On Jan 8th 2018, the Supreme Court of British Columbia heard the case brought before them by the Caring Citizens of Vancouver Society (a coalition of concerned Vancouver residents).
Some $80,000+ was raised so that the citizens might have a voice.
Here is a short summary of the case being presented:
Petition Against the City of Vancouver Regarding the Temporary Modular Housing
Summary of the Petition as of December 20, 2017
On December 6, 2017, Caring Citizens of Vancouver Society (the “Society”) has, through its counsel McEwan Partners and with the collaboration from other senior lawyers, filed a petition to the Supreme Court of British Columbia for judicial review against the City of Vancouver regarding its decision to construct a Temporary Modular Housing (“TMH”). The petition was sent on notice to the City of Vancouver, the Attorney General for the Province of British Columbia, Onni Pearson Dogwood Holdings Corp., Horizon North Camp and Catering, Vancouver Affordable Housing Agency, British Columbia Housing Management Commission and Provincial Rental Housing Corporation.
The Court has now made either January 8 or 9, 2018 available for the hearing of the petition, depending on availability of counsel. The exact date of the hearing will be confirmed shortly by all counsel. It is anticipated that the hearing of the petition will need one day’s court time.
This is an application for judicial review brought pursuant to the Judicial Review Procedure Act to review: (1) the City’s decision to adopt Bylaw No. 11902; and (2) the Director of Planning’s decision to issue DP 2017-01062. Section 565.1 of the Vancouver Charter allows Council to zone for Amenities and affordable housing. Section 565.2 of the Vancouver Charter authorizes council, by bylaw, to enter into housing agreements for affordable and special needs housing. However, Council does not have the authority to enter into housing agreements that vary “the use or density from that permitted in the applicable bylaw”.
Section 566 of the Vancouver Charter requires Council to hold a public hearing at which all persons who deem themselves affected by a proposed bylaw may make representations to Council prior to making, amending or repealing a zoning bylaw. Section 566(3) requires that notice of the public hearing be published in accordance with section 3 of the Charter.
2.0 History of Amending the Bylaws Shows City Was Trying to Avoid Public Hearing
On January 24, 2017 Council adopted Bylaw 11724 which amended Bylaw 3575. Bylaw 11724 added the definition of TMH under “Dwelling Uses” and added a few soft conditions for the Director to consider prior to issuing a Development Permit for a TMH.
The October 25, 2016 Policy Report to Mayor and Council suggested that the new use of TMH be introduced in future CD-1 By-laws throughout the city. It also recommends the amendment of four CD-1 Zoning Bylaws to include TMH as a permitted use. However, the proposed amendments to the four CD-1 zoned properties did not proceed.
A memorandum dated December 13, 2016 from Gil Kelley, the Director of Planning, to Mayor and Council explained the reason for not proceeding with the proposed rezoning of the four CD zoned properties to include TMH as a use as follows: (1) new information regarding these sites that has arisen since referral to public hearing; and (2) The second reason relates to the public hearing notification and public process. Residents and neighbours have raised a number of legitimate concerns regarding the notification process. Several residents commented on the lack of public process in advance of the referral of all four sites to public hearing.
City Staff recommend proceeding with the amendment to the bylaws to introduce a definition and regulations for TMH. Accordingly, on September 19, 2017 the City held a public hearing to consider amendments to the general regulations of the Zoning Bylaw to “Delegate Discretionary Relaxation Powers to Expedite the Delivery of Low Cost Housing for Persons Receiving Assistance.” There was a short published notice for the September 19, 2017 public hearing, but the City did not hold open houses or public consultation meetings regarding the proposed amendments. According to the City’s website, the City received 1 letter in support, 9 letters of opposition and 1 letter under the category “other” in response to the proposed amendments.
The July 24, 2017 Policy Report issued by Gil Kelley states that Section 565A(e) of the Vancouver Charter grants Council the authority to relax provisions of a zoning bylaw for a number of purposes, including for “low cost housing for persons receiving assistance” and Section 565A(e) also provides Council with the power to delegate this authority to a city official or board composed of such officials.
On September 20, 2017 the City adopted Bylaw 11902 to permit relaxations for low cost housing for persons receiving assistance. Bylaw 11902 amended Section 3 of the Zoning Bylaw if the Director of Planning or the Development Permit Board first considers: (a) all applicable Council policies and guidelines; (b) the impact on the liveability of neighbouring residents; and (c) the proposed development is not in the RS-1, RS-1A, RS-1B, RS-2, RS-3 and RS-3A, RS-4, RS-5, RS-6, RS–7, RT-1, RT-4, RT-7, RT-9, RT-10 or RT-11 zoning district or in any other zoning district that permits one family dwellings and does not permit multiple dwellings.
3.0 Temporary Modular Housing is not a permitted use of the Property
The RT-2 District Schedule permits several outright uses and a number of conditional uses which may be approved by the Development Permit Board or the Director of Planning including Multiple Dwelling. However, TMH a defined use pursuant to section 2 of the Zoning Bylaw, is not a listed outright or conditional permitted use in the RT-2 Zone nor under the proposed new zoning for the Pearson Dogwood Lands. Pursuant to section of the City’s Zoning and Development Bylaw No. 3575. “Dwelling Uses”, “Multiple Dwelling” and “Temporary Modular Housing” are all separately defined. The City amended the Zoning Bylaw to add TMH housing as a defined Dwelling Use in January 2017.
In Bylaw 11902, Council did not amend the RT-2 District Schedule to add TMH has a permitted use in that Zone. Review of the amendments above also show that under the CD-1 District Schedule, TMH is not a permitted use either.
The Director of Planning does not have the authority to issue a Development Permit for a use that is neither permitted outright or conditionally under the applicable District Schedule. Only City Council has the authority to regulate use, and this power may only be exercised by bylaw following the required public hearing. The City Council cannot give to the Director of Planning a power that Council itself does not possess, namely the power to rezone land to permit new uses without first holding a public hearing.
4.0 Bylaw No. 11902 is Outside the Power of City Council and the Vancouver Charter
Bylaw No. 11902 was designed to circumvent and evade the mandatory public hearing requirement in section 566 of the Vancouver Charter. By amending the zoning bylaw to permit TMH in zones other than those listed in section 11 3.2.9(c), City Council is in effect rezoning all other zones to include TMH as a permitted use, all without public hearing.
Although the amendment of section 3 of the Zoning Bylaw purports to confer a power to relax the provisions of the zoning bylaw for the creation of low cost housing, the true purpose of the amendment is to give the Director of Planning the power to allow TMH on sites that are not zoned to permit the use.
5.0 The Public Notice Bylaw No. 11902 Was Improper
Section 566(3) of the Vancouver Charter require the City provide notice of public hearings to amend zoning bylaws. However, the City failed to provide proper notice of the public hearing regarding the adoption of Bylaw 11902. In East Broadway Residents’ Association v. Vancouver (City), the Court held at para. 27 that it may be inferred that notice under section 566 must provide sufficient information in general terms to alert the public of the purpose of the proposed zoning by-law so that interested persons may decide whether to seek further information from City Hall or attend the public hearing and make representations.
The purpose of Bylaw 11902 is to give the Director of Planning the power to permit TMH in all zones other than those listed in section 3.2.9(c). In light of what occurred at the December 2016 public hearing, the City must have known the published notice regarding the proposed amendment to section 3 of the Zoning Bylaw would not alert the public to the true purpose of the bylaw, which was to permit TMH on land not zoned for this use.
6.0 In the Alternative, if Bylaw No. 11902 is valid, the City Fettered the Director’s Discretion or, Alternatively, the Decision of the Director is Unreasonable.
Despite neighbourhood opposition, the development application was not referred to the Development Permit Board. On November 27, 2017 the Director of Planning for the City of Vancouver issued Development Permit DP 2017-01062. This was only two months after Mr. Kelly publicly represented, in September 2017, that if a proposed TMH were controversial, he would refer the application to the Development Permit Board, which would hold open meetings and allows for public comment.
At the time the Director of Planning made his decision to issue DP 2017-01062 the following contracts had been executed
- On or about September 27th, 2017 the City of Vancouver and BC Housing entered into a Memorandum of Understanding regarding the construction and operation of temporary modular housing.
- On or about October 4, 2017, City Council adopted a recommendation that it authorize VAHA to negotiate an agreement with Horizon North Camp and Catering Partnership (“Horizon North”) for design and construction of up to 600 units of temporary modular housing on sites to be selected, and that all such agreements be assigned to BC Housing.
- On October 19, 2017, City executed a contract with Onni to lease the Property for the TMH. This lease agreement is not subject to the issuance of the Development Permit.
- On October 23, 2017, Horizon North entered into a contract with BC Housing to design and build temporary modular housing on the Lands, to be completed by February 9, 2018. This contract is not subject to the issuance of the Development Permit.
- On or about October 25, 2017 the City of Vancouver notified residents surrounding the Property that it intended to build two modular housing buildings containing 78 units on the Property.
- The City sent out a notification postcard entitled “Temporary Modular Housing”, and held a few community information session between November 2, 2017 to November 9, 2017. Many residents of the area surrounding the proposed Project, including members of the Petitioner, objected to the proposed TMH project on the Pearson Dogwood Lands.
- At the time the Director of Planning made his decision to issue DP 2017-01062 Horizon North had executed a contract with Translink for storage of modules. The modules had started to arrive at the storage facility by at least December 1, 2017, indicating a much earlier order date.
- On or about November 6, 2017, in response to growing neighborhood opposition Mayor Robertson publicly stated “These sites are going to happen”.
Although the City conferred a discretion on the Director of Planning to relax the provisions of the zoning bylaw pursuant to section 3.2.9, it fettered his discretion by entering into the various agreements relating to the project prior to the Director of Planning making his decision to issue the Development Permit.
In summary, the Society is of the view that the City of Vancouver appears to have designed a plan to deprive the public and affected residents of the public hearing process. In the petition, the Society argues that the City Council cannot confer on the Director of Planning a power that the Council itself does not possess, namely the power to rezone land to permit new uses without first holding a public hearing. The Petition also refers to various facts and documents to support the argument that the City of Vancouver unlawfully fettered the discretion of the Director of Planning in the latter’s issuance of the subject Development Permit.
The Society seeks a declaration that Bylaw No. 11902 is invalid and should be quashed, a declaration that TMH is not a permitted use, an alternative declaration that the City unlawfully fettered the discretion of the Director of Planning and calls for quashing the Development Permit. It also seeks injunctions prohibiting the construction of the TMH.