CPR to appeal Arbutus ruling

Thursday, April 8th, 2004

Maurice Bridge

VANCOUVER – The Canadian Pacific Railway says it plans to appeal a B.C. Court of Appeal decision upholding the City of Vancouver‘s right to designate that the Arbutus railway corridor be developed only for specified public purposes.

The ruling was handed down on Wednesday.

“The decision today leaves us no option but to ask the Supreme Court of Canada for an appeal,” said Paul Clark, CPR’s vice-president of communications and public affairs. “We are very concerned with the decision.

“As a private landowner in Vancouver, this thing is extremely troubling and of concern to us when you find that the city can now designate private property for public use without negotiating with the owner.”

Vancouver Mayor Larry Campbell said he was happy with the ruling.

“We are very pleased that the B.C. Court of Appeal has upheld the powers of the city to preserve the Arbutus corridor,” Campbell said Wednesday. “The city wants to do what is in the best long-term interests of our citizens. We strongly believe the Arbutus corridor should be preserved as a whole, to be used in the future for transportation and greenway uses.

“Once the corridor is gone, it is gone forever. However, we know Vancouver will continue to evolve and the needs of residents will only increase.”

The 11-kilometre stretch of railway line runs from False Creek southward to Marpole on the banks of the Fraser River and includes more than 20 hectares of property. It is no longer used for railway purposes.

The battle began in 1999 when the CPR announced plans to discontinue rail service on the line and indicated it was considering commercial or residential development, or selling the land.

In 2000, the city of Vancouver enacted the Arbutus corridor official development plan, which designated the property for future transportation use, as well as pedestrian, cycling or recreational purposes.

That led to a battle in B.C. Supreme Court, with the CPR claiming the bylaw unfairly prevented it from developing the land the way it saw fit, without requiring the city or other interested public bodies to purchase the land. In October 2002, the B.C. Supreme Court ruled against the city.

But on Wednesday, the B.C. Court of Appeal held that the city had acted within the powers of the Vancouver Charter, and that the courts could not interfere in its actions.

A cross-appeal by CPR that the city be ordered to pay for the land also failed, as did another cross-appeal that the bylaw be set aside as ultra vires — outside the power of the law.

Ann McAfee, the city’s co-director of planning, echoed the remarks of the mayor and supported the official development plan for the corridor.

“It’s directed at the opportunity that a complete corridor offers the city,” McAfee said. “CPR isn’t the issue, it’s really the issue of an opportunity that an existing corridor offers.”

But Clark said he didn’t see how private-property owners in Vancouver could stand by the decision.

“It’s easy for people to think this has nothing to do with anybody but a large company,” he said, “but I certainly wouldn’t want to be considering investing here, owning a piece of property that the city might declare to be more important to have as a park or roadway.”

However, McAfee dismissed any suggestion that the official development plan and the Appeal Court decision would chill the property-investment climate in Vancouver.

“I think that the world has had a lot of evidence otherwise in terms of the many things that are respected around the world, the developments here,” she said.

But the ruling caused alarm at the Urban Development Institute, which represents some 400 corporations in the development industry. It called the decision “a dangerous precedent” for all B.C. private land-holders.

“The approach the bylaw takes discourages business confidence in Vancouver by grossly disrespecting the rights and interests of property owners and investors,” said UDI executive director Maureen Enser. “The real issue is treating property owners and citizens fairly, rather than stripping away their rights.”

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Arbutus corridor quick facts:

– The corridor is an 11-kilometre stretch where originally a rail line ran, from False Creek south to Marpole on the banks of the Fraser River

– The property’s value in 2000 was estimated at about $100 million

– At a city hall hearing, local resident Pamela Sauder spoke in opposition to rapid transit through Kerrisdale and her quote became a flashpoint in the debate:

“We are the people that live in your neighbourhood. We are dentists, doctors, lawyers, professionals, CEOs of companies. We are the creme de la creme in Vancouver. We live in a very expensive neighbourhood and we’re well educated and well informed. And that’s what we intend to be.”

Ran with fact box “Disputed Territory“, which has been appended to the end of the story.

© The Vancouver Sun 2004

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