THE LAW ACCORDING TO COUNCILLOR REIMER

A Vancouver City Councilor’s pronouncements on the law of zoning and public hearings gave me an idea for a game. We would produce fridge magnets with legal phrases like quasi judicial, torts, volente non fit injuria, public policy, policy making, public hearing, fettering discretion. The players would toss them at a fridge and whoever produces the most incomprehensible doctrines of law would win.

Councillor Reimer, interviewed  in the Vancouver Courier,  lectures that “when Council sits as a Council it’s a policy making body but in a public hearing its not.”

http://www.vancourier.com/news/developing-story-the-truth-about-council-and-public-hearings-1.866627
In fact, when Council sits in any properly constituted formal meeting whether at a zoning hearing or at a meeting to declare National Potato Chip Week, it is sitting as a Council. Period. Council performs many different functions. It acts in various capacities, often simultaneously. These have been characterized by the courts as legislative, administrative or quasi judicial. Decisions made in any capacity are referred to as “statutory powers of decision.”

Reimer and her VISION colleagues already know how they are going to vote. Have they ever split on any vote? Her lecture on the law is for the sole purpose of persuading those whose neighborhoods she will destroy,  that she and her colleagues have no choice. They are driven inexorably to wreck the neighborhood by a higher law.

Reimer would have you believe that if the City has a policy respecting rezoning, a Court would take a dim view of any councillor who votes  for the public and against the policy. How can that be? Because, she says, that Council must act quasi judicially.

But quasi judicially means fairly and impartially. So, according to her, to act fairly and impartially she can only vote one way.


The law may be an ass, but it is not that big an ass.

Suppose Council passed a resolution stating that it shall be a policy to always increase the density of the city in every zoning application for properties near arterials or transit. Assume the policy was adapted without any public hearing. Assume it was not enacted as a bylaw.

At the zoning hearing there are the usual, enraged protesters. Some speakers support the rezoning for various reasons. Others oppose it. “In Oakridge,” they shout, “a Maginot Line of towers will block our light, air and views”

After the hearing the vote is called.

Reimer wouldn’t want the voters to misinterpret her support for the developers as being – er, um support for the developers. What’s a gal to do?

Blame the law. The Reimer doctrine as set out in the Courier is as follows:

“We’re making a decision on land use that is based on existing policy. In fact it would likely to be tested poorly in the courts if we tried to make policy as we go in a public hearing,” she said. “The challenge is if you’re a member of the public, you come in and see the same 11 people that you see making policy and you assume we can do everything in a public hearing that we can do in a council meeting, which is not the case.”

She has the law backwards and upside down.

The Council must not unlawfully fetter its discretion.

In the case of

Hospital Employees’ Union, Local 180 v. Peace Arch District Hospital (1989), 35 B.C.L.R. (2d) 64 at 30-31 (C.A.) it was held:

“A body entrusted with a discretion must not disable itself from exercising its discretion in individual cases by adopting a fixed rule of policy. In modern administrative law this issue arises most often when an administrative agency of its own volition seeks to structure its discretion by formulating and following policy statements, guidelines, and the like…

An authority can fail to give its mind to a case, and thus fail to exercise its discretion lawfully, by blindly following a policy laid down in advance. It is a fundamental rule for the exercise of discretionary power that discretion must be brought to bear on every case: each one must be considered on its own merits and decided as the public interest requires at the time.”

The law as set out by the Court of Appeal in Save Richmond Farmland Society v. Richmond (Township) (B.C.C.A.)(Affd. SCC)

"There must be a degree of open-mindedness; there must be a capacity to be influenced by persuasion. But provided that the alderman is not acting improperly in the sense of having been procured to vote in a certain way, (of which there is no suggestion whatsoever in this case,) and providing that he retains the capacity to be influenced by a yet unheard and perhaps unexpected argument, he or she will not be disqualified from participation in this particular process of zoning bylaw consideration by attitudinal views of the kind that are inherent in the political nature of our form of municipal government, and which may well have been exposed by the cut and thrust of that political process."

After a zoning hearing council makes a legislative decision to rezone. It must also act quasi judicially and conduct the hearing fairly and impartially. The council has the broadest discretion in making its decision. It must not completely fetter its discretion by following a pre-existing policy that has not been adapted as law.

Reimer has every right to vote any way she wants following the public hearing. That's politics.  

The voters have every right to throw her out of office at the next election. So's that.

VANCOUVERISM - THE ART OF SPIN

The term, Vancouverism, has acquired a new meaning, namely- the art of being disingenuous, deceptive and manipulative at the municipal level.

Mayor Sam Sullivan made an enormous contribution to the deceptive arts with his copyrighted phrase “Eco-density,” an expression that replaced the clumsy “block busting by incompatible developments.” This is spun as Smart Growth in the United States.

Eco-Density was so unpopular that Sullivan failed to get his party’s nomination for a second term. The voters replaced him with Mayor Robertson and his VISION party who, once elected, adopted Eco-Density in its entirety. To avoid the potentially sensitive point that he had deceived the voters, his party, VISION renamed Eco density. It became the Greenest City Initiative.

There is more than one PhD thesis to be developed on Vancouverism as the Art of Spin. What do you do if you have a policy to eliminate homelessness if after several years homelessness seems to increase?

You suggest that those afflicted by homelessness are mentally ill and demand that higher levels of government address the problem of mental illness. Changing the name solves the problem and shifts the costs to another pocket.

How do you solve the problems associated with life in the most overpriced city in the world? You subsidize developers by giving them increased density (see Eco-density or Greenest City), exempt them from usual development charges, and allow them to build rental housing at high market rates that few people can afford? You call the product “Affordable Housing” of course. As a bonus, you insist that you have reduced everyone’s carbon footprint.

How do you spin a land use system that confers enormous discretionary powers on bureaucrats with “guidelines” that can be changed outside of the required public hearing process on an ad-hoc basis without planning?

Call it a Plan, as in West End Plan.

What do you call a scheme to allow large property owners and speculators to reduce payment of taxes on vacant land? Community Gardens of course.

What do you call citywide protests against all of the above?

Community Participation is as good as anything!

How do you describe the protesters?  They are the Disengaged. 

What do you do about disengaged people? Let them eat cake in restaurants with special,  long community tables.

And, speaking of the Devil:

 Retweeted 4 times

Kevin Quinlan ‏@KQ_VanCity  Feb 22

climate action, food security, energy efficiency: proud of work @MayorGregor + City have done @greenestcity http://ow.ly/tTqeR  #vanpoli

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MUNICIPAL CAMPAIGN FINANCE REFORM

The Province is nearing its deadline for receiving submissions on municipal campaign finance reform. 

Municipal legislation in BC distinguishes between a councilor’s conflict of pecuniary interest and his or her conflict of political interests. A conflict of political interest arises when a politician votes for a matter that directly concerns a constituent who has funded his or her campaign. As the law stands, it is not treated as a conflict at all if the contribution has been disclosed. 

 A conflict of pecuniary interest (where a councilor has a direct or indirect financial interest in a matter) can result in an immediate disqualification from public office. 

Conflicts of political interests are treated as the norm. It is not an offense for a councilor to vote on a matter that involves a significant contributor to a politician’s campaign as long as the donation to the party or individual has been disclosed.

The law engages the legal fiction that an incumbent politician does not have a direct or indirect pecuniary economic interest in remaining in office. This enables a form of systemic corruption. It has become wide spread and corrosive on every continent and all countries are trying to deal with it one way or another.

Harvard Law Professor, Lawrence Lessig, in his recent book, “Republic Lost, how money corrupts Congress – and a plan to stop it" describes systemic it this way:

“This corruption has two elements, each of which feeds the other. The first element is bad governance, which simply means that our government doesn't track the expressed will of the people, whether on the left or on the right. Instead, the government tracks a different interest, one not directly affected by votes or voters. Democracy on this account seems to be a show or a ruse; power rests elsewhere. The second element is lost trust: when democracy seems a charade, we lose faith in its process. That doesn't matter to some of us – we will vote and participate regardless. But to more rational souls, the charade is a signal: spend your time elsewhere, because this game is not for real. Participation thus declines, especially among the sensible middle. Policy gets driven by the extremists at both ends.”

Lessig’s observation perfectly describes the situation at the municipal level in Vancouver and much of BC today. Two major parties are primarily funded by large donors. Voter turnout has fallen precipitously.

Vancouver’s at large system of elections doesn't help. Each candidate represents the entire population of the City. They can only become known if they belong to a well-funded party. Reform of any kind is promoted primarily by one group of candidates- the unelected. It is opposed by those who made it to office under whatever system exists. The Electors' Action Movement (TEAM) in the 1970s promised the Ward System when it was out of office. So did COPE. Once they were elected however, their reformist zeal quickly dissipated.

The Provincial Government, correctly in my view, insists that the laws dealing with election reform must be province wide.  They should not be left to each local government. To accomplish reform truly requires the wisdom of Solomon because it involves compromises of fundamental principles that are central to democracy.

In any big city that has an at large system where candidates can win only if they belong to a well funded political party, the electorate’s choice is filtered and thereby restricted by the party. 

If you have faith in democracy, the filter should be removed. One way of doing that is by limiting the maximum amount that can be donated by any one individual, corporation or union.

That solution is deceptively easy.  The obvious way to evade the dollar limit is by 3rd party advertising. So we also have to limit advertisements and public comments, at least around election time. But this involves an even more difficult trade off. Free speech is a fundamental right. Democracy requires that people be free to advocate what they choose particularly at election time. It is drastically abridged by limiting and punishing 3rd party advocates.

Another approach is not to impose limitations on donations at all but to treat as a conflict of interest  voting on a matter concerning the interests of donors who contribute more than some predetermined amount. If a developer contributes, for example, less than $1500 to a  political party or individual, and then later in the year has a matter before council, as long as the councilor has disclosed it he can vote. If the donation, however, is above the prescribed limit then he must not participate in a debate or vote.

One problem with that solution, however, is that it conflicts with Newton’s third law of politics: For every ethical action there is an equal and opposite chance for evasion.

It is not just the elected politicians who are vulnerable to corruption. Dealing with the problems relating to staff is just as difficult if not more so.   Planners and engineers can look forward to continuing their careers as consultants. Most of their outside the hall job offerings do not come from community groups. 

 Previous municipal experience looks very good on a resume’ when applying to a large firm of architects or engineers or as a consultant to a government. Even being fired by the City can be used as an effective promotional tool. The Provincial Program on electoral reform does not deal with maintaining the integrity of the bureaucracy but it is every bit as important.

The Supreme Court of Canada in a series of decisions has favoured local governments over citizens whenever there are ambiguities in legislation. The legislature has followed suit. The Local Government Act and Vancouver Charter require that bylaws be very broadly construed in favour of the city. The fact that municipal bylaws are hopelessly ambiguous is an open invitation to corruption. If neither a neighbor or a developer knows what a bylaw is trying to say then the matter is left to a planner's or engineer's discretion. The Province should delete the presumption in favour of the government. 

The proposed West End Plan as well as the Vancouver Budget are open invitations to pay offs. Therefore, to the extent that electoral reform takes aim at corruption, the amount of discretion that can be delegated to officials should be curtailed. That is what the rule of law is all about.

I would favour the creation of an independent municipal tribunal that deals with issues of ethics. Whenever one of these questions arises as to whether a proposed vote or other action complies with the conflict of interest regulations, a Councilor could request a prompt decision as to whether he may vote or participate in the matter or whether he is in a conflict and should step down. If the City of Vancouver can afford a flock of twitterers in its PR department, it could pay for a one or two person ethics commissioner who does not report to the manager and who would provide decisions in writing. 

AFFORDABLE FABLES FOR OUR TIMES

James Thurber recounted the  fable of the Little Girl and the Wolf.  One afternoon a  big wolf waited in the forest for a little girl to come along carrying a basket of food for her grandmother.   When the little girl arrived at her grandmother's cottage, she saw that there was somebody in Grannies' bed with a nightcap and nightgown on.  Not taken in by the disguise, without a word, the little girl pulled out a Colt 45 and blew the Wolf’s head off.  

Moral:  It is not so easy to fool little girls  nowadays as it used to be.

Time passed. Wolves were driven out of town, forests were clear cut and affordable housing became  extinct.   

One day the Council asked the City Manager to restore the dwindled stock of affordable housing. 

The Manager said, "Sure. How affordable would you like it to be?"

Without blinking the Councillors  explained, “You know, Whatever.”

The Manager invited the developers to a costume ball and said, "The Council wants affordable rental housing.  Can you do this?"  

The Developers snapped back, “It Depends on a variety of factors including finishing, size,  fixtures, landscaping and such.”  

The Manager said, “Whatever?” 

The Developers explained, "Exactly."

A year later 1,917 rental units were completed.   

When a little girl in the West End  learned  that the rents were way higher than  current market rates,  she sued. She claimed that  "They had no right to delegate legislative powers to the Manager and the standards are inadequate. They have taken my money, handed it over to developers for these high priced chicken coups?"

Unlike the hapless wolf in the fable, the councilors, anticipated this reaction. "It is not about law," they opined. "It is all about spin."  They hired a battalion of professional  twitter persons.  “Tweet Like the wind,” exhorted the Mayor! 

And so they did. Here are the twinkling tweets the twitterers tweeted:

 Van Mayor's Office ‏@VanMayorsOffice29 Dec

The @CityofVancouver is now 1,917 units above its target for new rental housing by the end of 2014: http://ow.ly/s84bL  #vanpoli #bcpoli

1.    Van Mayor's Office ‏@VanMayorsOffice29 Dec “Making housing more affordable means residents & families can live closer to where they work" -@MayorGregor http://ow.ly/s845u  #vanpoli

2.    Kevin Quinlan ‏@KQ_VanCity26 Dec  Housing affordability, oil tankers, transit referendum: @MayorGregor year-end Q + A with @SunCivicLee http://ow.ly/29vohv  #vanpoli

3.    neal lamontagne ‏@nlamontagne26 Dec In cities working to enable new cultures of walking/bicycling, police are often slowest to change. http://mobile.nytimes.com/2013/12/26/us/in-a-car-culture-clash-its-los-angeles-police-vs-pedestrians.html … #vanpoli #walkLA

Moral:  It remains to be seen whether it is any harder to fool little girls today than it was when James Thurber composed his fable. Whatever.

IT'S GETTING TO SOUND A LOT LIKE CHRISTMAS

The issue of how large a gift may appropriately be given to a politician by a developer periodically makes the news.

Small gifts can be as politically damaging as large ones. Mayor Jack Volrich accepted a Seiko watch from Japanese officials while he and other councilors were visiting Japan.  It was a ceremonial visit and gift. There was nothing wrong with it.  Besides,  Mayor Volrich did more than any local politician to bring  Expo 86 to Vancouver.

Did they call him "Expo Jack" after that? 

No. He was remembered as Seiko Jack. He and the NPA lost the next election to Mike Harcourt.

Relieving taxpayers of their burdens

Councilor Tim Stevenson has performed a splendid service by his willingness to test how far one can go in accepting gifts, even for the good cause of taking on homophobia in Russia. According to the CBC, a recent Council motion includes a mandate for Stevenson to travel to Russia and lobby the IOC to include gay, lesbian, bisexual and transgender rights in the Olympic charter and ensure host cities have a pride house.

The CBC reported as follows:

( http://tinyurl.com/ksjl2vr )

Funding for the trip is expected to come from private donations, including $50,000 that has already been donated by condo marketer Bob Rennie and hotelier Peter Wall, two major players in Vancouver. Critics have raised concerns the donations could influence future development decisions at city hall, but Mayor Robertson disagrees.

"The key thing [is] if people are willing to put money forward for initiatives, that's fantastic," said Robertson. "If it takes the burden away from taxpayers then that's good for all of us."

The initiative in this case - sending a councilor to the Olympics,  is different from giving money for  the Orpheum Theatre or for a park. The difference is recognized by the law.


The Vancouver Charter

Under Section 196 of the Vancouver Charter, the duties of office  include travel by a Councilor to represent the City abroad. He is entitled to claim expenses. Council has implemented this power under the Mayor and Council Members' Expenses Bylaw No. 8904.

Vancouver Charter s. 141 sets out the grounds upon which a councilor can be removed from office. One of the grounds is a violation of Vancouver Charter s. 145.7. That section states

“(1) a Council member must not, directly or indirectly, accept a fee, gift or personal benefit that is connected with the member's performance of the duties of office.

(2) Subsection 1 does not apply to (a) a gift or personal benefit that is received as an incident of the protocol or social obligations that normally accompany the responsibilities of office,

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

Thus, travelling to the Olympics would be connected to Councilor Stevenson’s performance of his duties of office. He would not be on a frolic of his own. As a result, he could fall victim to another current trend: To sue councilors and the City.

But there is more to it. A separate section, s 145.8 requires disclosure of the receipt of gifts that are incidents of protocol. If the gift is connected with the member’s performance of his duties, the section would not apply and would not be a defence.

The Petitioner would argue that interpreting sections 145.7 and 145.8 together, if a councilor, even indirectly, accepts a gift of an expense paid trip to Sochi; he has contravened the section and would be disqualified from holding office.

Councilor Stevenson has not concealed anything. In fact he indicated that if the Russians sent him to some gulag or other, he hoped his friends would send him Purdy’s chocolates. "I like the dark ones," he added.

http://www.vancourier.com/gay-councillor-to-take-vancouver-mayor-s-place-in-sochi-1.757259

The process for removing a councilor from office under these circumstances is by a simple application to a court for a declaration of disqualification. It must be brought within 45 days by 10 electors  under s. 142 of the Vancouver Charter.

Regardless of the law,  can it ever be right for a councilor to accept a substantial gift from a developer, whether or not the gift relates to the performance of his or her duties? A councilor's duties, in addition to visiting Russia and correcting that country's moral shortcomings, also include regulating developers. 

Even if the councilor agreed not to vote on any project that directly or indirectly affected the most well intentioned developer, the Councilor's  job is to vote on development regulations- not to abstain on the grounds of conflict of interest or perceived bias.

THE STRANGEST REPORT

Frances Bula recently called the Affordable Housing report “the Strangest Report  (approved Tuesday) I’ve seen in a while.”

She is right. The report, to coin a phrase, uses statistics as a drunk uses a lamp-post--- for support rather than illumination.

Ms. Bula noted that the rents — $1,440 for a studio and up to $2,500 for a three-bedroom — seemed not anywhere near affordable, which the city’s persistent critics have noted. But the numbers in the report on actual completed projects indicate that, of the projects built or planned so far, the actual rents are way above the proposed rents.

Here is what happened

The West End Neighbours  sued to set aside two bylaws, one of which they said illegally delegated the power to the City Manager to create affordable housing. She set up quite a system. The Developer would submit an application for a building and estimate the proposed monthly rents. For example, the developer estimated that the proposed average rents for the 400 ft2 units at 1142 Granville Street would be approximately $960 a month. The Manager considered these rents consistent with the Short Term Incentives for Rental Housing (STIR) program, and the program’s successor, Secured Market Rental Housing Policy) Rental 100.

The May 3, 2010 Staff report,  on the apparent assumption that the rents would be as proposed, states at pg. 7:

"The developer estimates that the units will rent on average for $960 a month. Given the finishing, unit size and design features in this location, staff find the rent levels proposed for this project to be consistent with STIR program and the City Manager has determined that there is a measure of affordability for this housing".

Some measure!  Some affordability!

Since the average rent downtown for a bachelor unit is about $1,047 per month, the rent may appear to have some "measure of affordability.” There was, however, a Catch 22. Once the project was completed, the rents for furnished 400 ft2 units were actually $1,495 per month.

The link below shows shows the hugely subsidized tiny unit in all its sartorial splendour.

http://rentitfurnished.com/downtown-vancouver-furnished-apartment-rental-on-granville-street/

Somehow or other the City Manager’s office failed to require the developer to stick with the proposed rents. This was simply not regulated. So, after getting a generous density bonus and having his or her Development Costs Charges and Amenity Contributions waived, he would rent the units for whatever he wanted. “Affordability” was ultimately not a requirement or even a factor.

The Councilors decided to set standards for affordability themselves and take away the City Manager's discretion thus agreeing to one of the orders sought in WEN's judicial review application. 

They seemed to think that the whole Judicial Review Application was a mere technicality. They hoped that Council  could take whatever developments the the Manager had approved, apply her standards and enact all of it as a bylaw. They expected nothing would change. 

Staff therefore came up with numbers that they thought would confirm the wisdom of the Manager’s determination that the rent was affordable.

When they produced their report, they discovered that they screwed up. It is not clear from their public comments that they really understand to this day what they did. The actual rents were not as proposed and approved by the City Manager as being affordable.   That is why the City has now set the maximum average rents at the present exorbitant figures. They have to set them high to legitimize previous approvals and current in stream proposals.

The shocking fact is that the City has been approving these developments, from the start without any regard to ultimate affordability. As WEN  (West End Neighbours) suspected, Council rezoned the properties, provided density bonuses and waived applicable levies on the theory that by so doing they were lowering the cost of housing. They did it for nothing. The City and tax payers are out of pocket. 

There are many morals to the story, one of which is, "Never believe your own lies." Another is that the spoils system of government with a politicized bureaucracy may be American as apple pie but can produce absolutely terrible government. On this point have a look at today's Vancouver Province Newspaper explaining why a civil service must be apolitical. 

   http://tinyurl.com/m6tmnzs

Don’t blame the developers. Presumably acting fully within their contractual rights, they saw to it that fools and our money were soon parted. It was the Council, not the developers,  that broke the law when it improperly delegated their responsibility to the Manager, contrary to the express requirements of the Vancouver Charter.

When Councilor Louie, the Chairman of the Finance Committee, was interviewed by Frances Bula, he noted that he found it difficult to explain.

I bet he did.

THE END OF MEANING

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master — that's all.'         Lewis Carol, Alice in Wonderland

Vancouver City Council had given the City Manager the extraordinary power to make the word unaffordable mean affordable. Depending on her feelings on the subject, she could in effect bypass zoning bylaws and subsidize developers to develop  rental housing at or above market rates.

The system was straight out of Alice in Wonderland, so an Association of West End Neighbours sued City Hall.  The Judicial Review application did not have to go to court. Council could no longer hide behind the Manager’s skirts. It revealed the standards that they thought should be applied. 

The scheme was even crazier than when Councilor Jang announced that everyone knows that 'affordable means - what else- affordable.' As it turns out affordable means anything but.

“Developers charging a rental of $1440 to $2743 for market housing deserve a subsidy? On what planet is that affordable ? ”

Depending on the perversity of one's sense of humour, it gets funnier.

Councilor Raymond Louie is quoted in the Globe and Mail by Francis Bula.  He told her today that the units being created through the incentive program, despite the fact that they are initially expensive,  will become more affordable as they age. 

On that theory, the Taj Mahal and the Palace at Versailles could be justified as long term affordable housing projects. In fact what Marie Antoinette actually said before King Louie's and her own beheading was, " Let them live in Versailles and eat cake."

Stay tuned.