This was a bombshell yesterday. More to come. No one seems to know all the scenarios that might play out (could this void the city’s land sale with Brenhill? will public hearing process need to be changed?), all of which sound serious and complicated.
Lots of interesting things in Justice McEwan’s ruling. He stayed out of whether this is a good or bad deal for the public. He wagged his finger a little bit at the petitioners, saying it’s natural and normal for a city planning department to support a development by the time it reaches a certain stage — not a sign of some kind of nefarious conspiracy. And he didn’t seem to make much of the tentative agreement between the city and Brenhill, which the resident group dug out through Freedom of Information.
His main point was that the public needed to have complete information, they needed that information to be presented in a way they could understand (bombarding them with details isn’t good enough), they needed clear information on the financials (which could mean the city will need to provide much more clarity on community-amenity contributions) and they needed to be able to discuss the two pieces of property and the land deal as a whole, not as two separate projects with no relation to each other.
My story here. The ruling itself here. I’d love to hear from IanS and any other legal experts out there on this one.
The City of Vancouver has received a serious legal rebuke from the B.C. Supreme Court, which has quashed approvals for two downtown towers where the city swapped land and approved more density to a developer in exchange for social housing.
The ruling has left the city and developer scrambling, unsure whether construction on the social-housing project – which has been going on for months – has to be halted immediately.
Justice Mark McEwan, agreeing with many of the main points presented by a group of Yaletown residents who started the lawsuit, invalidated the current development permit and rezoning bylaw. And he said the city has to hold new public hearings because staff hadn’t presented complete or understandable information to the public.
“A public hearing is not just an occasion for the public to blow off steam: it is a chance for perspectives to be heard that have not been heard as the city’s focus has narrowed during the project negotiations,” he wrote. “It cannot be conducted on the basis that the public will get just enough information to technically comply with the minimum requirements of a public hearing.”
He said members of the public need to be able to give their perspective on the whole deal. The city’s public hearings allowed people to comment only on each project, without any reference to the trade-offs between the two.
Justice McEwan also said the public needs a clear explanation of the finances.
When news of the land deal first trickled out in 2013, the city said it was swapping its $9.5-million piece of land on one side of Richards Street, the current site of Jubilee House social housing, for a $2-million piece owned by Brenhill Developments across the street.
But in the deal, Brenhill got a more expensive piece of land and more density, while the city got social housing units, and a variety of rental units at low and market rates.
Later on, at the public hearings in July, 2014, the city said Brenhill would be providing $24-million worth of social housing – a 13-storey building with 162 units to replace Jubilee House on the new site; $1-million to help with tenant relocation; and $5.6-million for the bigger piece of land.
For its second tower, Brenhill also got the right to build a much taller building than the previous zoning allowed – 36 storeys with 448 units, 110 of them guaranteed as market-rate rentals.
“It is impossible to tell whether the numbers have a real-world justification or are simply used to set up an offset that the proponents have chosen, to give the appearance of adequate consideration,” wrote Justice McEwan.
The residents who sued are jubilant about the decision, saying they think this now means the project is dead forever.
“It was a terrible deal for Vancouver,” said Kerry Corlett of the group Community Association of New Yaletown, which formed last May largely in opposition to the two projects. “It should have been put to an open bidding process and give other developers a chance. And no one should be allowed to build a 36-storey tower on the corner of Emery Barnes Park.”
The group’s lawyer, Nathalie Baker, said it’s a win for residents because it requires that “going forward the city has to be open, has to be transparent, has to be frank with citizens.”
The city is tight-lipped, issuing only a short statement saying it is reviewing the decision.
And people in the development world are agog.
“It is a significant decision. To quash a bylaw is a pretty dramatic remedy,” said Lisa Martz, a real-estate litigation lawyer.
She said this could force cities to work much harder to provide information that is transparent, but not in such overwhelming detail that the public can’t assess it.
“It would be very significant if it became the new standard in a public hearing to provide the level of detail that is provided in a court,” as the judge suggested would be useful, she said.
As well, it could require cities to figure out a different balance between providing citizens with information while protecting the privacy of businesses they’re dealing with.
29 responses so far ↓
1 Salvaich // Jan 28, 2015 at 2:02 pm
The sub-plot should read – how to turn good policy intentions into a bureaucratic mess.
Not a good political legacy.
Since Council are the “board” for the City, they will all have to wear the mantle of
allowing unelected officials to ride roughshod over citizens and developers
alike.
How about some open and transparent guidelines for how much discretion officials have before they must seek non-partisan Council direction.
-30-
2 IanS // Jan 28, 2015 at 3:06 pm
I was going to post the link to the decision, but I see you already did that Frances. I’m far from an expert, but I did read through the decision and have a few thoughts.
First off, the decision was entirely based on procedural issues. Justice McEwan was careful to limit his comments to the procedural aspects of the matter, ie. whether the City provided sufficient information, both from a qualitative and quantitative perspective, to allow the general public to assess the issue.
Justice McEwan was also careful not to specify exactly what material should be provided generally, although he was expressly critical of the figures advanced by the City (para. 116). I get the feeling that this was an important issue for him.
In the judgment, Justice McEwan expressly concluded that it was not improper that some City and staff members had decided to support the proposal before it went to public hearing (para. 119). However, it’s also pretty clear that he reached the conclusion that the City was not giving sufficient weight to the process (ie. it’s not just “an occasion for the public to blow off steam”. (para. 120)
While I agree with Lisa that this decision requires the City to be more diligent in putting forward information for such public hearings in the future, I don’t think the Court went quite so far as to say that the public should get the same level of information and disclosure as was provided to the court. She is right that the remedy given was fairly dramatic.
Finally, while he did not rule on the issue, Justice McEwan didn’t seem to have much time for the City’s argument that it was not bound by the Official Development Plan (see paras. 96 and 135).
I thought paras. 128-129 of the Reasons were well said.
I don’t know whether this decision will really change the City’s behaviour going forward, but I think it will prove to be a significant tool in the hands of residents who wish to challenge the public hearing process in the future. My prediction is that the City will appeal the decision, not necessarily because of its application to this specific bylaw, although that’s an issue of significance, but because the decision will provide such a tool for dissatisfied residents.
3 Silly Season // Jan 28, 2015 at 3:25 pm
From another news report—
‘The residents had also argued that the financial details of the swap
had not been in the city and taxpayers’ best interests. At the time, the
city’s land was valued at $15 million and Brenhill’s at $8.4 million.
Brenhill would also give the city $25 million in “community amenity
contributions.” Ultimately, the city agreed to a deal in which the $6.6
million difference in the land values and the $25 million in CACs would
be used by Brenhill to build the social housing building.
But since then the B.C. Assessment Authority has REASSESSED THE CITY’S
PROPERTY AT MORE THAN $59.5 million, a A DIFFERENCE OF MORE THAN $47 million.’
What. The. Hell. Is. Going. On. Here???? How could the city`s original land valuation be so underpriced…hmmm.
How does this deal get done it the first place???? Why???????
4 spartikus // Jan 28, 2015 at 4:28 pm
Wouldn’t the assessment skyrocket because the property was being developed?
5 Internet made me obsolete // Jan 28, 2015 at 6:15 pm
Yes, rezoning creates value out of thin air. That’s why it’s so eagerly sought and, if the price is right, granted.
6 Silly Season // Jan 28, 2015 at 10:59 pm
Why wouldn’t that be taken into consideration when the deal is first done, tehn? Shouldn’t the City be anticipating that and asking for more, if re-zoning drives the price of the property up that much?
7 gasp // Jan 29, 2015 at 1:17 am
In the past 10 days the City of Vancouver has lost two cases in BC Supreme Court. That must be some kind of record! I don’t recall any previous City Council decisions and actions being so roundly criticized by the courts.
First the City lost their case against CPR regarding their attempt to stop CP Rail from putting trains on the Arbutus Corridor, and now the City lost this case about the “fairness” of their public hearing process. In both cases the City seems to have misinterpreted the scope of its powers and how those powers should be properly exercised.
This latest ruling belies Councillor Reimer’s contention that she is acting “quasi judicially” when she assesses a rezoning application in a public hearing by comparing it to the “policy statement” their Council previously passed! City Council now wants “policy statements” for various parts of the City they want to rezone so they won’t have to consider other issues raised by the public during the public hearing process. Their use of “policy statements” is explicitly to truncate the public hearing process: But, as Justice McEwan stated (para. 120) “The desire of those who have brought the project along to get past the approval stage cannot be allowed to truncate the process.”
The City’s response to both these rulings has been merely to express disappointment at the court’s ruling. No other comments have come from the Mayor or other Vision councillors, even though the ruling clearly states the City’s policies/practices for the public hearing were not procedurally fair. (You’d think with 30+ people in their “communications department” they’d be able to say something that indicates they at least understand, if not accept, the judges’ criticisms of their process.)
Various matters raised in this latest decision (such as lack of disclosure of all pertinent facts, and lack of consideration of issues raised by the public) have also been present in numerous other public hearings conducted by City Council over the past 10 years. In my view (after watching numerous public hearings for rezoning applications), this type of attitude about turning the public hearing process into a show or “sham” started during the Sullivan regime, but has become even more pronounced, restrictive in scope and condescending towards the public’s input during the Robertson regime. The findings made by the judge regarding the City’s interpretations of the legal requirements for its processes could probably apply to many of the public hearings conducted over the past 5 – 10 years.
Mayor Robertson promised transparency when he was first elected; now his Council’s and the City’s actions have been found by the court to be “opaque” and to lack transparency. I wonder how he’s going to spin his way out of that finding of fact!
8 spartikus // Jan 29, 2015 at 8:16 am
Probably. I get a $26m difference when you include CACs, which is still substantial. The value of the COV’s part of the swap eventually turned out to be valued 56% of what Brenhill was eventually valued at.
Is it supposed to be precisely even? If not, what’s the zone of comfort? The markets (and thus B.C. Assessment) might value social housing lower than luxury condos, but what is the intangible value to society? Does that come into play?
9 Kirk // Jan 29, 2015 at 10:12 am
Anyone know how much these lawsuits are costing us? And, is anyone taking responsibility for them? I’m not asking for heads to roll, but at the very least, someone should not get a bonus this year.
10 IanS // Jan 29, 2015 at 10:48 am
I wouldn’t want to be too critical on this issue, as the creation of work for legal counsel in Vancouver is one of the few upsides of the Vision regime, in my opinion.
Having said that, I think the CPR injunction application was likely a very expensive proposition. (http://www.courts.gov.bc.ca/jdb-txt/SC/15/00/2015BCSC0076.htm) From the reasons, it looks like the City had four counsel from Farris Vaughn, including two very senior counsel, in court for five days. That was an expensive exercise.
11 spartikus // Jan 29, 2015 at 11:30 am
Isn’t the question in such things: Was it money well-spent (or that had to be spent)?
There is legal ambiguity. You test it in court and gain some clarity. Lawyers get paid.
12 IanS // Jan 29, 2015 at 11:43 am
“Isn’t the question in such things: Was it money well-spent (or that had to be spent)?”
Not sure if it’s “the” question, but it’s certainly a question.
“There is legal ambiguity. You test it in court and gain some clarity.”
IMO, the CPR injunction application was more politically motivated than legally motivated, but…
“Lawyers get paid.”
… it’s all good. 🙂
13 peakie // Jan 29, 2015 at 12:28 pm
In starting to read the McEwan decision courts.gov.bc.ca/jdb-txt/SC/15/01/2015BCSC0117.htm of 19,000 words, I was struck in the beginning by postcards being mailed four days before hearings.
Haven’t they noticed that “regular” mail is slower downtown because all the sorting is now done at the North Airport facility. I would say 10 days for city mail these days.
My grammar checker said it was a complex document requiring a minimum of Grade 12. And too many very long sentences.
And now to see why Abbotsford and Saanich show up in odd words list.
14 Kirk // Jan 29, 2015 at 2:41 pm
Yeah, I don’t mind having to go to court from time to time. Pushing the envelope once in awhile is okay with me. I just hope it doesn’t become a pattern.
It’d be pretty bad if a company CEO kept dragging his company into litigation (and LOSING!). I’d rather the City’s in-house legal counsel give its stamp of approval beforehand instead of having to go to court after the fact (and LOSING!). Or, maybe they should fire their lawyers(!).
Anyway, a couple of losses in the court aren’t worrying me yet.
I hope the Yaletown suit results in better transparency in the future.
15 IanS // Jan 29, 2015 at 3:19 pm
In fairness, most of these proceedings involve the City as a defendant or respondent. With the exception of the CPR injunction action, the City didn’t instigate the proceedings and had no choice but to respond.
“Or, maybe they should fire their lawyers(!).”
Oh, I don’t know about that. I don’t think there are any lawyers alive who could have won the CPR issue.
16 spartikus // Jan 29, 2015 at 3:34 pm
CPR has also paid some lawyers in losing cases.
17 IanS // Jan 29, 2015 at 3:52 pm
“CPR has also paid some lawyers in losing cases.”
Precisely. So, it’s all good.
18 Kirk // Jan 29, 2015 at 4:07 pm
That’s kind of my point. If the CP case was unwinnable, what kind of counsel would have said, “We don’t have a chance in hell, but, hey, it’s not our money. Let’s go to court!” Hence, my half-joke of firing their lawyers.
Regarding Yaletown, did in-house legal staff say, “Well, this violates City bylaws, but, yeah, let’s go for it and hope nobody notices.”? Sounds like the answer is no because the ruling was more about clarifying things, as alluded to by spartikus. So, this one doesn’t bother me.
But, like I said, if it becomes a pattern….
19 IanS // Jan 29, 2015 at 4:35 pm
Kirk, as to the former, it’s not all that unusual for lawyers to advise clients that a particular course of action or application is likely fruitless and be instructed to take the step anyway. In the case of the CPR application, my guess is that your quoted statement was uttered by the people instructing legal counsel, not by legal counsel. IMO, the decision to proceed was motivated by political concerns.
Given the quality of counsel representing the City on that matter, I have no doubt that the City received good advice as to the almost inevitable outcome of the application.
As to the latter, I suspect the result was a lot more difficult to predict.
20 Kirk // Jan 29, 2015 at 4:47 pm
So, what you saying is that the lawyers are obviously not stupid, the mayor is.
Ha! That’s unfair for me to put you in that corner, so I’ll say it. The mayor is stupid. But, it wouldn’t surprise me if developers pressed him to try and grab that land from CP. I think it’s about more than just some turnips and rhubarb.
21 IanS // Jan 29, 2015 at 4:53 pm
I don’t think the Mayor is stupid.
However, I do think that the person who made the decision to proceed with the injunction application was motivated by political concerns, not legal ones.
22 Internet made me obsolete // Jan 29, 2015 at 5:14 pm
They take 85% of the land lift, so their interests are served even better by a re-zoning than the developer, though the developer sees his property value rise by 15% by a stroke of the pen, which is not bad.
23 Brilliant // Jan 31, 2015 at 8:31 am
Really, you don’t think he just a it dim? He’s really only there as a photogenic front man for other interests.
24 Norman12 // Jan 31, 2015 at 10:33 am
Finally someone has called the city on their so-called consultation process. What a shame we can’t get democracy and fairness from our city council without going to court.
25 jenables // Jan 31, 2015 at 4:55 pm
Does anyone else get the feeling that the replacement social housing would have been about half the size it originally was? Is there any way to find out?
26 Silly Season // Feb 1, 2015 at 3:17 pm
If part of the value is related to social housing, seems to me at that differential there’s an opportunity to build another building…that’s a big giveaway.
27 Silly Season // Feb 1, 2015 at 3:20 pm
Wasn’t it Shakespeare who said: ‘First, we pay all the lawyers.’ 🙂
28 Internet made me obsolete // Feb 3, 2015 at 10:21 am
Just read an interesting study of the climate-change debate in Nature (http://www.nature.com/nclimate/journal/vaop/ncurrent/pdf/nclimate2507.pdf), but it applies to almost any disagreement:
“…contrasting opinions of believers and sceptics about the
causes of climate change provided the basis of social identities that define
who they are, what they stand for, and who they stand with (and against)”.
“And once one’s identity is defined in part by taking sides
in a debate, both sceptics and believers become so emotionally invested in
their cause, and so determined to override their opponents arguments, that
debate descends into an increasingly noisy and acrimonious cycle.”
Turns out people are mostly motivated by anger at those holding opposing views. Grrrr.
29 IanS // Feb 20, 2015 at 7:37 am
As predicted, the City has apparently filed a Notice of Appeal in this matter.