Is the City of White Rock legally justified in applying parking bylaws to BNSF property – the waterfront lots south of Marine Drive – and enforcing parking tickets for those who don’t pay?
Former White Rock resident Paul LeMay, who recently received just such a ticket, is betting the city doesn’t have the legal authority, and he’s willing to take that bet to court as a test case.
If he’s proven right, he said, the case could have far-reaching consequences for the city.
“This could have a cascade effect,” LeMay said last week. “People could, en masse, stop paying (in the lots). And it’s a major source of revenue for the city.”
Mayor Wayne Baldwin, however, said Monday that he is “absolutely” confident the city has the authority to issue such tickets.
“If I were him, I wouldn’t waste my money on a lawyer,” Baldwin said. “How confident am I? I would wager my firstborn on it.”
LeMay’s case will hinge on some definitive rulings about the status of the land owned by Burlington Northern Santa Fe Railway, he acknowledges. He believes it falls under federal jurisdiction because the BNSF is a railway, while the city operates under the authority of a provincial statute.
And even though the city leases the land from BNSF, and operates it as a parking facility with the railway’s consent, he’s doubtful that gives the city the right to apply its parking bylaws to private land.
Now a Vancouver resident, LeMay admits his challenge to the city was deliberate. Visiting with friends in White Rock Feb. 2 to celebrate Groundhog Day, he parked in one of the waterfront lots.
“I was going to put money in the meter. But a friend of mine, who lives in White Rock, told me that a lot of people park down there and if they get a ticket, they don’t pay. Nothing ever happens – and that made me wonder if the city actually had the authority to write tickets on that property, and maybe that’s why nothing happens.”
The next day he called the city and told a representative of the bylaws department that he was going to contest the ticket in court.
“The person I talked to said, ‘but White Rock has a lease contract with the BNSF Railway.’ I said, ‘yes, and…?’”
LeMay, who lived in the community in 2005-2006, was founder of the Semiahmoo Peninsula Citizens for Public Safety Coalition – later Smart Rail – which has advocated for relocation of BNSF’s shoreline track.
But he maintains his action with regard to the parking ticket is not part of any Smart Rail agenda.
“If it was, I would have sat down with members of their board and discussed it with them before doing anything,” he said, noting he is no longer an active member of the group.
The retired LeMay noted he is not a lawyer, but that he has had some experience of law in a career in Ottawa that included being a special assistant to Sen. Sheila Finestone and working for the occupational health and safety section of Human Resources Development Canada. That, he said, leads him to believe enforcing city parking bylaws within the lots could be ruled ‘ultra vires’ – or beyond the power – of the city government.
He believes that the land use is comparable with private parking lots in the City of Vancouver, where parking is a contractual agreement with a private entity, or First Nations land, which falls under federal jurisdiction rather than local government bylaws.
And he’d like to see a definitive of the property line between BNSF and city property.
“This is a test of law and some of the finer points of law,” LeMay said. “I’m actually doing the City of White Rock a favour.”
If it were found that the city doesn’t have the authority to write tickets in the lots, LeMay noted, “it could be open season down there.”
– with files from Tracy Holmes