 13.1 Pl Public Assembly 13.1.1.16 14.1CD1 Comprehensive Development (400 Martin St.) 14.1.2.20 ‘The waterpark is not an accessory use 1o any permitted use in ss, 1-8 of s, 13.2.1 of the Zoning Bylaw for Parks and Recreation nor as defined in s, 4.2, and the examples set out therein (def. ‘accessory use”, “outdoor amusement, entertainment and recreation”), Admittedly the examples in these said two definitions are not exhaustive, however, applying ejusdem generis and principles of statutory interpretaticn, this was not to include such a large scale commercial development of this, nature. The lease of this land, which constitutes a legal disposition of the property, constitutes thereafter for the term of this lease, private property of Trio, who has the exclusive power to exclude anyone it so ‘wishes, Ithas all the powers of a private landowner or tenant, which alters the original meaning of “Public Park” as being, fundamentally, publically accessible land, ie: all park land that is open to everyone as of right. Trere is a legally unauthorized transfer of power from the City to Trio, Para. 12 of Trio Response. Any language not quoted verbatim, does not alter the meaning, interpretation and/or application of the terms and conditions of this Sub-License of Occupation Paris not referenced by the Plaintiff, do not alter the meaning, interpretation and/or application of this Sub-Licence as set out and put forth by the Plaintiff at para. 38 of his Claim, and are not taken out of context. The Sub-Licence, for the most part, speaks for itself and is far too long for any verbatim quotes Para, 48, 49,84 of Trio Response. Any language not quoted verbatim, does not alter the meaning, interpretation and/or application of the terms and conditions of the Agreements. Parts not referenced by the Plaintiff, do not alter the meaning, interpretation and/or application of these Agreements as set out and put forth by the Plaintiff'in his Claim, and are not taken out of context. These Agreements, for the most part, speak for themselves and are far too long for any verbatim quotes. Zoning Bylaw 2011-23 s. 4.2 Definitions(a 18, Para, 15 of Trio Response. Environmental concems are a condition to be fulfilled prior to signing the Agreements, not a consideration ex post facto. The City has failed to provide any details of its environmental obligations, including but not restricted to outlining the nature of these obligations and their timelines, as well as any disaster relief measures, both in its Response and in the Agreements. The City has failed to notify and/or seek the consent of the Federal Government for the commercial activities permitted in its lease to Trio, and which involve water/creek areas that are within the jurisdiction of the Federal Government, with respect to fisheries and/or navigation. 19. Para, 16 of Trio Respense. Trio has provided no altemate explanation as to the intentions of para. ‘86, and its meaning and application. The City has already extended the timelines in these Agreements by way of notice to Trio in September/October 2015, preserving its rights under this section, The words speak for themselves. ‘The Plaintiff's address for sexviee is 2929 Coleman St. Penticton, British Columbia V2A 7C9 Phone: 250 492-2782 Fax # for service: 250 492-0549 Email address for service: _nelson45_00@vahoo.com Place of Trial: Penticton, British Columbia Address of Registry: 100 Main St., Penticton British Cotumbia Dated this 2Y day of September, 2016 ‘Nelson Howard Meikle Rule 7-1 (1) of the Supreme Court Civil Rules states (2) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period, (@) prepare a list of documents in Form 22 that lists @ alll documents that are or have been in the party's possession or control and that could, if available, be used by any party at trial 10 prove or disprove a material fact. and (i) alll other documents to which the party intends to refer at trial, and (B) serve the list on all parties of record.Nelson Howard Meikle Plaintiff we City of Penticton - and - ‘Trio Marine Group Inc. Defendants, Supreme Court file no. 041046 commenced at Penticton IN THE SUPREME COURT OF BRITISH COLUMBIA. Plaintiff Reply to Defendant Trio Marine Group Inc. ‘Nelson Howard Mei 2929 Coleman Penticton, British Columbia V2 7C9 250 492-2782