RANSFORD'S THOUGHT EXPERIMENT

There is never any doubt where Sun Columnist Bob Ransford stands on development. That is why I never miss his column or what he has to say on twitter. He is always on message.

A community group tweeted that it was concerned that a developer was proposing a six story development to replace Stong's on Dunbar Street. He will effectively buy his zoning by paying a community amenity charge. The City gets only its usual fees and taxes if he develops within the zoning. Stongs is a one story market and is presently zoned for a maximum for 4 storys. The plan prepared 14 years ago kept the height at 4 storys. 

Ransford tweeted, “What if the residents of your area said 90 years ago they didn't want your single family homes?” 

Mr. Ransford thus joins the company of others in all fields of knowledge in posing a thought experiment. The most famous of all hypothetical thought experiments was that of Schrodinger's Cat, the answer to which was that the cat would simultaneously be both alive and dead if certain assumptions were made, according to quantum mechanics.  I don't remember what the question was and it doesn't matter.

SCHRODINGER'S CAT

Mr. Ransford implies by his thought experiment  that residents in detached homes owe their good fortune to the wisdom and generosity of the 90 year old generation of Vancouverites. If folks then were as greedy and selfish, as today's NIMBYs who love their neighbourhoods and if they insisted on high density living back then we would all be living in apartment blocks.

I could not come up immediately with an adequate answer on twitter within the limit of 140 characters. I promised him however that I would reply by the July 24th.  I am a bit late.

One response would be, 

• " If my aunt had balls, she'd be my uncle."

Another answer might be,  

• "I would probably live somewhere else."

The problem with "What if?" questions like the one cleverly posed by Mr. Ransford,  is that they postulate something that in fact did not happen. 

If an asteroid did not slam into the earth millions of years ago the President of the United States might today be a Tyrannosauris Rex.

 Ninety years ago Vancouver was a small town. There was lots of undeveloped land. The demand then was for mostly single family dwellings. People did not move from London, England to Vancouver to live in brown-stone townhouses or high rises. Land was cheap. They wanted spacious single family homes. Immigrants did not come to Vancouver to duplicate the conditions they’ve left behind. In Shaugnessy the CPR built mansions. In Dunbar they built small, working class single family dwellings.  The zoning which was enacted in the early 1920's allowed for considerable growth.

So in fuller answer to Mr. Ransford’s thought experiment,  the residents did not seek to ban single family dwellings because that is not who they were and not what they wanted then or now. As the social engineers at city hall proceed on their policy of neighbourhood destruction including demolitions of houses and construction of towers, the demand by families with children for larger homes with front porches and back yards - places like where columnist Pete McMartin lives, will continue in the suburbs. Vancouver with its successful dense core and its adjacent low density neighbourhoods within a bike ride from the downtown will become a hodgepodge of towers and houses just like most other U.S. Cities.  People who don't like what is happening will move to White Rock, Steveston, Surrey and anywhere else.

American planners call this "Smart Growth."

ABUNDANCE OF CAUTION

Rod Mickleburgh published an article on the “Squeaky Clean” Mayor of Vancouver in today’s Metro newspaper in which he says:


“Local reporters have become so desperate for even a grain of dirt on Mayor Squeaky Clean, they’ve tried to spark a furor, anything, over Gregor’s decision to sell his $1.9-million family home and move to a smaller place, which, get this, is close to a planned bike lane! Oh, the conflict of interest. Oh, the humanity!

I guess the mayor shouldn’t really live anywhere, because some city hall decision might affect him, like sewage flow or garbage pickup.

*** Even though city staff told him there was no problem, the mayor nevertheless resorted to that good old 14th-century word “recuse” and opted to refrain from voting on any bike path that might pass within six miles, or whatever it is, from his brand-new residence.

Why? “Out of an abundance of caution,” His Worship intoned. Just no fun at all.”

 

It was not just an abundance of caution that dictated the Mayor’s position. It was the Vancouver Charter.  It made him act on the pain of disqualification from office. My guess is that the two wheeled Mayor is not a 14th century scholar. He used the word “recused” because that is what modern lawyers say. At some point in the process he got all lawyered up.

Section 145.2 of the Vancouver Charter SBC 1953, C. 55r requires that the Mayor, if he considers he has a “direct or indirect pecuniary interest in a matter, or another matter that constitutes a conflict of interest, he must declare this and state in general terms the reason why he considers this to be the case..

Section 145.3 says that if he has a direct or indirect pecuniary interest, whether he has declared it or not, he must not:

      (a) Remain or attend at any part of a meeting during which the matter is under consideration,

      (b) Participate in any discussion of the matter at such a meeting,

      (c) Vote on a question in respect of the matter at such a meeting, or

      (d) Attempt in any way, whether before, during or after such a meeting, to influence the voting on any question in respect of the matter.

    (3) A person who contravenes this section is disqualified from holding an office described in, and for the period established by section 141(2) l [disqualification], unless the contravention was done inadvertently or because4 of an error in judgment made in good faith.

There is no problem with the Mayor selling his house. There is a problem if he enters into a deal to buy a house, the value of which will be affected  by a decision that will change the character of the main street nearby. If he does any of the things listed in s. 145.3 he may be disqualified. It does not matter if the house is in his wife’s name, or is held by him in a corporation. He will have a “direct or indirect” pecuniary interest if it is reasonable to assume that its value will be affected. The value of properties on or near Pt. Grey Road has been front and center in discussions relating to this matter.

The Mayor has not disclosed the exact address of his house. His handlers say that this is to protect his privacy. Once his address is disclosed, and the title searched, the question will be: “When did he make his offer to purchase? Did he remain in any part of a meeting in which bikes and Point Grey Road was under consideration? Did he vote on it? Did he try to influence the vote? If so, he would have already been disqualified from holding office unless it was all an accident or an error in judgment made in good faith.

Conflicts of interest are serious business. Rob Ford was removed from office by a trial judge because of an alleged conflict. A voter accused him of using his position to raise money for a charity for children that he sponsored. The Court of Appeal held that he had no pecuniary interest. The Supreme Court of Canada refused to hear a further appeal.

Mr. Mickleburgh, who co-authored with the Mayor’s close colleague, Geoff Meggs, a book on former premier Dave Barrett, seems to distinguish the case of Rob Ford from that of the Mayor on the grounds that Gregor is the “The handsomest, smilingest, bike-ridingest, urban-orchardingest chief magistrate in the city’s history while Rob Ford is a fat slob. Ford won not because or in-spite of his prettiness or lack thereof but because there was no conflict. 

The test for conflict of interest was stated in the case of Old St. Boniface. Sopinka J. said this:

*that the interest might influence the exercise of that duty. This is commonly referred to as a conflict of interest (para**It is not part of the job description that municipal councillors be personally interested in matters that come before them beyond the interest that they have in common with the other citizens in the municipality. Where such an interest is found, both at common law and by statute, a member of Council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty. This is commonly referred to as a conflict of interest (para. 55)



Once an enterprising reporter finds out where the Mayor's house is and when he bought it, we will find out whether there are any investigative journalists in town.

6 MILLION BUCKS FOR THE BIKE SHARE PROGRAM

 Vancouver City Hall is about to embark on a new adventure: the Bike Share program. An administrative report is to be presented on July 23rd. The report recommends that a company named Alta Bicycle Share, Inc. be the owner, operator, and financier of the Vancouver Public Bike Share  system.

The City will contribute  up to $6 million to Alta in potential foregone parking revenue. The report says that Legal services advised on the contract and business structure throughout this project.

I hope they release the legal opinion.

This matter is governed by Sections 203,  204 and 206  of the Vancouver Charter which deal with powers of Council relating to businesses. Section 204 deals with authorized expenditures. None of these sections seem to  authorize anything like what is proposed. That is not to say that it could not possibly be done. It just is that if it is legal, a battalion of city lawyers must have spent a lot of time getting around the,"no ones above the law" thing.  If they are grasping at straws, s. 206 of the Vancouver Charter might help:  (j) any organization deemed by the Council to be contributing to the culture, beautification, health, or welfare of the city;

Other municipalities in B.C. are governed by the Local Government Act and the Community Charter. Section 25 of the Community Charter prohibits municipal councils from providing any “grant benefit, advantage or other form of assistance to a business unless expressly authorized under this or another Act”. S. 182 of the Local Government Act, has a similar provision.

One reader has described the process as "the blind leading the sycophantic." That seems to be an apt description of everything this gang does. A June 2012 power point presentation from the Deputy Manager is found at  http://former.vancouver.ca/ctyclerk/cclerk/20120613/documents/ptec1presentation.pdf  The word "Legal" is listed under the heading "Risk Themes".  That is it. Helmets are also listed as a risk to the program. Paradoxically, a risk to the program is seen  as a trade off against the risk to the head.

It has been held that if a Council has received a legal opinion that an expenditure is unauthorized the Councillors may be personally liable.

Bloomberg Business Week supports the New York version of the  program but doubts it will make money.

see http://www.businessweek.com/articles/2013-05-30/nyc-bike-sharing-makes-sense-dot-it-probably-wont-make-money

The article notes that in France, the program is run by the French outdoor-advertising group JCDecaux, the world’s largest operator of urban bike-sharing systems. Decaux runs such programs in 66 cities worldwide, including Paris,***Decaux, though, has never made money from its bike-share programs. It operates them as part of broader contracts with city governments that allow Decaux–whose main business is outdoor advertising—to place ads on bus shelters, kiosks, and elsewhere. The money comes not from the rentals, but from the advertising. The economic model is to finance the bicycle service through urban advertising.

While on the topics of transportation, health, safety and infrastructure, did you know that the elevators in both Vancouver General Hospital and Saint Pauls Hospital don't work? A story in the Sun in the last couple of weeks said that patients were trapped in Vancouver General's elevators and the fire department had to help get them out.

In St Pauls 4 out of 8 elevators do not work. I have been told that they have had trouble getting funds to make repairs. Delays can be life threatening.

Although the City is not suppose to give assistance to business, it is given specific power to help hospitals. Section 206 of the Vancouver Charter provides:

206. (1) The Council may, by resolution passed by not less than two-thirds of all its members, provide for the making of money grants to ***(f) the Vancouver General Hospital or any other hospital which in the opinion of Council provides similar services;

We are all only young twice. If they could just get the patients in acute care who are young for the second time to ride bikes, the City would find the money.

EINSTEIN'S DEFINITION OF INSANITY

On May 23, 2012 I posted the story about how a traffic diverter was put up on 41st to prevent turns north onto Angus Drive. As intended, this caused traffic to be shunted on to Marguerite Street. The increase on Marguerite Street north of 41st was immediately apparent. The problem is that Marguerite is narrower than Angus.

One of the resident’s cars was sideswiped a couple of times. He blamed the increased traffic volume on the diverter and emailed City Hall to complain. In reply the City advised that it had already done a count and determined that there was no increase in traffic on Marguerite Street.

It was apparent to everyone that traffic had doubled when the barrier on Angus was installed. The neighbor, a crown prosecutor, called the engineering department, and said that he wanted to see the traffic survey.

He was told that --- well, er umm actually, they had never done a count but they had done studies of other areas.

To be polite, the first letter was a bald faced lie.

We all know about the massive increases in ridership of bikes and the great success of our separated lanes. Not since Paul Pot reported on the success of his population redistribution program have we heard of such success.

On July 19th, however, the Vancouver Province Newspaper's Ian Austin reported that ridership on the Burrard Street separated lane had actually declined! He wrote:

"Despite years of Mayor Gregor Robertson and his Vision Vancouver councillors peddling the merits of pedalling, ridership on the controversial Burrard Bridge separated bike lanes has declined in the past year.

Total bike trips compiled by the city for the 12 months ending April 2013 — the most recent statistics available — show that ridership is down by 16,000 compared to the previous 12-month period from May 2011 to April 2012.

On the Dunsmuir Street bike lane for the same periods, ridership fell by 30,000."

http://www.theprovince.com/travel/Bike+lane+ridership+stalled+Burrard+Bridge/8673951/story.html

So, why would the City now propose to build an expensive bike lane on Point Grey Road, which provides access for residents of Point Grey and Dunbar/ Southlands to and through the downtown, when to date there has been so little to show for it? There are three plausible explanations:

The first is that the City does not believe, let alone read its own reports. As when they shifted traffic intentionally from Angus Drive to Marguerite Street based on non-existent studies, maybe they have reason to doubt the accuracy let alone existence of their own traffic counts on the bridge.

The second is that it is all being done for the safety of bike riders. If that were the case, then they could save millions of dollars just designating one of the low volume parallel streets to the South as bike lanes. If Point Grey Road is dangerous, the simple solution is not to allow bike riders and skate boarders to use it.

The third possibility is that City Hall, collectively, is stark raving mad. Einstein's definition of insanity is doing the same thing over and over again and expecting different results. (Donizetti portrayed madness in Lucia de Lammamoor somewhat more artistically than council but with great dramatic effect.)





Mad Scene from Lucia de Lammamoor

http://www.metoperafamily.org/video/interviews/watch/lucia-di-lammermoor-mad-scene-joan-sutherland/1498077323001#play

Recently, Simon Fraser University invited Prof. John Pucher of New Jersey's Rutgers University. Pucher is the Einstein of bike experts having published numerous works on the subject. In Cycling to work in 90 large American cities: new evidence on the role of bike paths and lanes [http://policy.rutgers.edu/faculty/pucher/bikepaths.pdf

Pucher concludes that Portland has the highest number of commuters by bike (4.7%) in North America. He also says that "the percentage of college students in the city population is a significant predictor of bike commuting....we did not find a significant relationship between bike commuting and precipitation...Inclusion of additional control variables in our study revealed that cities with safer cycling, less sprawl, and higher gasoline prices have more cycling.




                                                                Prof. Pucher

When it is raining one observes, at least in Vancouver, fewer bike riders. This intuitive result means that bike riders, unlike our local politicians, have enough sense to come in out of the rain.

Based on Prof. Pucher's studies one can conclude that the City is about to prohibit 95.3% of commuters (assuming that all days in Vancouver are without precipitation) in favour of at most 4.7% of the population. (Since it seems to rain at least half of the time here, the actual statistics would be closer to 98% to 2%.)

All of this also benefits some of the properties on Point Grey Road. When the established rights of 95.3 % of the population are sacrificed for a handful of multi-millionaire waterfront property owners (soon to include the Mayor) some political party is having its palms greased.

POINT GREY ROAD: WHAT'S GOING ON?

PlaceSpeak is a program developed in Vancouver that enables people who are interested in identified community issues to participate in on-line discussions.

On June 8, 2013, former Councilor and candidate for Mayor, Peter Ladner, posted a comment in which he seemed to be saying that PlaceSpeak, which advocates nothing, should not even be providing a platform for what he considered the other side:

What's going on here? Why is Placespeak advocating for a certain outcome? Who is Placespeak representing with this (half-baked, I might say) opinion? *** I am strongly in favour of closing Pt. Grey Rd. to through commuter traffic (of which 37% is cars not even registered in Vancouver) and thereby opening it to pedestrians and cyclists from around the city who can appreciate the last link in the seawall/greenway around the entire Vancouver waterfront. This is a huge civic amenity. 4th Ave west of McDonald, which is where the biggest increase in traffic will be, has lots of space for more cars. No driver will have to drive an extra inch if PGR is closed to car traffic.

Ladner’s comments, like those coming from City Hall, are disturbing if not weird. All roads belong to the public including people driving to work. People traveling from Point A to Point B whether commuting to work, or to shop are entitled to use their roads. We all paid for them. Ladner favours restricting use by people in cars who originate from neighborhoods like UBC or Dunbar at the Western end of Point Grey. This is to be done in favour of pedestrians and cyclists, who, he notes, are capable of appreciating it. It would seem that bike riders as a class are more attuned to nature and the universe than the swine who ride in cars.




This is, “A huge civic amenity,” Ladner intones.

It is, in fact, a street through a low density very rich waterfront neighborhood. He concludes therefore that only the noble bike riders are qualified to enjoy it, while the rest of us trash can line up on 4th Avenue.

The situation on Point Grey Rd is not analogous to the street closures in the high density West End. Like South West Marine Drive, Point Grey Rd is an important connector for traffic that passes through a relatively low density area to connect with a high density one.

There are 30 or 40 times the number of people in cars (including passengers) on this street at any given time than bike riders. That doesn't matter because Mr. Ladner, who lives in the neighborhood, rides a bike and, as a locavore, grazes on locally grown foods. He will soon be joined by the Mayor who just bought a house there.

People in cars, even electric ones, are to be shunted off to 4th avenue at the whim of a gang of perennial adolescents who consider that they and they alone have the innate ability to commune with nature. Why should I listen to them when I have children of my own.

To be allowed to travel to or from downtown on this scenic drive requires that you be special.

PUBLIC INTEREST v. PRIVATE RIGHTS:

One thing politicians are paid to do is to balance interests. When the City constructs a bike lane, demolishes a viaduct, licenses a food cart, blocks off a street, holds a street party, or authorizes a next door chicken coop, to come to a decision it balances the public's interest in having the thing against the private interests of those who may be adversely affected by it.

Vancouver’s left wing party, VISION, has the advantage of being certain of its own infallibility. They make one controversial decision after another, secure in the belief that whatever they do is in the public interest by definition, because they did it. They know that to make an omelet they have to break eggs. The eggs have no say. The great do what they will and the rest suffer  what they must.

Not so fast

The Supreme Court of Canada has finally applied the brakes to the notion that the public interest always trumps private rights. In the unanimous decision of Antrim Truck Centre Ltd. v. Ontario (Transportation), the Supreme Court held that even where a thing is constructed for the public good, the government may have to pay those who are injuriously affected by it. It is treated as an expropriation even if no land has actually been taken. [Some things like property value changes brought about by zoning can not be the basis for compensation.] The court has put more balancing back in the required balancing of interests.

Antrim Trucking had a truck stop that was easily accessible by the road upon which it fronted. The Province of Ontario decided to widen the road and in doing so rerouted it. Antrim’s Truck Stop ended up far from the highway and was effectively put out of business.

Ontario has an Expropriation Act that provides that where the government builds something that it is expressly authorized to build, and the construction causes damage to another, the injured party can force the government to pay. Although there are subtle differences in our legislation including in our Transportation Act, British Columbia has the equivalent provision in s. 41 of its own Expropriation Act RSBC 1996, c. 125.  

The Court said that interests are to be balanced by considering on one hand, interferences that constitute the give and take expected of everyone and, on the other, interferences that impose a disproportionate burden on individuals. The fact that council acted in the public interest and for the public good did not end the matter.  

The question is whether the interference is greater than the individual should be expected to bear in the public interest without compensation… the focus in nuisance is on whether the interference suffered is unreasonable, not on whether the nature of the defendant’s conduct is unreasonable.

It seems then that the legal meaning of the word  “unreasonableness” has been redefined. The court does not look into whether the interference was unreasonable in light of the community standard and duration. It says now that something is unreasonable if it would be unreasonable in all the circumstances to require a person to suffer the loss without compensation.

Plaintiffs will not in every case win a claim for injurious affection to their properties. When, however, our councilors demolish the viaducts or limit access with bike lanes, it may want to think about this: If a person can show that he has suffered more than he should be expected to bear he or she may very well force the city to pay. Councilors now need to make a realistic assessment of the City's exposure in carrying out their statutory mandate.


An action would be brought in the B.C. Supreme Court under the Expropriation Act. The appraisers would battle it out. Each case will be decided on its own facts. Lawyers will argue about whether the  facts in the Antrim case are the same as, or distinguishable from the law and facts in a Vancouver case, but the door is now open to a series of  successful claims.