It's time for a revised Board of Variance By-Law but only if this is done at the same time as the Vancouver Charter is amended to restore citizens' right to third-party appeals...

On July 9, 2009, the City's Legal and Planning Departments attempted to get major revision of the City's Board of Variance By-Law through Council, suggesting to Councillors that the changes they wanted to make were merely “housekeeping.” On that day a number of delegations presented to Council, saying that the changes were sweeping and needed to be reviewed by lawyers and that revisions to the By-Law should only occur if, at the same time, amendments were made to the Vancouver Charter to expressly make third-party appeals legal.

Until a 2006 BC Supreme Court ruling — and for over forty years up to then — the citizens of Vancouver had been lawfully making third-party appeals of decisions of the Planning Department to the Board of Variance. (Third-party appeals would be those brought by anyone other than the City, the first party, or the owner of the property, the second party.)

Most citizens have only a vague sense of this democratic right or, for that matter, of the role of the Board of Variance itself. Indeed, until you need to challenge a decision of the Director of Planning, you may not think that third-party appeals to the Board of Variance are particularly important … but, once you find yourself in the position of needing to bring an appeal because the Director of Planning is prepared to allow a development (not “outright,” but allowing relaxations of code or the zoning requirements) in your neighbourhood that you consider inappropriate — say a relaxation of the allowable height of a building proposed to be built nextdoor to you, which will mean your garden will be in shadow most of the day — you will quickly learn to appreciate the right you have lost! It used to be that neighbours or other affected people could bring such an appeal (affordable and with a clear process to a layperson) to the Board of Variance; now, the only appeals allowed are those brought by the owners of the property in question — generally the developers — and then only because they don't feel the Planning Department has provided them enough in the way of relaxations.

At the July 9th meeting, Council voted to implement a comprehensive community consultative process with two goals: making recommendations for revisions to the Board of Variance By-Law and for amendments to the Vancouver Charter (which would need to be approved by the Province of BC) to restore third-party appeals. The process was to be completed by and reported back to Council by October 2009. This was an excellent idea — to bring together the legal experts and the people who care about this issue — to hash out a good and workable solution ... But, nothing has happened yet.

Citizens were to contact Louis Ng, the Secretary to the Board of Variance, to let him know they wanted to be part of the consultative process. Numbers of people have contacted him, and nothing has happened.

It would be nice to have the details spelled out for people who have expressed or might still express an interest. I would suggest that, if you are interested in participating, it's still not too late to be included!

To have your name included in the list of people wishing to take part in the Public Consultation regarding the Board of Variance By-Law and the Reinstating of Third-Party Appeals, please contact Louis Ng directly (in writing, for his record). You will be able to speak and/or make a presentation.

Louis Ng
Secretary of the Board of Variance & Freedom of Information Officer
City of Vancouver
Tel: (604) 873-7723 / Fax: (604) 873-7475
E-mail: louis.ng@vancouver.ca

Here is the July 9, 2009, motion from City Council. Part A was unanimous. (Note that everyone voted in favour of Part B except Councillor Anton.)

MOVED by Councillor Louie
THAT the Committee recommend to Council
A. THAT consideration of the proposed new Board of Variance By-law be referred to a meeting in October, 2009, in order for staff to meet with interested parties and to refine the provisions of the By-law.
B. THAT staff undertake public consultation on the issue of adding third party appeals to the jurisdiction of the Board of Variance and to report back to Council on the findings of such a consultation and the mechanism for extending the jurisdiction of the Board.
CARRIED
(Unanimous for A and only Councillor Anton opposed to B)

I would suggest that, if you are interested in participating, it's still not too late to be included!

 

Please call Louis Ng's office if you have any questions.

 

This important issue has city-wide implications.
In 2005 a group of neighbours, in an attempt to save Grandview-Woodland's Salsbury Garden, brought an appeal to the City's Board of Variance. The Board's ruling quashed the developer's permits to tear down two 1907 BC Mills heritage houses and cut down a small forest of hundred-year-old trees and build two duplexes. The developer, Richard Niebuhr, appealed his loss to the Supreme Court of BC, and on 21 September 2006, Mr. Justice Goepel of the Supreme Court upheld his appeal, reversing the Board's decision to deny the development permit and sealing the fate of the garden and houses, which have since been replaced by the two duplexes.

Mr. Justice Goepel determined that Section 573 of the Vancouver Charter, which describes the powers of the Board of Variance, does not allow for third-party appeals.

The Supreme Court ruling denied Vancouver citizens the right to be heard as third-party appellants at the Board of Variance where, for over 40 years, they could question — and even on occasion overturn — development decisions between Department of Planning staff and developers that involved relaxations of zoning regulations.

An appeal of Justice Goepel's ruling was filed at the BC Court of Appeals but was dismissed on 31 October 2007.

Restoring third-party appeals likely requires an amendment to Section 573 of the Vancouver Charter to make clear that Vancouver citizens have the right to third-party appeals. The Vancouver Charter is the domain of the BC Legislature rather than Vancouver City Council, but Council would need to encourage the amendment by passing a motion in support of a specific change.

Here's an article, published July 17th, soon after the Council motion in the Vancouver Courier — "City Hall Renews Hope for Third-Party Appeal Advocates".

Background

In the the spring of 2008, our appeal to the Supreme Court of Canada was dismissed and we felt we'd gone about as far as we could go...

For over forty years Vancouver citizens had been lawfully making appeals of decisions of the Planning Department to the Board of Variance. This democratic right was wiped out in a 2006 BC Supreme Court ruling.

We had sought leave to appeal this ruling to the Supreme Court of Canada.

Unfortunately, our application to have our appeal considered by the Supreme Court of Canada was denied (in March 2008). Seeking leave to appeal to the Supreme Court of Canada was our last legal resort. (Here is the case summary.)

As a part of the decision, we were required to pay the court costs of the developer. Many generous Vancouver citizens contributed to our case, and we thank them.

Cartoon of a giant Supreme Court judge and a tiny appellant

What our dismissal at the Supreme Court of Canada meant was that the decision against us at the BC Supreme Court in 2006 would stand, with a result that citizens of Vancouver had lost their right to bring third-party appeals. Most citizens have only a vague sense of the role of the Board of Variance. Indeed, until you need to challenge a decision of the Director of Planning, you may not think third-party appeals are particularly important … but, if you find yourself in the position of needing to bring an appeal (because, for example, the Director of Planning is prepared to allow a development (allowing relaxations of the zoning requirements) in your neighbourhood that you feel is totally inappropriate), you will quickly learn to appreciate the right you have lost!

Dunbar Residents' Association wrote a letter to Mayor and Council and the Director of Planning requesting that City Council take steps to change the Vancouver Charter to formally reinstate third-party appeals. I haven't heard yet if their letter has had a response, but this seems to me to be a positive step.


A Chronology

Citizens of Vancouver have lost one of their important democratic means of challenging decisions of the city's Planning Department. I'm part of a community-based group that has been struggling for over two years for the rights of ordinary citizens — aggrieved neighbours and concerned citizens, known legally as "third parties" — to have meaningful say in the City's planning decisions.

  • In August of 2005 we took an appeal to the City's Board of Variance (BOV) to save a small informal neighbourhood park, Salsbury Garden, which included two small heritage houses in East Vancouver. The BOV ruled in our favour, and the proposed development permits (for two oversized duplexes) were quashed. Our group celebrated.

  • The developer appealed, and in September of 2006, after a three-day hearing at the Supreme Court, we lost, and the developer got his permits. The issue of whether or not citizens had a right to third-party appeals wasn't raised by any of the lawyers at the hearing until the presiding judge, Justice Goepel, requested that they do so. J. Goepel's sweeping decision changed decades of practice in Vancouver, where neighbours and concerned citizens could bring appeals and address their concerns about decisions of the City Planning Department. In effect, he ruled that we should never have been allowed to make our appeal to the Board of Variance in the first place. Now, only property owners (that is, developers) who apply for a development permit have the right to appeal decisions by the Planning Department.

  • Massive projects (such as the Concord Pacific Marina project or the new Whitecaps Stadium proposal) are subject to this change as well as smaller neighbourhood ones (such as your neighbour gets approval to build a larger-than-usual garage that will prevent the sun from getting to your vegetable garden). The Planning Department may notify you of developments that will affect you, but there's now nothing you can do about them.

  • For example, on November 9, 2007, a letter was sent by the Planning Department to residents near Hastings Park (see page 1 & page 2) to say it had approved a proposal to expand Hastings Park Raceway to include a massive new gambling establishment with 600 new slot machines. The letter, from Doug Robinson, Project Facilitator, actually stated "As a result of a recent B.C. Supreme Court decision, the Board of Variance does not have jurisdiction to hear third party appeals of decisions made by the Director of Planning." [emphasis HIS]

  • Meanwhile, in June 2006, Mayor Sam Sullivan and Vancouver City Council fired the very Board of Variance that ruled in our favour … and appointed a new pro-developers Board. The old BOV is currently before the courts asking to set aside Council's dismissal.

  • The developer sold the Salsbury Garden property to another developer, the 100-year-old trees and houses were demolished, and the two duplexes were built and sold.

  • The community lost its beloved Salsbury Garden, some hundred-year-old trees, and a couple of little 1907 heritage houses. But all citizens of Vancouver lost the right, held in practice for over forty years, to appeal as third parties (aggrieved neighbours) the decisions made by the City's Planning Department.

  • We were the only people in the City who could appeal the Supreme Court decision to the BC Court of Appeal, so we worked with a lawyer and prepared our appeal.

  • On October 31, 2007, our "reinstate third-party appeals" case was dismissed by the BC Court of Appeals. The "reasons for judgment" in the ruling stated that we do not have standing to make the substantive arguments in our appeal. As well, we have been ordered to pay the court costs of the developer who was the defendant in the case.

  • In the spring of 2008 the Supreme Court of Canada dismissed our appeal. Again, the reason for the decision was of standing and didn't give our counsel an opportunity to argue the merits of the case; also, we were again ordered to pay the developer's costs.

    • Cartoon: Dick Allen