Development plans, zoning, and public hearings in Vancouver

⊕I updated this article in October 2023, to reflect the Municipal Affairs Statutes Amendment Act (No. 2), SBC 2021, c 30., which made the public hearing requirement even less onerous for municipalities other than Vancouver. Prior to this amendment, municipalities other than Vancouver could waive public hearings for propozed rezoning bylaws where the rezoning was consistent with an existing official community plan. Now, municipalities other than Vancouver simply are not re­quired to hold such a hearing; there is no need for council to expressly waive the requirement.

Vancouver has sev­er­al official de­vel­op­ment plans (ODPs). These plans lim­it the uses that are al­lowed in cer­tain ar­eas. For ex­am­ple, the Arbutus Corridor ODP des­ig­nates the cor­ri­dor for use only as a pub­lic thor­ough­fair. The Southeast Granville Slopes ODP sets a max­i­mum height for build­ings and lists the uses that are al­lowed in the area (“a mix­ture of res­i­den­tial uses, restau­rant and en­ter­tain­ment ac­tiv­i­ties, oth­er com­mer­cial ac­tiv­i­ties, and in­tense pub­lic ac­tiv­i­ties”).

If this were any oth­er mu­nic­i­pal­i­ty in British Columbia, these plans would stream­line re­zon­ing: they would re­move the re­quire­ment for a pub­lic hear­ing when the re­zon­ing is con­sis­tent with an ODP for the area. But Vancouver does not get this benefit from its ODPs. In this blog post, I present how this difference came to be and ar­gue that the province should con­sid­er bring­ing the Vancouver Charter in line with the Local Government Act on this point.

Zoning and public hearings

Municipalities use zon­ing by­laws to con­trol land use.See gen­er­al­ly Daniel Aaron Silver & Terry Nichols Clark, Scenescapes: How Qualities of Place Shape Social Life (Chicago: University of Chicago Press, 2016), Ch 7. The province has giv­en mu­nic­i­pal­i­ties the pow­er to di­vide the land with­in their bound­aries into zones of any num­ber, shape, or size and with­in each, to reg­u­late the use of the land.See Local Government Act, RSBC 2015, c 1, s 749 [LGA]; Vancouver Charter, SBC 1953, c 55, s 565. The Local Government Act applies to municipalities other than Vancouver. The Vancouver Charter applies only to Vancouver. Common re­stric­tions are the heights of build­ings, max­i­mum floor-space ra­tio, and the kinds of uses that are al­lowed with­in a zone.See e.g. City of Vancouver, Consolidated Zoning and Development By-Law, RS-1 District Schedule, on­line: <by­laws.van­cou­ver.ca/zon­ing/zon­ing-by-law-dis­trict-sched­ule-rs-1.pdf>.

Zoning significantly affects the kind of com­mu­ni­ty that we cre­ate.See gen­er­al­ly Silver & Clark, supra note 1, Ch 7. So when a mu­nic­i­pal coun­cil makes, amends, or re­peals a zon­ing by­law, it must first hold a pub­lic hear­ing (with one im­por­tant ex­cep­tion, pre­sent­ed lat­er).See LGA, supra note 2, s 566; Vancouver Charter, supra note 2, s 464. These pub­lic hear­ings are not as sim­ple as coun­cil just lis­ten­ing to speak­ers at a reg­u­lar meet­ing. These pub­lic hear­ings have strict no­tice re­quire­ments, peo­ple who would be affected by the by­law have pro­ce­dur­al fair­ness guar­an­tees and a right to be heard, and coun­cil has dis­clo­sure oblig­a­tions. The Court of Appeal for British Columbia has said:

[44] … There is an abun­dance of ju­rispru­dence on the fun­da­men­tal im­por­tance of no­tice to the le­git­i­ma­cy of the de­ci­sion-mak­ing process in land use and zon­ing cas­es. Simply put, fail­ure to com­ply with the no­tice re­quire­ments in re­la­tion to a pub­lic hear­ing un­der­mines the op­por­tu­ni­ty afforded the pub­lic to par­tic­i­pate in the de­ci­sion-mak­ing process. Failure to com­ply with the no­tice re­quire­ment for a pub­lic hear­ing on pro­posed land use or zon­ing by­laws gen­er­al­ly re­sults in the by­law be­ing quashed.

[45] A pub­lic hear­ing on land use and zon­ing by­laws serves at least two im­por­tant func­tions: it pro­vides an op­por­tu­ni­ty for those whose in­ter­ests might be affected by such a de­ci­sion to make their views known to the de­ci­sion-mak­er and it gives the de­ci­sion-mak­er the benefit of pub­lic ex­am­i­na­tion and dis­cus­sion of the is­sues sur­round­ing the adop­tion or re­jec­tion of the pro­posed by­law.

[46] Procedures aimed at en­sur­ing a min­i­mum stan­dard of ra­tio­nal­i­ty in the de­ci­sion-mak­ing process are more like­ly to en­hance the qual­i­ty of the de­ci­sion and the pub­lic’s ac­cep­tance of it than de­ci­sions based on undis­closed in­for­ma­tion, or on in­com­plete or ill-con­sid­ered facts.

[47] As well, par­tic­i­pa­to­ry pro­ce­dures such as pub­lic hear­ings on land use or zon­ing by­laws tend to dis­pel per­cep­tions of ar­bi­trari­ness, bias or oth­er im­pro­pri­ety on the part of lo­cal gov­ern­ment in the de­ci­sion-mak­ing process and tend to en­hance pub­lic ac­cep­tance of such de­ci­sions. Put an­oth­er way, the per­cep­tion, if not the fact, of ar­bi­trari­ness or bias is more like­ly to arise if the duty to en­sure pro­ce­dur­al fair­ness is not ob­served.Pitt Polder Preservation Society v Pitt Meadows (District), 2000 BCCA 415.

Vancouver’s Procedure Bylaw de­scribes the process that Vancouver Council has adopt­ed for pub­lic hear­ings. It is right­ly oner­ous and time-con­sum­ing.

Official community/development plans

Official com­mu­ni­ty plans and official de­vel­op­ment plans work at a lev­el above zon­ing.

All lo­cal gov­ern­ments oth­er than Vancouver have a tool avail­able to them called an official com­mu­ni­ty plan (OCP). The near-equiv­a­lent in Vancouver is called an official de­vel­op­ment plan (ODP). These de­scribe a vi­sion for plan­ning more gen­er­al­ly than at the lev­el of zon­ing. They have cer­tain manda­to­ry el­e­ments, in­clud­ing “lo­ca­tion, amount, type and den­si­ty of res­i­den­tial de­vel­op­ment re­quired to meet an­tic­i­pat­ed hous­ing needs over a pe­ri­od of at least 5 years,” and “the ap­prox­i­mate lo­ca­tion, amount and type of present and pro­posed com­mer­cial, in­dus­tri­al, in­sti­tu­tion­al, agri­cul­tur­al, recre­ation­al and pub­lic util­i­ty land uses.”See the full list at LGA, supra note 2, s 473.

Official com­mu­ni­ty plans can­not be adopt­ed with­out a pub­lic hear­ing.See ibid, s 464. Once a coun­cil adopts an OCP, coun­cil be­comes con­strained by the OCP. “All by­laws en­act­ed or works un­der­tak­en by a coun­cil … af­ter the adop­tion of … an official com­mu­ni­ty plan … must be con­sis­tent with the rel­e­vant plan.”Ibid, s 478(2). However, a coun­cil also gains some efficiency if it de­vel­ops con­sis­ten­ly with the OCP: coun­cil “is not re­quired to hold a pub­lic hear­ing on a pro­posed zon­ing by­law” that is “con­sis­tent with the OCP.”See ibid, 464(2).

Vancouver’s official de­vel­op­ment plans sim­i­lar­ly con­strain Council. However, there are two ma­jor differences. First, the Vancouver Charter does not re­quire a pub­lic hear­ing be­fore pass­ing an ODP. Only when the ODP des­ig­nates a her­itage con­ser­va­tion area does Council need to hold a pub­lic hear­ing.See Vancouver Charter, supra note 2 (“Before adopt­ing [an ODP by­law], if the official de­vel­op­ment plan des­ig­nates a her­itage con­ser­va­tion area... the Council must hold a pub­lic hear­ing”, s 562(3)). See also Canadian Pacific Railway Co v Vancouver (City), 2006 SCC 5 (“[t]he Vancouver Charter im­pos­es no statu­to­ry re­quire­ment to hold a pub­lic hear­ing be­fore adopt­ing an ODP” at para 40). Second, even when a pro­posed zon­ing by­law is con­sis­tent with an ex­ist­ing ODP, Council can­not avoid the pub­lic hear­ing re­quire­ment for the zon­ing by­law.

Again, the Local Government Act (ap­ply­ing to all mu­nic­i­pal­i­ties oth­er than Vancouver) says that “[a] lo­cal gov­ern­ment is not re­quired to hold a pub­lic hear­ing on a pro­posed zon­ing by­law if (a) an official com­mu­ni­ty plan is in effect for the area that is sub­ject to the by­law, and (b) the by­law is con­sis­tent with the official com­mu­ni­ty plan.”LGA, supra note 2, s 464(2). There just is no equiv­a­lent in the Vancouver Charter.The Vancouver Charter does incorporate several portions of the Local Government Act, but not Section 464. See Vancouver Charter, supra note 2, s 2.1.

Why is Vancouver different?

Vancouver didn’t start out so different.

As re­cent­ly as 1979, all mu­nic­i­pal­i­ties in British Columbia were in rough­ly the same po­si­tion that Vancouver is in to­day on this is­sue. Section 721(1) of the Municipal ActThe precursor to today’s Local Government Act. as it ex­ist­ed in 1979 sim­ply said, “A zon­ing by­law shall not be adopt­ed, amend­ed or re­pealed ex­cept af­ter a hear­ing un­der sec­tion 720.”Municipal Act, RSBC 1979, c 290, s 721. There was no pos­si­bil­i­ty to waive that pub­lic hear­ing, even when the com­mu­ni­ty had an official com­mu­ni­ty plan in place. Unlike the sit­u­a­tion in Vancouver to­day, those OCPs also re­quired a pub­lic hear­ing.See ibid (“[t]he coun­cil shall not des­ig­nate a com­mu­ni­ty plan as an official com­mu­ni­ty plan un­less it has held a pub­lic hear­ing”, s 711).

By the ear­ly 1980s, mu­nic­i­pal­i­ties were get­ting frus­trat­ed with inefficiencies in the plan­ning process, par­tic­u­lar­i­ly the dou­ble-hear­ing re­quire­ment.See Terry Johnston, Local Government Rural Land Use Planning in BC (MA the­sis, University of British Columbia, 1990) [un­pub­lished] (“it is clear that the dual amend­ments re­quired... were a du­pli­ca­tion of effort” at 82). Bill Ritchie, Municipal Affairs Minister at the time, even said, “I ful­ly be­lieve once an official mu­nic­i­pal plan is in place, there is no fur­ther need for plan­ning per­son­nel.”Ibid at 84.

The re­sult was Bill 62, the Municipal Amendment Act, 1985.Municipal Amendment Act, 1985, SBC 1985, c 79. It in­tro­duced the pub­lic-hear­ing waiv­er for zon­ing by­laws that are con­sis­tent with the com­mu­ni­ty plan: “[w]here an official com­mu­ni­ty plan is in effect for the area that is sub­ject to a pro­posed zon­ing by­law and the pro­posed by­law is con­sis­tent with the plan, a lo­cal gov­ern­ment may waive the hold­ing of a pub­lic hear­ing on the pro­posed by­law.”Ibid, s 8, which added the quoted text as s. 956(4) of the Municipal Act. Municipal Affairs Minister Bill Ritchie pre­sent­ed the fol­low­ing mo­ti­va­tion: “Bill 62 is de­signed to stream­line the com­mu­ni­ty plan­ning process. It is de­signed to reg­u­late land use con­trols, es­pe­cial­ly in the rur­al ar­eas, to fa­cil­i­tate faster and more flexible re­spons­es to de­vel­op­ment pro­pos­als, and to pro­vide greater cer­tain­ty for land in­vestors and lo­cal res­i­dents.”“Bill C-62, Municipal Amendment Act, 1985”, 2nd read­ing, British Columbia, Debates of the Legislative Assembly, 33-3, (21 November 1985) at 7054 (Hon Bill Ritchie).

The im­pe­tus for the 1985 amend­ment was the dou­ble-hear­ing re­quire­ment that had ex­ist­ed un­der the Municipal Act and which ap­plied to mu­nic­i­pal­i­ties oth­er than Vancouver. Their OCPs re­quired pub­lic hear­ings and so did their re­zon­ings, even when con­sis­tent with their OCP. Vancouver has nev­er been legal­ly sub­ject to this dou­ble-hear­ing re­quire­ment, oth­er than when the OCP des­ig­nates a her­itage con­ser­va­tion area. So the amend­ment fo­cused on the the Municipal Act, and the Vancouver Charter got left be­hind. Nonetheless, even though not re­quired, Vancouver has a pol­i­cy to hold pub­lic hear­ings be­fore en­act­ing official de­vel­op­ment plans.See Canadian Pacific Railway Co v Vancouver (City), 2004 BCCA 192 (“it has been the pol­i­cy of the City to hold a pub­lic hear­ing be­fore en­act­ing [an ODP by­law]” at para 94). The sta­tus quo to­day is that Vancouver Council sub­jects it­self to a dou­ble-hear­ing process: one for the ODP and an­oth­er for re­zon­ings even when con­sis­tent with the ODP.

In the ear­ly 1980s, the com­plaint was that two stages of pub­lic hear­ing was a “du­pli­ca­tion of effort” and that plan­ning “had a ten­den­cy to cre­ate un­nec­es­sary bu­reau­cra­cy.”Johnston, supra note 17 at 82. Vancouver is fac­ing sim­i­lar is­sues to­day. Vancouver Council and the province should de­lib­er­ate­ly con­sid­er whether this dis­tinc­tion be­tween the Local Government Act and the Vancouver Charter con­tin­ues to make sense. If Vancouver Council is go­ing to use a pub­lic hear­ing process for its ODPs, it should get the same efficiency re­ward that oth­er mu­nic­i­pal­i­ties get (that a pub­lic hear­ing is not re­quired for re­zon­ings con­sis­tent with the ODP).And if Vancouver Council wants to retain flexibility, the avoidance of a public hearing (for rezonings that are consistent with the ODP) could be conditioned on the ODP itself having been subject to a public hearing.

A concrete proposal

In my view, the above sug­ges­tion could be im­ple­ment­ed by delet­ing s. 566(1) of the Vancouver Charter and in­sert­ing:

(1) Subject to sub­sec­tion (1.01), the Council must not make, amend, or re­peal a zon­ing by­law with­out hold­ing a pub­lic hear­ing on the by­law, and an ap­pli­ca­tion for re­zon­ing shall be treat­ed as an ap­pli­ca­tion to amend a zon­ing by­law.

(1.01) The Council is not re­quired to hold a pub­lic hear­ing on a pro­posed zon­ing by­law if

   (a) an official de­vel­op­ment plan is in effect for the area that is the sub­ject of the zon­ing by­law,

   (b) the official de­vel­op­ment plan was passed af­ter a pub­lic hear­ing for the pur­pose of al­low­ing the pub­lic to make rep­re­sen­ta­tions to the Council re­spect­ing mat­ters con­tained in the official de­vel­op­ment plan, and

   (c) the zon­ing by­law is con­sis­tent with the official de­vel­op­ment plan.