In a recent article I raised the potential for Alberta city charters to go off the constitutional rails should Edmonton or Calgary city councils use their panoply of newly subdelegated powers without sufficient deference to the Province’s sphere of powers. While this scenario unfolds – administrations of each City are currently drafting bylaws that will form part of their respective charters – two recent courts of appeal decisions are indicative of this elision of power of elected governments to their administrations. The exclusive jurisdiction of municipal councils to prescribe land uses and land use rules through bylaws that require public participation is being eroded either by their own deliberate actions (Vancouver) or by the generous application of bylaw relaxation provisions (Okotoks).
Caring Citizens of Vancouver Society v. Vancouver (City), 2018 BCCA 87
This case is interesting and at least instructive to Alberta charter cities because it affirms that the power to relax land use bylaw provisions in the Vancouver Charter extends to uses. The prevailing view, at least prior to this decision of the British Columbia Court of Appeal (“BCCA”), was that uses prescribed for a land use district in a land use bylaw were the exclusive power of a municipal council and could not be relaxed by (or the power delegated to) the municipal administration.
As one would expect, the Vancouver Charter gives the Vancouver City Council the power to make zoning bylaws:
565.(1) The Council may make by-laws
(a) dividing the city or any portion thereof into districts or zones of such number, shape, or size as Council may deem fit;
(b) regulating, within any designated district or zone, the use or occupancy of land and land covered by water for or except for such purposes as may be set out in the by-law.
The Charter also prohibits Council from making, amending, or repealing a zoning bylaw “until it has held a public hearing thereon” (sec. 566.(1)).
However, as one perhaps might not expect, the Charter permits Council to delegate to City administration broad powers over zoning matters:
565A Council may make by-laws
(d) delegating to any official of the city or to any board composed of such officials such powers of discretion relating to zoning matters which to Council seem appropriate.
Council is also granted the power to make bylaws that delegate the power to relax its own zoning bylaws and this power extends specifically to certain uses:
565A Council may make by-laws
(e) providing for relaxation of the provisions of a zoning by-law or a by-law prescribing requirements for buildings where
(i) enforcement would result in unnecessary hardship,
(ii) Council determines that the proposed development would make a contribution to conserving heritage property,
(iii) Council determines that the proposed development makes provision for public space or activities,
(iv) Council determines that the proposed development makes provision for low cost housing for persons receiving assistance, or
(v) the proposed development is in relation to a special event, as designated by Council by by-law or resolution.
Such relaxation may be limited in time and may be subject to conditions. The by-law may authorize such relaxation by an official of the city or by any board constituted pursuant to subsection (d). The power to relax the provisions of a zoning by-law shall not be used to permit construction to provide for multiple occupancy in a one family dwelling district nor to permit the use or occupancy of a dwelling as a multiple dwelling in such district unless it was so used or occupied as at April 1, 1977; provided however, that the occupancy of a suite authorized by a by-law passed pursuant to section 565C shall not constitute a multiple occupancy.
In 2017 Vancouver Council passed Bylaw 11902 pursuant to its powers under section 565A(e(iv) of the Charter, authorizing its Director of Planning to relax provisions of the City’s Zoning and Development Bylaw 3575 where a proposed development includes low cost housing for persons receiving assistance.
The Director thereafter approved a development permit application, using this relaxation power to allow low cost housing in a multi-family zone that did not otherwise provide for it. A non-profit group, Caring Citizens of Vancouver Society (the “Society”), presumably formed for the purpose of mounting a challenge, petitioned the courts to have this Bylaw and the development permit issued under it quashed. The Society was unsuccessful before the Supreme Court of BC (“BCSC”), so appealed that decision.
The specific issues on appeal were (i) whether sec. 565A(e)(iv) gives Council authority to delegate to an unelected official the power to issue development permits that allow land uses that are otherwise prohibited by the zoning bylaw, (ii) whether notice of the public hearing of Bylaw 11902 before Council was adequate.
The Society argued that “changes to the provisions of the Zoning By-law touching on use or density can be made only after a public hearing has been held pursuant to s. 566” (Caring Citizens of Vancouver Society v. Vancouver (City), 2018 BCCA 87 (CanLII)), para. 29). The BCCA disagreed, noting with approval the BCSC’s decision in F.C.R.A. False Creek Residents Association v. Vancouver (City), in which Justice Sewell states:
I can see no indication in s. 565A(e) of the Charter requiring treatment of the power to relax land use restrictions differently from the power to relax any other provision of a zoning bylaw. The plain wording of the subsection, which provides that “[c]ouncil may make by-laws … providing for the relaxation of the provisions of a zoning by-law…” makes no such distinction. The legislature must be taken to have been aware that one of the most important provisions of any zoning bylaw is its restriction on land use. However, it imposed no limitation on the type of provision that could be relaxed, preferring to limit the circumstances in which the power to relax could be exercised.
The False Creek decision dealt with a development permit for a presentation centre on part of the lands known generally as the Expo lands purchased from the provincial government after Expo 86. The zoning of the subject property was restricted to park, recreational and ancillary uses. In 2005, City administration issued a development permit to the owner of the property for a presentation centre, which was not a listed use. It did so pursuant its relaxation power under s. 565A(e)(i) (unnecessary hardship). The BCCA in Caring Citizens considered the issue before it to be analogous, and concluded that the Legislature clearly intended that uses could be relaxed – specifically where the proposed development makes provision for low cost housing for persons receiving assistance under s. 565A(e)(iv), and more generally by reference to the last paragraph of s. 565A (reproduced above):
[I]t is presumed that the Legislature would not have used words that are unnecessary or meaningless, and the inclusion of a restriction on the power of relaxation relating to land use must mean that the power of relaxation was intended by the Legislature to include land use (para. 45).
Regarding the adequacy of notice of the public hearing for Bylaw 11902, the Society argued “the public would not have understood that the delegation of the power to relax zoning provisions would have the effect of allowing a new use in various zones without a public hearing” (para. 54). The BCCA disagreed, noting with approval the decision in Broadway Residents Association v. Vancouver (City), 2000 BCSC 840 (CanLII):
[T]he purpose of the notice is to alert the public so that they can decide whether to make further inquiries or to attend at the hearing. In the social housing in certain areas (para. 55).
It is hard to quarrel with the BCCA’s reasoning that the Charter clearly permits Vancouver’s City Council to delegate to its administration the power to relax uses under Zoning and Development Bylaw 3575. However, the decision avoids the larger issue of whether Bylaw 11902 and the Charter provisions enabling it are impugnable because they are an improper delegation of power. By a single public hearing of Bylaw 11902, Council has indefinitely delegated to the Director of Planning the discretion to add low cost housing to multi-family zones where that use was not already approved by Council. As discussed in more detail in my recent article “Alberta City Charters: Extraordinary Powers Handed Out with the Daily Rations of Government” this delegation of power to administration to substantively amend City Council’s zoning bylaw could be unlawful for reasons not addressed in the Caring Citizens decision. And it is instructive to Alberta charter cities as they set out on their charter journeys because it is indicative of the pervasive nature of regulatory creep.
White v. Okotoks (Subdivision and Development Appeal Board), 2018 ABCA 86
This was an appeal of a decision of the Town of Okotoks Subdivision and Development Appeal Board (“SDAB”). The Town of Okotoks Municipal Planning Commission (“MPC”) approved a development permit application for a 32-unit attached housing development in Okotoks, Alberta, which the SDAB upheld. This approval required a substantial relaxation of the maximum density for this use under the applicable land use district – of the magnitude of 133%.
An adjacent land owner appealed the MPC’s decision to the SDAB, which dismissed his appeal. (In the interests of full disclosure, I argued this appeal before the Court.) The Alberta Court of Appeal (“ABCA”), granted leave to hear the appeal but ultimately dismissed it. The ABCA relied on Thomas v. Edmonton (City) for the proposition that the SDAB’s relaxation powers under section 687(3)(d) of the Municipal Government Act (“MGA”) were “broad and elastic.” The Town of Okotoks, as is typical of Alberta municipalities, adopted this same relaxation test under its land use bylaw, which the MPC applied in approving this development.
The issue before the Court was the extent to which the relaxation power of the SDAB (and, by extension, the development authority which applies the same relaxation test), can vary density without intruding on the exclusive jurisdiction of a municipal council to pass a land use bylaw. That is, an SDAB’s variance power may be “broad and elastic” under sec. 687(3)(d), but it must nevertheless have a jurisdictional limit. The issue was what is that limit.
The Court was not, however, inclined to quantify this limit. If this decision has value as a precedent, that limit may be somewhere beyond a 133% relaxation, provided it meets the test under s. 687(3)(d):
In determining an appeal, the subdivision and development appeal board
(d) may make an order or decision or issue or confirm the issue of a development permit even though the proposed development does not comply with the land use bylaw if, in its opinion,
(i)the proposed development would not
(A)unduly interfere with the amenities of the neighbourhood, or (B) materially interfere with or affect the use, enjoyment or value of neighbouring parcels of land,
(ii) the proposed development conforms with the use prescribed for that land or building in the land use bylaw.
The MGA prescribes that (i) a municipal council must pass a land use bylaw; (ii) a municipal council cannot delegate its power to pass bylaws; (iii) a land use bylaw must divide the municipality into districts; (iv) each land use district must prescribe one or more uses; (v) each residential district must establish the number of dwelling units permitted on a parcel of land.Land use bylaws typically also prescribe the height, floor area, size and location of buildings, among other development standards, but unlike use and density, these standards are not requirements of a land use bylaw under the MGA.
If the ABCA is prepared to allow a 133% increase in density to a multi-family use on the basis that this relaxation met the test of sec. 687(3)(d) and that this test is broad and elastic, then the perhaps unintended consequence of this decision is that what was typically considered a minor relaxation power by both municipal administrations and subdivision and development appeal boards is no longer that. With the exception of uses (which cannot be relaxed under the MGA), a municipal council’s exclusive jurisdiction to substantively amend its land use bylaw through a public hearing process is arguably subject to the broad, elastic and (as yet) unquantified relaxation power that council delegates to its planning administration and which the MGA grants to subdivision and development appeal boards. And, considering the provisions in the Vancouver Charter that allow for uses to be amended by City administration (as affirmed by the BCCA in Caring Citizens), could Alberta city charters be far behind, particularly because of similar pressures on Edmonton and Calgary to provide affordable housing.