Monday, 3 November 2014

FRAUD ON THE LAW - The Heritage Action Plan

When a scheme is devised to evade the law, it is referred to by the courts as a “fraud on the law.” The City operates under the Vancouver Charter and must comply with it. One reason Vancouver faces so many law suits is that the public relations people running the show do not seem to understand much less care about this  simple concept.

The VISION Vancouver Council has had years to deal with the rate at which Vancouver residential areas are changing. It is not that tough. (In 1988 Gordon Campbell’s NPA Council enraged developers by enacting 'rate of change' bylaws to slow down the demolition of apartments and renovictions of seniors.) In addressing the issue, however, the City must act within the 4 corners of its powers under the Vancouver Charter.

Which powers? In land use matters, the City generally has to hold public hearings after which it enacts  regulatory bylaws. The Council is not bound to adopt what the public wants but they have to follow requirements of procedural fairness.

Vancouver has all the powers it needs to either ignore or to deal with the rate of demolition of affordable housing, the loss of character and / or  heritage homes. It could have at any time directed its staff to prepare a bylaw applicable to all pre 1940 or for that matter post 1940 houses. It could have directed staff to prepare zoning bylaw and plan amendments to carry out any planning policy it wanted.

It must do it, however, in the manner prescribed by the law. The Courts are fussy about the way cities do these things because there is a lot at stake.

Here is how it must do it: Under s. 570 of the Vancouver Charter it can withhold the issuance of a permit for 30 days if it considers that a proposed development is at variance with a plan in the course of preparation; after that it can withhold the permit for a further 60 days and then adopt the bylaw. If, at the end of 90 days it has not enacted the bylaw then, in the interest of fairness, it has to compensate the owner for damages he or she may have suffered as a result of the delay.

Under section 588, it can specifically withhold demolition permits respecting heritage matters. (The sections are set out below.)

The Vancouver Charter thus gives the Council plenty of time to catch up on what it should have done in advance. As the Mayor says in his current TV ad there is supposed to be a plan in preparation. The City is supposed to be going somewhere with it. It may not jerk people around. It cannot freeze permits only to worry and wonder and study and ponder and then do nothing it all. 

If people are entitled to permits the City must promptly issue them unless there is a lawful basis for delay.

The VISION Council may be accused of many things. Generally, transparency is not one of them. In this case, they are very transparent. They are evading the requirements of the statute which is to regulate by bylaw – not by report or policy. Instead, they have a scheme to delay the issuance of the permits at least until after the election even though they do not have a bylaw in the course of preparation.

After the election, they will either go back to issuing demolition permits or there will be a series of very expensive law suits to compel their issuance and damage claims on the grounds that the Heritage Action Plan is a fraud on the law.

Jonathan Baker

Current to October 21, 2014

S.B.C. 1953, c. 55, s. 570

 [eff since March 18, 2013](Current Version)


SBC 1953, CHAPTER 55

 Part XXVII --
Planning and Development



Withholding of permit pending adoption of zoning by-law

570. (1) Before the adoption of a zoning by-law, an official development plan or a by-law under section 593 designating a heritage property, or of an amendment to a zoning by-law or an alteration, addition or extension to an official development plan, the Council may cause to be withheld the issuance of any development or building permit for a period of 30 days from the date of application for such permit.
(2) Where any permit is so withheld, the application therefor shall be considered by the Council within the said period of thirty days, and, if in the opinion of the Council, the development proposed in the application would be at variance or in conflict with a development plan in the course of preparation, or with an alteration, addition, or extension to an official development plan in course of preparation, or with a zoning by-law in course of preparation, or with an amendment to a zoning by-law in course of preparation, the Council may withhold the permit for a further sixty days from the expiration of the thirty-day period hereinbefore referred to, or the Council may impose such conditions on the granting of the development permit as may appear to the Council to be in the public interest.
(3) In the event that the Council does not within the said period of sixty days adopt any such plan, alteration, addition, extension, or by-law, the owners of the land in respect of which a development permit was withheld or conditions were imposed pursuant to this section shall be entitled to compensation for damages arising from the withholding of such development permit, or the imposition of such conditions. Such compensation shall be determined by arbitration pursuant to the Arbitration Act.
(4) Despite subsection (1), an owner of property for which a permit has been withheld before the adoption of a by-law designating a heritage property may agree that a permit may be withheld for a period longer than the 30 days referred to in subsection (1) and, in that case, subsection (1) continues to apply during that longer period and subsection (2) is deemed to read as if the longer period applies.

Current to October 21, 2014

S.B.C. 1953, c. 55, s. 588

 [eff since July 28, 1997](Current Version)


SBC 1953, CHAPTER 55

 Part XXVIII --
Heritage Conservation

Division (3) -- Temporary Protection


Withholding of demolition permits pending other approvals

588. (1) Without restricting section 587, the Council may, by by-law, direct or authorize a board, committee, officer or employee who issues permits for demolition to withhold approval in the following circumstances:

(a) in the case of protected heritage property, until a heritage alteration permit and any other necessary approvals have been issued with respect to alteration or redevelopment of the site;

(b) in the case of real property identified in the heritage register established under section 582, until a building permit and any other necessary approvals have been issued with respect to the alteration or redevelopment of the site.
(2) The Council may establish restrictions, limits or conditions on a duty or power under subsection (1).
(3) Nothing in this section authorizes the withholding of any approvals other than permits for demolition of heritage property.

For an excellent review of the plan see:

heritage action Plan lElizabeth Murphy

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