Court rules Vancouver residents can’t appeal decisions of the city’s planning department
Frances Bula
Sun
Vancouver residents have lost a long-held weapon in their fights with city hall.
A surprising B.C. Supreme Court decision, which will have a dramatic effect on city procedures, has ruled that residents do not have the right to appeal to the board of variance if they object to city planning decisions about neighbouring properties.
In a judgment released late Thursday, Judge Richard Goepel wrote that only a property owner who has been denied something by the planning department can appeal.
For several decades the city’s board of variance has heard appeals from neighbouring residents of a property who feel that the planning director’s decision to allow something — a higher or bigger building; a demolition; an addition — will have an adverse impact on their property.
The appeals have been increasing in recent years, as residents look more aggressively for avenues to block unwelcome development.
As a result of the ruling, based on Goepel’s interpretation of the Vancouver Charter, the city’s board of variance staff has been instructed to refuse all third-party appeals as of Friday.
Two scheduled appeals, both by west side residents objecting to aspects of development on a neighbouring property, will no longer proceed, said board of variance clerk Louis Ng.
The ruling has shocked some and amazed even the lawyer whose case provoked it.
“I think this is the most dramatic municipal-law decision in years,” said lawyer Jonathan Baker.
Baker had been fighting a much narrower issue, a board of variance decision last year that said the owner of a lot near Commercial Drive could not tear down the 1907 houses on the property to build a new duplex. That decision came about after local residents appealed the planning department’s permission to the owner to demolish and rebuild, over their objections that the existing houses were heritage structures and that the lot should be turned into a park.
But rather than addressing Baker’s point, that the board had exceeded its jurisdiction, Goepel looked at the Vancouver Charter legislation and decided that it has been wrongly interpreted for decades.
“The legislation does not … create a general right of appeal for third parties to challenge the decision of the director of planning,” he wrote. “It contains no provision to regulate such appeals. The legislature did not give the board, a lay panel with no professional training, the power to veto developments approved by the director of planning.”
The only people who can appeal to the board are the property owners who applied for exemptions or discretionary permission from the planning department and have been turned down, he ruled.
Both Baker and the lawyer who acted for the former board of variance that made the decision — a five-member board that Vancouver council fired during the summer on the grounds that it was racking up unacceptable legal bills because of its controversial decisions allowing third-party appeals — say Goepel’s ruling is going to have a dramatic impact on city processes.
The current board chair, former councillor Marguerite Ford, agrees.
“I think there will be some repercussions,” said Ford.
“For 40 years, we’ve trained the public that they’re entitled to be heard. The city will have to develop some alternative mechanism.”
She thinks the planning department might have to develop a new process in order to give local residents a say in the case of developments that are controversial but don’t legally require a public hearing. Currently, they get a letter from the planning department about a proposed development and are invited to respond, but there is no public gathering or public process.
“Now the public will be hounding the planners directly instead of going to the board,” said Baker, who blamed the fired board for that outcome. He said that if that board hadn’t pushed the envelope so far on its decisions, the issue would never have been forced at the Supreme Court.
“This would never have happened if the previous board had shown any judgment at all,” he said.
Derek Creighton, a former city of Vancouver lawyer who is now in private practice and acting for the fired board, agreed that the planning department is going to have to create some kind of mechanism to give the public a voice.
He said he is recommending that his clients appeal to the Court of Appeal.
In the meantime, he said, the ruling is going to create a difficult situation in Vancouver because of the unique nature of its zoning practices.
In all other municipalities, the planning department can allow a certain number of limited relaxations from very fixed zoning guidelines.
But Vancouver has all kinds of discretionary zoning categories, in which the planning department essentially has the right to negotiate broadly with a property owner or developer over giving extra height or density in exchange for a certain kind of design, retention of a heritage building,or something else a planner thinks will benefit the city.
“But that results in unelected individuals making up zoning as they go along, without a public hearing. The flaw in all of this is that all zoning that impacts people’s interests needs a hearing.””
As it stands now, said Creighton, only very wealthy people who choose to go to court will have an outlet for objecting to planning department decisions on smaller projects that aren’t subject to the requirements for a public hearing.
Ford said council could ask the provincial government to amend its charter to clarify that it does allow third-party appeals, but she is not sure council is interested in doing that because of the small number of cases involved.
For Kitsilano resident Don Pickering, who was set to have his appeal heard in October, the ruling is frustrating.
He said he didn’t want to appeal to the board, but the letter he got from the planning department essentially told him that if he didn’t like what his neighbour was going to build, that’s what he should do.
Pickering is trying to persuade his neighbour and the planning department that the neighbour’s proposed new house, a three-storey residence in the 3400 block of West Second Avenue that will replace a smaller structure, should be moved forward on the lot two metres so it doesn’t throw so much shadow onto his smaller house and back yard.
“The whole process shocked me because nobody seemed to care that we were going to be affected,” said Pickering, for whom the whole process, which he says has included the developer phoning him up and yelling at him, has been stressful.
“The city is going to have to let people like me have a say.”
BOARD OF VARIANCE
Year 2001 2002 2003 2004 2005
Total appeals heard 299 334 348 346 342
Third-party appeals 24 35 57 28 31
% of appeals allowed 39 49 46 51 66
© The Vancouver Sun 2006