In order to meet the challenges posed by modern urban development, municipalities and developers increasingly consider complex projects. The BC Court of Appeal's decision in Community Association of New Yaletown v. Vancouver (City) 2015 BCCA 227 ("New Yaletown") clarifies public hearing and disclosure requirements for such projects.
The Court of Appeal's decision in New Yaletown sets out three key points with respect to complex developments which are:
- The scope of the public hearing is restricted to the site being rezoned, even if the project as a whole involves development of another site.
- If the project includes a land exchange between a municipality and a developer, the municipality has no obligation to open the land exchange agreement to public examination.
- The municipality has no obligation to make technical information disclosed to the public easily understandable.
The Proposed New Yaletown Development
The development subject to the New Yaletown dispute included the following elements:
- a new social housing building on a property owned by the developer, Brenhill Developments Limited, at 1099 Richards Street ("1099 Richards");
- a land exchange agreement (the "Agreement") between the developer and the City of Vancouver (the "City"), exchanging 1099 Richards (once the social housing was built on it) for a property owned by the City at 508 Helmcken Street ("508 Helmcken"); and
- a rezoning of 508 Helmcken to construct a 36-story mixed use tower (the "Rezoning By-law").
The City adopted the Rezoning By-law and issued a development permit for 1099 Richards (the "Development Permit"). The City also amended the Downtown Official Development Plan to allow increases in floor space ratio to ensure the inclusion of social housing. The Community Association of New Yaletown ("CANY") challenged the City's decisions.
Trial Decision
The Supreme Court of BC sided with CANY and set aside the Rezoning By-law and the Development Permit. In the Supreme Court's opinion, the City's process was flawed for the following reasons:
- The City took an "unduly restrictive" view of the topics to be addressed at the public hearing. Residents should have been given an opportunity to comment on the merits of the entire plan.
- The information disclosed was technical and opaque.
- The dollar values presented by the City were "arbitrary".
The decision of the Supreme Court left municipalities and developers uncertain as to the scope of public hearings and their associated disclosure.
Court of Appeal Decision
The Scope of the Public Hearing was Restricted to the Rezoning By-law
The Court of Appeal overturned the Supreme Court decision. First, the Court of Appeal clarified that the only issue for the public hearing was the rezoning which triggered the public hearing. The public hearing was not an opportunity for concerned citizens to "take a position on the business dealing of the City or the intricacies of its housing strategy". The City may issue development permits without holding public hearings. The issuance of the Development Permit was beyond the required scope of the public hearing.
Distinct Functions, Distinct Duties
Secondly, the City's disclosure was more than adequate. The City did not need to disclose the Agreement to fulfill its obligations. Nor did the City need to justify the dollar values it used.
Prior to the public hearing, the City disclosed an 81 page policy report on its website (the "Policy Report"). The Policy Report provided analysis and summary of the major themes both for and against the decision. Before both courts, CANY argued that the Agreement itself needed to be disclosed.
The Court of Appeal held otherwise. By entering into the Contract, the City was exercising its business powers, which include acquiring and disposing of real property pursuant to section 190 of the Vancouver Charter. The Vancouver Charter further enables the City to consider such transactions without public scrutiny. The City acts in different capacities when it carries out its business functions and when it carries out public hearings. While the City's business interests cannot overwhelm its legislative and adjudicative duties, the City is not under a strict duty of procedural fairness when it carries out all of its functions. With the Policy Report in hand, citizens did not need the Agreement, or the precise financial details therein, in order to make informed commentary. Most importantly, the Agreement was not before City Council when it made its Rezoning By-law decision.
A Technical Decision Requires Technical Information
Thirdly, the City was not under a duty to make the disclosed information less technical. The Court of Appeal found the Policy Report to be a "clear and cogent" description of the issues. While it included technical information, aspects of a complex development like the New Yaletown development are a "matter of some technicality". It follows that the public should be able to consider the technical information in order to make informed commentary in a public hearing.
Lessons for Complex Developments
As complex developments are undertaken, municipalities will have to make multiple decisions. Some of these decisions, such as amending a zoning by-law, require public hearings. However, the legislation does not require public hearings when other decisions are made, such as the granting of development permits under the Vancouver Charter. Municipalities will need to carefully consider which aspects of a complex development fit within the scope of disclosure. Different duties arise at the different stages of a project and the most fulsome disclosure requirement will not necessarily apply to all.
Business decisions are inherent in complex developments. Municipalities and developers must be able to consider the business aspects away from the public glare in order to preserve their bargaining positions. By clearly delineating a municipality's business functions from its legislative and adjudicative functions, the Court of Appeal established workable limits to the materials that must be disclosed.
Municipalities and developers base their decisions on technical information. If this information falls within the scope of a public hearing, then a municipality must disclose it. However, it is not necessary for a municipality to make technical information readily digestible for the public. Nor is it the role of the municipality to convince concerned citizens that the project as a whole has merit, or more broadly, to justify its development policies.
The Court of Appeal's decision in New Yaletown should not be viewed as lowering the bar for public hearing disclosure. What the decision does is take into account the different functions and duties that municipalities have when they consider complex, multi-stage and multi-property developments. Navigating these duties will remain complex tasks for both municipalities and developers. Nevertheless, the New Yaletown decision, along with the previous developed line of case law, provides a road map that will allow municipalities and developers to achieve their development objectives.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
