Dear Ms Prosken:

I'm writing on behalf of our group to seek guidance and clarification on the public consultation process for reinstating third-party appeals and for making revisions to the Board of Variance By-Law. We wrote to you June 25th and haven't yet had a reply.

Please write back to us and let us know if it will be possible for the public consultation about third-party appeals to occur prior to the October meeting you are planning about the By-Law.

Thank you.

Sincerely,

Penny Street, Charles Reynolds, Sandy Berman, Terry Martin, Stephen L. Holmes, Patricia Davitt, Ian Marcuse, Bruce Macdonald, Gayla Chernovsky for the group Reinstate Third-Party Appeals

Dear Ms Prosken:

We are grateful that you have postponed the meeting about the Board of Variance By-Law to October. Thank you. The date of the meeting, however, was only one part of what we were requesting.

The principal request we were making was that the public consultation about reinstating third-party appeals should occur BEFORE the meeting about the By-Law. Happily, by moving the By-Law meeting to October, we now have plenty of time to have the public consultation on third-party appeals later on this summer and well before the By-Law discussion.

This would mean that when (hopefully) it is determined that the By-Law will contain well-defined provisions for third-party appeals, the subsequent By-Law discussion could then include the topic of reinstating third-party appeals to the Board of Variance and cover the particulars about how they will work.

I can well understand that developers don't want frivolous third-party appeals gumming up the works, but there needs to be room in the bureaucratic machine for the community or individual citizens to make their views heard and to be able to influence development decisions in their neighbourhoods. For over 40 years the third-party appeal was one (affordable) way to honour that need. (Heaven knows that third-party appeals have not significantly altered the course of development in the City during the past 40 years!)

Thank you.

Sincerely, Penny Street, Charles Reynolds, Sandy Berman, Terry Martin, Stephen L. Holmes, Patricia Davitt, Ian Marcuse, Bruce Macdonald, Gayla Chernovsky for the group Reinstate Third-Party Appeals 

Dear Mr. Jones [Joe Jones, who had also written to her] and Ms. Street,

Thank you very much for advising us of your concerns today.

In reference to the short notice for the June 29th Proposed Amendments to the Board of Variance By-laws meeting, our intent was to get this discussion underway as soon as possible. We are behind schedule on some of our work due to primarily to our involvement in the 2010 Olympics.  I appreciate your difficulty with our short notice and out of respect for people taking summer vacations, I am confirming postponement of the June 29th, 2010 meeting and am rescheduling this meeting to October 5th, 2010. A reminder of the meeting will be sent to you again in September.

The Proposed Amendments to the Board of Variance By-laws meeting will not include a discussion on third party appeals because we have not yet adequately prepared to undertake that broader consultation. When we are ready, we will provide you with a month’s notice of that public meeting.

Thank you once again for taking time to let us know your concerns. I look forward to seeing all of you in the fall. In the meantime, have a wonderful summer.

Sincerely, Brenda

Dear Ms Prosken:

As citizens with an interest in the operation of the Board of Variance and the restoration of Third-Party Appeals, we were interested to receive your letter dated today, June 17, 2010, “Re: Proposed Amendments to Board of Variance By-law (By-law No. 3844)” inviting us to a meeting to be held on Tuesday, June 29. The letter follows up on one-half of a July 9, 2009 motion passed at the Standing Committee of Council on City Services and Budgets. Councillor Louie’s motion was as follows:

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.

Today's letter calls on people interested in the operation of the Board of Variance to attend a 90-minute meeting “to discuss the Draft amendments to the Board of Variance By-law No. 3844” and a note is added “THIS MEETING WILL NOT INCLUDE A DISCUSSION ON THIRD PARTY APPEALS” (capitals and underlining in original). This invitation is a response to only half of Council’s motion.

With respect to the meeting referred to in part A and the public consultation referred to in part B, we suggest that it would be more logical to have the public consultation first, and that the meeting concerning refining of the By-Law take place later, after the results of the public consultation on third-party appeals have been determined. If the public consultation process determines that the provision for third-party appeals should be added to the jurisdiction of the Board of Variance, then that jurisdiction will presumably need to be written into the proposed new Board of Variance By-law.

We therefore respectfully submit that the public consultation process on third-party appeals should happen before the meeting on the By-Law. Also, ample notice should be given beforehand. In light of this, we request that the June 29 meeting be cancelled for now and that interested parties be invited to a public consultation on third-party appeals with at least two weeks’ notice and that the consultation be held at a time when more interested/affected citizens would be able to attend (an evening or weekend rather than mid-afternoon on a work day). Once the status of third-party appeals is determined, it would be appropriate for the process of amending the Board of Variance By-Law to go ahead.

Thank you.

Sincerely,

Penny Street, Ian Marcuse, Stephen Holmes, and Bruce Macdonald for the group Reinstate Third-Party Appeals (a much larger group, but we felt there was urgency in getting the letter out today, so didn't manage to contact everyone to sign)

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".

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...

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.

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.