The community association successfully applied for judicial review of a decision by the City of Vancouver and Development Permit Board approving a rezoning bylaw and issuing a development permit for construction of a 36-storey mixed use tower. The court quashed the bylaw and development permit, and directed new hearings, finding that the public hearing process was flawed. The bylaw and development permit arose out of a negotiation between the city and developer for a land exchange proposal, whereby the parties would swap properties across the street from one another and the developer would renovate its former building to provide the city with affordable housing units and obtain rezoning of the former city building so that it could construct a 36-storey tower. The court found that the procedure adopted by the city was unfairly restrictive and directed new hearings which would permit concerned citizens to address the whole project, including the essence and value of the land exchange to the city and its residents.

[2015] B.C.J. No. 124

2015 BCSC 117

British Columbia Supreme Court

T.M. McEwan J.

January 27, 2015

The City of Vancouver owned a property at 508 Helmcken Street (“508”) which was occupied by a housing project in a state of disrepair. The housing project consisted of 87 lower income housing units. The developer owned 1099 Richards Street (“1099”), a building across the street from 508, which housed offices, a preschool and a restaurant. The city and developer negotiated a land exchange proposal, whereby they would swap properties with the developer transferring ownership of its 1099 property to the city in exchange for 508 and closure of an adjacent lane. In exchange, the developer would build a replacement housing project at 1099 as well as an additional 75 units of social housing. The developer would also proceed with its own development project at 508, consisting of a 36-storey mixed-use building, with 448 housing units, a preschool and retail space. The 508 project required the developer to apply for rezoning as its proposed development was significantly larger than what the existing zoning permitted. Following public hearings and submissions, the city enacted the rezoning bylaw subject to certain terms and conditions. In addition, the developer was granted a development permit for the building of 1099.

A community association made up of persons in opposition to the development incorporated and then bought a petition for judicial review seeking to set aside the development permit as well as the rezoning bylaw. The basis for the application was that the city had made a number of procedural missteps and failed to disclose relevant documents at the public hearing.

The court agreed and quashed the rezoning bylaw and development permit. The court found that the procedure adopted by the city was unfairly restrictive, presenting the public with a package of technical material that was opaque, limiting comments on the integrated nature of the project, and in failing to provide an intelligible financial justification for it. Residents of the city have the right to a voice in integrated projects of this kind, and a right to a fair opportunity to express themselves relative to the overall advantages and disadvantages of the proposal. Public hearings of this nature should be as fair, open and transparent as the nature of the overall project dictates. To be fair, 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. The appropriate remedy given the procedural flaws was to quash the rezoning bylaw pertinent to 508 and the development permit pertinent 1099. New hearings were directed that would permit citizens to address the whole project, including the essence and value of the land exchange to the city and its residents.