The Community Association of New Yaletown [CANY] hopes to decide this week whether to continue its legal battle over a complicated land swap between the City of Vancouver and Brenhill Developments Ltd. CANY recently lost a legal round at the Court of Appeal for British Columbia. Its recourse is to apply for leave to appeal the case to the Supreme Court of Canada. Leave or permission is given by the court when a case involves a question of public importance.
Battle lines were drawn in July 2013 when Vancouver city council voted to rezone 508 Helmcken St. for Brenhill Developments to build a 36-storey tower beside Emery Barnes Park. The rezoning was conditional on Brenhill developing a 162-unit social housing project on 1099 Richards St. to replace the city’s 1985-built Jubilee House at 508 Helmcken.
CANY sought a judicial review of the land swap based partly on concerns about secrecy surrounding the deal. It argued the city didn’t meet its duty of procedural fairness.
The B.C. Supreme Court ruled in CANY’s favour in late January, quashing city decisions, including the rezoning for 508 Helmcken and the development permit for 1099 Richards St. — the latter building was already under construction, so a stop-work order was issued. The city appealed the decision.
Before the appeal was decided, the development permit for 1099 Richards St. went back to the Development Permit Board where it was re-approved April 7. The rezoning application for 508 Helmcken went back to public hearing April 14, where it too was re-approved. Construction at 1099 Richards St. resumed shortly after those decisions.
The Court of Appeal for British Columbia announced its decision in favour of the city’s appeal several weeks ago and then released its written reasons last Thursday. The court concluded the city had met its duty of procedural fairness and that it “provided a more robust process than was strictly required.”
The decision pointed out that residents have two important rights when the city is considering rezoning a property: the right to be given sufficient information to come to an informed opinion and the right to express this opinion to the city at a public hearing.
“When citizens feel they have been denied one or both of these rights, they may seek a remedy in the courts by petitioning for judicial review. However, judicial review has well defined limits. Citizens who disagree with the City’s view of the public interest must seek change through the political process rather than the courts,” the court stated.
CANY spokesman Jon Green said the group is disappointed by the decision and is now weighing its options. Considerations include the cost of further legal action. CANY has funded its case through donations from residents across Vancouver, according to Green.
“It comes down to a number of factors — everything from our chances that we’d win on appeal to the Supreme Court of Canada and obviously cost is going to be a factor,” he said. “So we’re trying to nail down these types of points to determine whether we want to proceed or not.”
Green called the latest ruling a significant decision that will impact how municipalities across Canada conduct public hearings and ultimately the degree of transparency required of local governments.
Considering construction continues on 1099 Richards, Green acknowledges the chance of it being stopped is quite low, but he maintains the purpose of an appeal would be to address the wider implications of the issues in question.
“This, I think, is really going to come down to more than this development. This is really fundamentally about how the city operates and how much transparency they’re required to give and so it’s more than just about 1099 Richards or 508 Helmcken. One could argue it goes beyond the City of Vancouver. This could have implications not only in the province but all across Canada with how cities disclose information to the public,” he said.
Brian Jackson, the city’s head planner, called the appeal court reasoning good news.
“The judges were quite clear in setting out that we had provided adequate information for the public to understand the basis of the two developments — that they were happy with that,” he said. “So we will continue to make sure that our reports are as readable and as transparent as possible.”
Jackson added there are lessons to be learned from the process and if there are ways to make information clearer earlier to the public, the city will endeavour to do that.
nocconor@vancourier
@naoibh
