development-plans-zoning-and-hearings-in-vancouver.html.pm

#lang pollen

◊define-meta[page-title]{Development plans, zoning, and public hearings in Vancouver}
◊define-meta[short-title]{Public hearings in Vancouver}
◊define-meta[original-date]{2021-05-31}
◊define-meta[edited-date]{2023-11-01}
◊define-meta[snippet]{Why Vancouver Council can't avoid public hearings for rezonings like other municipalities can}

◊declare-work[#:id "Scenescapes" #:type "book" #:author-given "Daniel
Aaron" #:author-family "Silver" #:author2-given "Terry Nichols"
#:author2-family "Clark" #:title "Scenescapes: How Qualities of Place
Shape Social Life" #:year "2016" #:publisher "University of Chicago
Press" #:publisher-location "Chicago"]

◊declare-work[#:id "LGA" #:type "statute" #:title "Local Government
Act" #:volume "RSBC" #:year "2015" #:chapter "1" #:short-form "*LGA*"
#:url
"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/r15001_00_multi"]

◊declare-work[#:id "VC" #:type "statute" #:title "Vancouver Charter"
#:volume "SBC" #:year "1953" #:chapter "55" #:url
"https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/vanch_00_multi"]

◊declare-work[#:id "RS-1" #:type "custom" #:custom-format "City of
Vancouver, *Consolidated Zoning and Development By-Law*, RS-1 District
Schedule" #:url
"https://bylaws.vancouver.ca/zoning/zoning-by-law-district-schedule-rs-1.pdf"
#:short-form "RS-1 District Schedule" #:display-url? "yes"]

◊declare-work[#:id "Pitt Polder" #:type "legal-case" #:title "Pitt
Polder Preservation Society v Pitt Meadows (District)" #:citation
"2000 BCCA 415" #:url "https://canlii.ca/t/5315"]

◊declare-work[#:id "Johnston" #:type "thesis" #:title "Local
Government Rural Land Use Planning in BC" #:author "Terry Johnston"
#:institution "University of British Columbia" #:thesis-description
"MA thesis" #:year "1990" #:url
"https://open.library.ubc.ca/cIRcle/collections/ubctheses/831/items/1.0302384"]

◊declare-work[#:id "CPR" #:type "legal-case" #:title "Canadian Pacific
Railway Co v Vancouver (City)" #:citation "2006 SCC 5" #:url
"https://canlii.ca/t/1mm2r"]

◊declare-work[#:id "2nd reading" #:type "debate" #:title "Bill C-62,
Municipal Amendment Act, 1985" #:reading "2nd reading" #:jurisdiction
"British Columbia" #:proceedings "Debates of the Legislative Assembly"
#:legislative-body "33-3" #:date "21 November 1985" #:url
"https://www.leg.bc.ca/documents-data/debate-transcripts/33rd-parliament/3rd-session/33p_03s_851121a"
#:short-form "*MAA* 2nd Reading"]

◊declare-work[#:id "CPR BCCA" #:type "legal-case" #:title "Canadian
Pacific Railway Co v Vancouver (City)" #:citation "2004 BCCA 192"
#:url "https://canlii.ca/t/1gvkh" #:short-form "*CPR* BCCA"]

◊declare-work[#:id "Municipal Act 1979" #:type "statute" #:title
"Municipal Act" #:volume "RSBC" #:year "1979" #:chapter "290"]

◊declare-work[#:id "MAA" #:type "statute" #:title "Municipal Amendment
Act, 1985" #:volume "SBC" #:year "1985" #:chapter "79"]

◊declare-work[#:id "MASA2" #:type "statute" #:title "Municipal Affairs
Statutes Amendment Act (No. 2)" #:volume "SBC" #:year "2021" #:chapter
"30" #:url
"https://www.bclaws.gov.bc.ca/civix/document/id/hstats/hstats/100630976"]

◊margin-note{I updated this article in October 2023, to reflect the
◊cite["MASA2"], which made the public hearing requirement even
◊em{less} onerous for municipalities other than Vancouver. Prior to
this amendment, municipalities other than Vancouver could ◊em{waive}
public hearings for propozed rezoning bylaws where the rezoning was
consistent with an existing official community plan. Now,
municipalities other than Vancouver simply ◊em{are not required} to
hold such a hearing; there is no need for council to expressly waive
the requirement.}

Vancouver has several ◊em{[official development
plans](https://vancouver.ca/home-property-development/zoning-and-land-use-policies-document-library.aspx#regulation-development-plans)}
(ODPs). These plans limit the uses that are allowed in certain
areas. For example, the [Arbutus Corridor
ODP](https://bylaws.vancouver.ca/odp/odp-arbutus-corridor.pdf)
designates the corridor for use only as a public thoroughfair. The
[Southeast Granville Slopes
ODP](https://bylaws.vancouver.ca/odp/odp-southeast-granville-slopes.pdf)
sets a maximum height for buildings and lists the uses that are
allowed in the area ("a mixture of residential uses, restaurant and
entertainment activities, other commercial activities, and intense
public activities").

If this were any other municipality in British Columbia, these plans
would streamline rezoning: they would remove the requirement for a
public hearing when the rezoning is consistent with an ODP for the
area. But Vancouver does not get this benefit from its ODPs. In this
blog post, I present how this difference came to be and argue that the
province should consider bringing the ◊em{Vancouver Charter} in line
with the ◊em{Local Government Act} on this point.

◊heading{Zoning and public hearings}

Municipalities use zoning bylaws to control land
use.◊note-see-generally["Scenescapes" #:pinpoint "Ch 7"] The province
has given municipalities the power to divide the land within their
boundaries into zones of any number, shape, or size and within each,
to regulate the use of the land.◊note{◊see["LGA" #:pinpoint "s 749"
#:terminal ";"] ◊cite["VC" #:pinpoint "s 565"] The ◊em{Local
Government Act} applies to municipalities other than Vancouver. The
◊em{Vancouver Charter} applies only to Vancouver.} Common restrictions
are the heights of buildings, maximum floor-space ratio, and the kinds
of uses that are allowed within a zone.◊note-see-eg["RS-1"]

Zoning significantly affects the kind of community that we
create.◊note-see-generally["Scenescapes" #:pinpoint "Ch 7"] So when a
municipal council makes, amends, or repeals a zoning bylaw, it must
first hold a public hearing (with one important exception, presented
later).◊note{◊see["LGA" #:pinpoint "s 566" #:terminal ";"] ◊cite["VC"
#:pinpoint "s 464"]} These public hearings are not as simple as
council just listening to speakers at a regular meeting. These public
hearings have strict notice requirements, people who would be affected
by the bylaw have procedural fairness guarantees and a right to be
heard, and council has disclosure obligations. The Court of Appeal for
British Columbia has said:

◊blockquote{

[44] ◊ellipsis There is an abundance of jurisprudence on the fundamental
importance of notice to the legitimacy of the decision-making process
in land use and zoning cases.  Simply put, failure to comply with the
notice requirements in relation to a public hearing undermines the
opportunity afforded the public to participate in the decision-making
process. Failure to comply with the notice requirement for a public
hearing on proposed land use or zoning bylaws generally results in the
bylaw being quashed.

[45] A public hearing on land use and zoning bylaws serves at least
two important functions: it provides an opportunity for those whose
interests might be affected by such a decision to make their views
known to the decision-maker and it gives the decision-maker the
benefit of public examination and discussion of the issues surrounding
the adoption or rejection of the proposed bylaw.

[46] Procedures aimed at ensuring a minimum standard of rationality in
the decision-making process are more likely to enhance the quality of
the decision and the public’s acceptance of it than decisions based on
undisclosed information, or on incomplete or ill-considered facts.

[47] As well, participatory procedures such as public hearings on land
use or zoning bylaws tend to dispel perceptions of arbitrariness, bias
or other impropriety on the part of local government in the
decision-making process and tend to enhance public acceptance of such
decisions. Put another way, the perception, if not the fact, of
arbitrariness or bias is more likely to arise if the duty to ensure
procedural fairness is not observed.◊note-cite["Pitt Polder"]

}

Vancouver's ◊em{[Procedure
Bylaw](https://bylaws.vancouver.ca/12577c.PDF)} describes the process
that Vancouver Council has adopted for public hearings. It is rightly
onerous and time-consuming.

◊fig[#:src "assets/public-hearing-notice.png" #:width "700px"]{This is
a sample notice for a public hearing from 2019.}

◊heading{Official community/development plans}

Official community plans and official development plans work at a
level above zoning.

All local governments other than Vancouver have a tool available to
them called an ◊em{official community plan} (OCP). The near-equivalent
in Vancouver is called an ◊em{official development plan} (ODP). These
describe a vision for planning more generally than at the level of
zoning. They have certain mandatory elements, including "location,
amount, type and density of residential development required to meet
anticipated housing needs over a period of at least 5 years," and "the
approximate location, amount and type of present and proposed
commercial, industrial, institutional, agricultural, recreational and
public utility land uses."◊note{See the full list at ◊cite["LGA"
#:pinpoint "s 473"]}

Official community plans cannot be adopted without a public
hearing.◊note-see["LGA" #:pinpoint "s 464"] Once a council adopts an
OCP, council becomes constrained by the OCP. "All bylaws enacted or
works undertaken by a council ◊ellipsis after the adoption of
◊ellipsis an official community plan ◊ellipsis must be consistent with
the relevant plan."◊note-cite["LGA" #:pinpoint "s 478(2)"] However, a
council also gains some efficiency if it develops consistenly with the
OCP: council "is not required to hold a public hearing on a proposed
zoning bylaw" that is "consistent with the OCP."◊note-see["LGA"
#:pinpoint "464(2)"]

Vancouver's official ◊em{development} plans similarly constrain
Council. However, there are two major differences. First, the
◊em{Vancouver Charter} does not require a public hearing before
passing an ODP. Only when the ODP designates a heritage conservation
area does Council need to hold a public hearing.◊note{◊see["VC"
#:pinpoint "s 562(3)" #:parenthetical "“Before adopting [an ODP
bylaw], if the official development plan designates a heritage
conservation area... the Council must hold a public hearing”"]
◊see-also["CPR" #:pinpoint "para 40" #:parenthetical "“[t]he Vancouver
Charter imposes no statutory requirement to hold a public hearing
before adopting an ODP”"]} Second, even when a proposed zoning bylaw
is consistent with an existing ODP, Council cannot avoid the public
hearing requirement for the zoning bylaw.

Again, the ◊em{Local Government Act} (applying to all municipalities
other than Vancouver) says that "[a] local government is not required
to hold a public hearing on a proposed zoning bylaw if (a) an official
community plan is in effect for the area that is subject to the bylaw,
and (b) the bylaw is consistent with the official community
plan."◊note-cite["LGA" #:pinpoint "s 464(2)"] There just is no
equivalent in the ◊em{Vancouver Charter}.◊note{The ◊em{Vancouver
Charter} does incorporate several portions of the ◊em{Local Government
Act}, but not Section 464. ◊see["VC" #:pinpoint "s 2.1"]}

◊heading{Why is Vancouver different?}

Vancouver didn't start out so different.

As recently as 1979, all municipalities in British Columbia were in
roughly the same position that Vancouver is in today on this
issue. Section 721(1) of the ◊em{Municipal Act}◊note{The precursor to
today's ◊em{Local Government Act}.} as it existed in 1979 simply said,
"A zoning bylaw shall not be adopted, amended or repealed except after
a hearing under section 720."◊note-cite["Municipal Act 1979"
#:pinpoint "s 721"] There was no possibility to waive that public
hearing, even when the community had an official community plan in
place. Unlike the situation in Vancouver today, those OCPs also
required a public hearing.◊note-see["Municipal Act 1979" #:pinpoint "s
711" #:parenthetical "“[t]he council shall not designate a community
plan as an official community plan unless it has held a public
hearing”"]

By the early 1980s, municipalities were getting frustrated with
inefficiencies in the planning process, particularily the
double-hearing requirement.◊note-see["Johnston" #:pinpoint "82"
#:parenthetical "“it is clear that the dual amendments
required... were a duplication of effort”"] Bill Ritchie, Municipal
Affairs Minister at the time, even said, "I fully believe once an
official municipal plan is in place, there is no further need for
planning personnel."◊note-cite["Johnston" #:pinpoint "84"]

The result was Bill 62, the ◊em{Municipal Amendment Act,
1985}.◊note-cite["MAA"] It introduced the public-hearing waiver for
zoning bylaws that are consistent with the community plan: "[w]here an
official community plan is in effect for the area that is subject to a
proposed zoning bylaw and the proposed bylaw is consistent with the
plan, a local government may waive the holding of a public hearing on
the proposed bylaw."◊note{◊cite["MAA" #:pinpoint "s 8" #:terminal ","]
which added the quoted text as s. 956(4) of the ◊em{Municipal Act}.}
Municipal Affairs Minister Bill Ritchie presented the following
motivation: "Bill 62 is designed to streamline the community planning
process. It is designed to regulate land use controls, especially in
the rural areas, to facilitate faster and more flexible responses to
development proposals, and to provide greater certainty for land
investors and local residents."◊note-cite["2nd reading" #:pinpoint
"7054" #:speaker "Hon Bill Ritchie"]

The impetus for the 1985 amendment was the double-hearing requirement
that had existed under the ◊em{Municipal Act} and which applied to
municipalities other than Vancouver. Their OCPs required public
hearings and so did their rezonings, even when consistent with their
OCP. Vancouver has never been legally subject to this double-hearing
requirement, other than when the OCP designates a heritage
conservation area. So the amendment focused on the the ◊em{Municipal
Act}, and the ◊em{Vancouver Charter} got left behind. Nonetheless,
even though not required, Vancouver has a policy to hold public
hearings before enacting official development plans.◊note-see["CPR
BCCA" #:pinpoint "para 94" #:parenthetical "“it has been the policy of
the City to hold a public hearing before enacting [an ODP bylaw]”"]
The status quo today is that Vancouver Council subjects itself to a
double-hearing process: one for the ODP and another for rezonings even
when consistent with the ODP.

In the early 1980s, the complaint was that two stages of public
hearing was a "duplication of effort" and that planning "had a
tendency to create unnecessary bureaucracy."◊note-cite["Johnston"
#:pinpoint "82"] Vancouver is facing similar issues today. Vancouver
Council and the province should deliberately consider whether this
distinction between the ◊em{Local Government Act} and the
◊em{Vancouver Charter} continues to make sense. If Vancouver Council
is going to use a public hearing process for its ODPs, it should get
the same efficiency reward that other municipalities get (that a
public hearing is not required for rezonings consistent with the
ODP).◊note{And if Vancouver Council wants to retain flexibility, the
avoidance of a public hearing (for rezonings that are consistent with
the ODP) could be conditioned on the ODP itself having been subject to
a public hearing.}

◊heading{A concrete proposal}

In my view, the above suggestion could be implemented by deleting
s.◊nbsp{}566(1) of the ◊em{Vancouver Charter} and inserting:

◊q{

(1) Subject to subsection (1.01), the Council must not make, amend, or
repeal a zoning bylaw without holding a public hearing on the bylaw,
and an application for rezoning shall be treated as an application to
amend a zoning bylaw.

(1.01) The Council is not required to hold a public hearing on a
proposed zoning bylaw if

◊nbsp{}◊nbsp{}◊nbsp{}(a) an official development plan is in effect for the area that is the
subject of the zoning bylaw,

◊nbsp{}◊nbsp{}◊nbsp{}(b) the official development plan was passed after a public hearing
for the purpose of allowing the public to make representations to the
Council respecting matters contained in the official development plan,
and

◊nbsp{}◊nbsp{}◊nbsp{}(c) the zoning bylaw is consistent with the official development plan.

}