Canada: Put Your Docks Up!

Last Updated: May 11 2016
Article by Kathleen Higgins

Municipalities often struggle to address contentious local issues through zoning bylaws out of fear that their actions will be subject to legal challenge.

On March 31, 2016 the B.C. Supreme Court rendered its decision in Dong v. Bowen Island Municipality, 2016 BCSC 553. The case was the culmination of a long and bitter feud that pitted long-time residents of Bowen Island against municipal council and other residents with respect to the construction of docks on the southwest coast of the island.

Dong provides a case study of a municipal council doing everything right in the course of adopting a zoning bylaw to address the concerns of residents

Background

The petitioners in the case were Shu Lin Dong and Zhen Wang who had each purchased a waterfront lot in the Cape Roger Curtis ("CRC") area which was a popular waterfront area for residents of Bowen Island. Both owners wanted to construct docks on the foreshore in front of their lots. Three similar docks on nearby lots had already been approved by the Province and constructed by the time the municipal council took action. These docks were long and narrow and measured 4 feet in width and 280 to 400 feet in length.1

In response to widespread resident concern about the docks, council passed bylaws regulating the construction of docks in 2013. Despite these bylaws, residents remained concerned and it became an election issue in the fall of 2014. Four members from a group named "Stop the Docks" were elected to council. When the petitioners' applications for building permits were pending, council proposed and adopted a bylaw prohibiting all private docks in the CRC area.

The petitioners challenged the bylaw on the following grounds:

  • the bylaw was ultra vires because it was inconsistent with the Official Community Plan ("OCP");
  • the bylaw was passed in haste and in bad faith;
  • the bylaw was discriminatory; and
  • there were procedural fairness concerns due to inadequate public disclosure, inadequate public consultation and certain counsellors failing to consider the matter objectively.

The municipality's response to these grounds was:

  • it acted in good faith;
  • the bylaw was consistent with its OCP;
  • zoning is discriminatory by its very nature;
  • there was no improper motive in enacting the bylaw; and
  • there was no breach of procedural fairness.

The Decision

In a well written decision, the chambers judge, Justice Punnett, carefully considered the substance of the petitioners' complaints.

Consistency with OCP

The chambers judge first considered the issue of whether the bylaw was inconsistent with the OCP. He found that the petitioners' argument attempted to "cherry pick certain provisions of the OCP" to the exclusion of others. When looking at other parts of the OCP, it became clear that the bylaw was consistent with the municipality's other public interest and environmental objectives. He took into account the "extensive material the municipal council had before it in considering the bylaw", including a comprehensive planning department report that directly addressed the bylaw's consistency with the OCP.

Bad Faith

With respect to the petitioners' argument that the municipality acted in bad faith by specifically targeting the petitioners, he found no evidence of improper motive and bias and ultimately concluded that the council acted within its jurisdiction and was motivated by the public interest in adopting the bylaw.

Discrimination

In considering whether the bylaw was discriminatory, he swiftly dismissed that argument holding that "zoning bylaws are by their nature inherently discriminatory, in that some uses are permitted and some are not". He held that the councillors who voted in favour had not discriminated against the petitioners with an improper motive merely because they held strong views on the issue of private docks in the CRC area.

Procedural Fairness

With respect to the petitioners' argument that the municipality should have disclosed environmental reports included in their applications prior to the public hearing, the chambers judge acknowledged that there was a disclosure requirement, which required the council to disclose materials it was considering in the course of making its decision. However, he concluded that the 255 pages of written material disclosed by the municipality met that requirement. He also rejected other procedural fairness arguments, holding that the municipality had fully complied with the public notice and hearing provisions in the Local Government Act and, in fact, went beyond those requirements by considering an additional staff report and the public hearing outcomes before proceeding to third reading and adopting the bylaw.

Legitimate Expectations

In considering whether the petitioners had a legitimate expectation that the existing regulatory framework would not be changed from the time they initially applied to build a dock to the approval and completion of the dock, the chambers judge ruled that the doctrine of legitimate expectations did not go that far because the municipality was making a legislative and not an administrative decision.

Final Thoughts

This case demonstrates the types of steps that a municipality can take to protect itself from subsequent legal challenges to bylaws. The following are the steps that the municipal council undertook, which were significant to Justice Punnett's decision:

  • the municipal council considered a comprehensive planning department report that directly addressed whether the proposed bylaw was consistent with the OCP;
  • the municipality disclosed a significant amount of information prior to the public hearing, which satisfied the court that it had provided all relevant information that council would consider in making its decision;
  • the municipality complied with the public notice and hearing requirements of the Local Government Act and went even further by considering the response to the public hearing before voting on adoption of the bylaw; and
  • the bylaw was drafted such that it impacted an entire area and was not "targeted" only to the lot owners that had already applied to build a dock.

Dong also confirms the deferential approach that courts will take when it comes to reviewing zoning decisions of municipalities that do not exceed their statutory powers. These are political decisions and property owners who disagree with them should seek their redress at the ballot box and not in the courtroom.

Footnotes

1 The length of a football field is 360 feet.

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.

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