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A plan is a law. It must communicate proposed rules about land use that can be understood by those who are governed by it. It must speak with enough clarity that it can be enforced by those who must enforce it.
I watched some of the West End Official Community Plan ("OCP") public hearing on streaming video. (If Vancouver was any other town in B.C. it could have had an OCP. However, it is Vancouver and has only those powers conferred by the Vancouver Charter. It can enact Official Development Plans which are not quite the same as OCPs.)
One group of speakers could hardly contain their bliss. The days of glory had arrived. Others found it incomprehensible and grimly asked for more time to study it.
An Official Development Plan under the Vancouver Charter does not require the changes it advocates. It requires only that if land use regulations are amended in the future, the changes must be consistent with the plan. If inconsistent, the amending regulations can be set aside by a court. It is unlawful to undertake any development contrary to the ODP. (Vancouver Charter s. 563)
If a plan is to apply for thirty years, subsequent councils of different political stripes, should be able to take some direction from it. They must be able to determine whether or not a proposed development or zoning amendment is consistent with the plan. The plan does not have to be precise, but it must say something.
Conveyancing lawyers in Vancouver do not normally give an opinion on whether any particular development can take place on a parcel. If a lawyer asks for a letter from the City, it will respond and will charge for the response. It will not, however, warrant its accuracy and will warn that it should not be relied upon.
I will comment on a few parts of the West End Plan in a later post. For now I want to review the powers pursuant to which it was enacted.
Vancouver Land Use Powers
Vancouver zoning regulations are found in a series of separate publications.
(1) Zoning and Development Bylaw No. 3575;
(2) The Official Development Plan Bylaws.
(3) Subdivision Bylaw No. 5208 and
(4) Parking Bylaw No. 6059.
There are also published policies and administrative bulletins to guide staff in interpreting the bylaws and exercising their discretion. These policies are not by-laws.
The Vancouver Charter differs from the Local Government Act in that Council has greater powers to delegate discretion in zoning and planning matters (Vancouver Charter, s. 565).
Comprehensive Development Zones
In conventional zones Council approves bylaws that regulate setbacks, floor space ratios, and height regulations. The result is a regulatory girdle into which the building must be slipped. A minimum amount of discretion is required in administering these bylaws. The plan checker’s task is limited to ensuring that the numbers match those the bylaw prescribes.
In contrast, in comprehensive development zones, Council is authorized to designate zones in which no regulations are fixed (s. 565(1)(f) of the Vancouver Charter). In exercising this power, Council has enacted two types of comprehensive development zones: the “single site” zone and the “official development plan” area. Official development plans govern large neighbourhoods or communities.
All comprehensive development bylaws are listed in the Zoning and Development Bylaw in a single district schedule entitled “CD-1” (Comprehensive Development) District Schedule. The district schedule includes over 75 pages of addresses and the enactment date of the bylaw applicable to the comprehensive development area.
Official Development Plans
Vancouver has somewhat different planning powers than other municipalities which are governed by the Local Government Act which, in s. 877 lists statements that must be included.
Section 561 of the Vancouver Charter authorizes the creation of long-term development plans that relate to planning for a regional growth strategy. Such plans may then be adopted as “official development plans” under s. 562 of the Vancouver Charter. Not all areas of the city are covered by an official development plan.
Two bylaws may simultaneously cover certain large districts of the city. For example, the downtown district (created by Bylaw No. 4911) amends the zoning map to include the area within certain boundaries as “a Comprehensive Development District to be known and described as ‘Downtown District (DD)’.” The Downtown Official Development Plan (Bylaw No. 4912) applies to the same area. Section 3 of Downtown District Bylaw No. 4911 permits virtually all commercial, residential, institutional, industrial, parks, and public uses. These uses are permitted subject to the form, location and any special characteristics being in conformity with any Official Development Plan, By-law or applicable policies and guidelines adopted by Council and subject to such other conditions not inconsistent therewith which the Development Permit Board in its discretion may prescribe.
The Greenhouse Reduction Plan is an official development plan adopted in May 2010 that sets out statements on targets and policies.
Neighbourhood Vision Plans
In addition to official development plans, certain neighbourhoods have neighbourhood vision plans. These resulted from efforts of the Planning Department in 1997 to achieve a high level of community participation. Although the plans do not have the legal status of an official development plan, they can be just as influential on development decisions because neighbourhood vision implementation committees continue to meet, review plans, and meet with developers, and have varying degrees of influence. They generally should not be ignored by developers. These exist in Dunbar, Kensington-Cedar Cottage, Victoria-Fraserview, Killarney, Sunset, Hastings Sunrise, Renfrew-Collingwood, Arbutus Ridge/Kerrisdale/Shaughnessy (arks), Riley Park/South Cambie, and West Point Grey.
Exercising Discretion
Official development plans are zoning bylaws, at least in form. However, the regulations do not always provide much guidance. The Director of Planning is given a broad discretion to approve, approve subject to conditions, or refuse applications for permits based on a review of the related goals, development guidelines, regulations, and any other policies that Council may determine.
Official Development Plan as a Zoning Bylaw
In Stanley Estates Ltd. v. Vancouver (City) (1985), 28 M.P.L.R. 56 (B.C.S.C.), the court held that the Vancouver Charter grants Council the jurisdiction to enact a development bylaw that is, simultaneously, a zoning bylaw.
Single-site Comprehensive Development
On large sites and for large integrated developments where the development may comprise retail, office, institutional, or even residential uses (for example, Oakridge Centre or Pacific Centre), it is useful to allow the developer and consultant a free hand to design the project unhampered by numerous zoning regulations. The city’s design staff critique the design, a lengthy period of negotiation follows, and, when all agree on the project’s design and form, the zoning bylaw is drafted to fit the project rather than vice versa.
In single-site comprehensive development zones, Council prescribes the design of one or more buildings. Land use is controlled not by a set of rules; rather Council prescribes a form of development. Only one development is possible, for which a bylaw is drafted to fit the project, and a public hearing is held for that development as set out in the bylaw.
The plans for the permitted building are presented and approved following a public hearing
Transportation 2040 Plan: A transportation vision for the City of Vancouver
The Transportation Plan was adopted by resolution. It does not purport to be a bylaw. It has some of the characteristics of an official development plan but was not formally adopted as such after a public hearing. It could be considered a zoning policy statement or an administrative bulletin. A downloaded link is found at
https://vancouver.ca/streets-transportation/transportation-2040.aspx
The Plan sets out land use directions linked to the road system and should be checked against any development proposal. The plan may render a rezoning or failure to consider a rezoning subject to attack if under the circumstances it could be said that Council had fettered its discretion as a result of it.
Under s. 569 of the Vancouver Charter 569(1) there is no entitlement to compensation when zoning powers are exercised. It could be argued that the Transportation Plan is really intended to be an official development plan that has not been properly enacted. Therefore a question arises whether the immunity to compensation for injurious affection applies.
A direct link to the Plan is:
https://vancouver.ca/files/cov/Transportation_2040_Plan_as_adopted_by_Council.pdf
Mayor’s Task force on Housing Affordability
The Mayor’s Task force on affordability is found on the City Web Site at http://vancouver.ca/files/cov/Final_task_force_report_brochure.pdf
The Council report adapting it is found at
http://vancouver.ca/files/cov/Staff_report_to_Council_re_task_force_report.pdf
Staff is directed to implement the plan with varying degrees of urgency. This document seems like an an official development plan but it’s not. When a zoning hearing takes place concerning lands for which rezonings are either encouraged, or discouraged, it could be held to be an illegal fetter on discretion should anyone seek to challenge it in court as such.
Density Controls
In a future post we will examine some of the features of the West End Plan.
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