Public Meetings and the Duty to Make Documents Available

A recent BC Supreme Court decision provides guidance on the documents municipalities must make available to the public before holding a public meeting prior to adopting a zoning bylaw.

In Vancouver Island Community Forest Action Network v. Langford (City), 2010 BCSC 1357, the Vancouver Island Community Forest Action Network (“VICFAN”) petitioned for an order quashing a rezoning bylaw. VICFAN claimed that the City’s public hearings, held prior to adopting the bylaw, were not procedurally fair because, among other reasons, the City did not make adequate disclosure of documents prior to the meeting.

The Petitioner claimed the City was obliged to make available all documents that would materially add to the public’s understanding of the rezoning, including documents not actually reviewed by council before voting on the bylaw. The documents in question were a development agreement that was still being negotiated, a traffic impact study, a storm water management plan, an archeological impact assessment, and documents relating to the construction and financing of an interchange associated with the properties being rezoned. Some of these documents were referenced in staff reports to Council.

The Petitioner argued that, in order to prepare intelligent responses at public meetings, they should not have to rely on City staff’s interpretation of extremely complex documents.

The City argued that it must only disclose those documents actually considered by council.

Justice Fenlon did not agree with either party. After reviewing the relevant case law, she found that courts use a contextual analysis to determine whether a municipality provided adequate access to documents prior to a public hearing. The starting point in the analysis is that the public should have access to the material before council, but that more or less disclosure may suffice depending on the following factors:

• Does the bylaw create a conflict of interest for the municipality?

• Does the rezoning significantly affect only one or two people, or is it a broad legislative decision?

• Do the disputed records add anything to the debate?

• Does the contemplated rezoning result in a significant change in land use from the previous zoning?

• Do the disputed records pertain to the concerns of the petitioner?

• Was the public hearing mandatory?

• Was the petitioner already aware of the contents of the records?

• Are the documents relevant to zoning, or are they relevant to site-specific development or other concerns?

• If the impugned document is an agreement, was that agreement still subject to negotiation?

After applying these factors, Justice Fenlon held that, in this case, providing the public with the documents that would be presented to the council was sufficient. She emphasized that the contemplated rezoning would not result in a significant change to the current land use, and is consistent with the City’s Official Community Plan. She noted that the public hearing was not mandatory because of its consistency with the OCP. She discussed each document at issue, and said access was not necessary either because the content of the document was available to the public, the document would not have added to the debate, or it was only relevant to other site specific development.

The analysis in Vancouver Island Community Forest Action Network v. Langford (City) provides an overview of the factors courts take into account when determining whether a municipality made the necessary documents available prior to a public meeting to discuss whether Council should adopt a zoning bylaw.