A number of recent decisions of the British Columbia courts highlight various issues related to the enactment and enforcement of zoning bylaws. Both local governments and land developers ought to be aware of these decisions.
Zoning bylaws must be consistent with long range planning policies
In Sevin v. Prince George (City), 2012 BCSC 1236, the British Columbia Supreme Court confirmed, in the context of rezoning of land to permit a therapeutic recovery centre, that all zoning bylaws must comply with an Official Community Plan (“OCP”) (i.e., the long range planning policy) prepared by local governments. This decision is also interesting as an example of a Court interpreting the use of land for a recovery centre, a type of development which often raises opposition by neighbours in residential areas.
In Sevin, a resident brought a petition to declare invalid a bylaw passed by council to rezone a particular property to permit a recovery centre for women in a generally residential zone. The main basis of invalidity was inconsistency of the bylaw permitting the recovery centre with the OCP, which designated the area as “rural residential”. The City argued that the decision to rezone was valid because it fell within the range of rational choices for what constituted residential.
The Court found that the proposed recovery centre, which meant to provide recovery services for women suffering from substance abuse (which women were to reside in the facility only during their recovery period) was essentially an institutional use and was not meant to be a residential home environment. As such, the proposed use was found to be inconsistent with the “rural residential” designation in the OCP and the bylaw was quashed.
Zoning bylaws must be enacted in accordance with the requirements of procedural fairness
In two recent decisions, Fisher Road Holdings Ltd. v. Cowichan Valley Regional District, 2012 BCCA 338 (“Fisher Road”) and P.S.D. Enterprises Ltd. v. New Westminster (City), 2012 BCCA 319 (“P.S.D. Enterprises”), the British Columbia Court of Appeal commented on the importance of procedural fairness in enacting zoning bylaws. These decisions serve as a reminder that all material to be taken into account by a local government in deciding on whether to adopt a zoning bylaw must be ascertained and made available to the public prior to the public hearing. Any new representations made after the public hearing may trigger the need to re-convene the public hearing. P.S.D. Enterprises should be a particular caution to land developers who may wish to speed up the zoning process by attending in front of council after the public hearing has taken place and inadvertently triggering the need to conduct a new public hearing.
In Fisher Road, the Regional District considered, concurrently, an amendment to a license in respect of a composting operation and a zoning bylaw removing composting and recycling as permitted uses of the property on which the composting operation was taking place. As part of its review of the license amendment, the Regional District commissioned two reports, both of which were posted on the Regional District’s website and were available to the public.
Despite the availability of the reports, the Court of Appeal quashed the zoning bylaw on the basis that the Regional District breached its duty of procedural fairness in enacting the zoning bylaw by failing to make it clear to the interested parties that the two reports (which were commissioned in respect of the license amendment) would also be relied upon by the Regional District in deciding whether to pass the Bylaw.
In P.S.D. Enterprises, a property owner (Mr. Walia), anxious about the status of rezoning of his property, attended a council meeting after the public hearing, allegedly upon encouragement from a member of the planning staff, and made a number of new submissions to council after the public hearing. As a result, third reading of the bylaw was rescinded, a new public hearing was held and the bylaw was unanimously defeated. Mr. Walia commenced an action alleging an array of wrongdoing on the part of the City and its planning staff, including negligence in failing to warn him that no new representations should be made to council after the public hearing.
The trial judge and the Court of Appeal both held that the City was not negligent in not preventing Mr. Walia from making new representations to council. According to the Court of Appeal, the City did not owe a private law duty of care to Mr. Walia in this regard.
Zoning bylaws can be selectively enforced
In T.S.G. Sales Ltd. v. Vancouver (City), 2012 BCSC 1177 (“T.S.G.”), the British Columbia Court of Appeal confirmed that simply because a local government has not taken enforcement action against all violators of a zoning bylaw, does not mean that it cannot enforce the zoning bylaw against a particular violator. Local governments should take note of this decision as it confirms a long-established principle that local governments have discretion as to whether and when to enforce zoning bylaws. Land developers should also take note of this decision, and the underlying principle, when conducting due diligence in respect of various uses permitted on any particular land.
In T.S.G., the petitioner was operating an adult retail store contrary to the City of Vancouver Zoning and Development Bylaw. The City ordered that the use cease. T.S.G. argued, among other things, that the enforcement of the Zoning Bylaw against it was discriminatory as there were other similar stores operating in violation of the Zoning Bylaw against which no enforcement action was taken by the City.
The Court rejected T.S.G.’s argument, holding that the City’s efforts to require T.S.G. to comply with the Zoning Bylaw simply reflected an instance of selective bylaw enforcement which, in and of itself, did not constitute discrimination.