Blog
Our blog is for information purposes only and not intended to be legal advice. If you have questions on your specific situation, please consult one of our lawyers for advice.
Disclose This! Public Disclosure Requirements for Rezoning

Planning is complicated. Based on a recent BC Court of Appeal ruling, Chief Justice Bauman would tend to agree. In Community Association of New Yaletown v. Vancouver (City), 2015 BCCA 227, a unanimous Court of Appeal overturned an earlier decision by the BC Supreme Court which would have created onerous new public disclosure requirements for rezoning applications. Thankfully, in addition to setting the law on public disclosure straight by removing the additional requirements created by the Supreme Court ruling, Chief Justice Bauman’s decision provides some helpful pointers for planners and staff tasked with compiling reports to Council ahead of a public hearing on a zoning matter.

FACTS

In 2013, the City negotiated a creative land deal with Brenhill Developments. Brenhill agreed to build a social housing complex on its property located at 1099 Richards Street and then transfer the property to the City via a land exchange agreement. In return, the City agreed to transfer to Brenhill a City-owned parcel located at 508 Helmcken Street for Brenhill’s proposed mixed-use 448-unit project.

To effect the plan, the City’s business unit negotiated a land exchange with Brenhill. The Development Permit Board issued a DP for the new social housing complex at 1099 Richards Street. Staff approved a lane closure. A rezoning application for Brenhill’s Helmcken Street project was approved by Council in March of 2014.

The Community Association of New Yaletown (“CANY”) opposed the development. CANY launched a successful action in the Supreme Court attacking the validity of the City’s public disclosure. The Supreme Court ruled that the public disclosure on the rezoning application was inadequate as it failed to address the public in “simple, direct terms”. The Court took issue with the fact that the information made available to the public was “highly technical” and interlaced with “peripheral information” (including details on density, impacts on neighbouring views, sun shadow diagrams, and urban design analyses …). The Court held that the information did not properly address the impact the rezoning would have on the neighbourhood. The Supreme Court also found that staff’s report to Council on the rezoning should have disclosed details of the confidential land exchange agreements between the City’s business unit and the developer along with economic justifications for the project. Unsurprisingly, both the City and developer appealed the ruling.

CHIEF JUSTICE BAUMAN TO THE RESCUE

The B.C. Court of Appeal agreed with the City and developer, finding, amongst other things that:

• the scope of disclosure required by the Supreme Court was over-broad and would not be supported by the statutory requirements contained in the Vancouver Charter (there is a similar applicability to the Community Charter);

• the City had no obligation to disclose the confidential details of the land exchange in its report on the rezoning; and

• there was no obligation to create a user-friendly report for the public.

In addressing the details contained in the planners’ report, the Court found that:

[113]   Various appendices contained the proposed by-law, the draft conditions of approval (covering some 13 pages) and detailed urban design analysis. This latter document runs 24 pages and … covers all of the specific aspects of land use, density, impacts on neighbouring views and privacy, light and shadowing and form of development for the [Brenhill] project. These are technical sections, to be sure, but the design of a 36-story tower and its impact on its neighbours is a matter of some technicality. These details are not “at best, peripheral” … they are centrally relevant to the rezoning and [its] impact on the neighbourhood.

It should be noted that Chief Justice Bauman was a municipal lawyer before he became a Judge.

GETTING IT RIGHT

So what should staff include in their information packages before a public hearing? The law is clear that on a rezoning, impacted residents have the right to sufficient information to help them come to an “informed, thoughtful, and rational opinion about the merits of the rezoning” and how it will impact their neighbourhood. The contents of the report can be limited to the materials that Council will consider when deciding whether to approve the rezoning including:

• description of the proposed land use;

• impact on housing or density (if applicable);

• form of development; and

• parking, traffic, and environmental impacts.

Properly executed, a public disclosure package will provide citizens with enough information to help them understand a project without creating a strain on a local government’s staff and financial resources. Managing these resources is not always easy, but GovLaw can provide you with tips and tools to help pull together a clear, concise and effective disclosure package.

GovLaw thanks Madelaine Campbell for her significant contribution to this article.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.