Tuesday, 19 June 2012


Municipal lawyers make money by knowing things that are generally not worth knowing. 

The idea of encouraging the installation of wind turbines  in the relatively dense areas of Vancouver is probably no more  idiotic than the other things done by our Council. A permit issued for one of these things could quite likely be set aside by a court.

Section 10 of the Zoning and Development Bylaw contains a grab bag full of general regulations. These regulations apply to each of the uses listed in the land use section of the bylaw. It says:

Relaxation of Limitations on Building Height
10.11.1 Height Increases for Buildings

(d) access and infrastructure required to maintain green roofs or urban agriculture, or roof-mounted energy technologies including solar panels and wind turbines, provided that the Director of Planning considers:
(i) their siting and sizing in relation to views, overlook, shadowing, and noise impacts, and
(ii) all applicable policies and guidelines adopted by Council;

A zoning bylaw regulates the use of land. Use means the purpose for which land can be used. All things that are not expressly permitted are forbidden.  The use section of the RS-5 Residential Zone for example allows a one family dwelling.  (One family dwelling actually means something else but we can deal with that some other time.)  It also allows   

Accessory Uses customarily ancillary to any of the uses listed in this section.

There has been speculation that a developer is planning to install some kind of a wind turbine on or with a new house.  The neighbours are worried about the potential noise and other impacts.

Is a wind turbine in Vancouver customarily ancillary to a single family dwelling?

The simple answer is: No

The City has adopted by resolution a bulletin which sets out certain guidelines for Wind Turbines. This is not a zoning bylaw.  Zoning bylaws must be adopted by "bylaw" following a public hearing. The city has no power to adopt zoning bylaws in any way other than as permitted by the Vancouver Charter. A resolution will not do the trick. There must be a public hearing at which the public has its say. [That the councilors pay any attention to what you have to say is what is known as a legal fiction.]

It use to be that where there is an ambiguity in a zoning bylaw it was construed in favor of the taxpayer. That has changed over the years. Now it favors the Government. So, it is always possible that a court would hold that the sleight of hand involved in leaving turbines out of the listing of uses, and slipping them into the general regulations does the trick. If I were the developer though, I would not count on it. It does not pass the 'bad odor' test.

So when the City issues a permit for a wind-turbine for the house next door, and if you think there is a enough wind in Vancouver (other than at City Hall)  to make the infernal contraption squeak in the night, then sue them. File a petition for judicial review against the City and Developer to quash the  the permit. While you're at it, ask the court to declare that wind turbines are not a permitted accessory use. Also ask for court costs.  

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