A recent decision resulting in a successful challenge to a City of North Vancouver zoning bylaw, Pucci v. North Vancouver (City) 2010 BCSC 743, highlights a possible ground for challenging decisions, even in the absence of having to provide actual reasons.
Pucci involved a challenge to a rezoning bylaw that would have had the effect of legalizing the suites in an unlawful fourplex. There had been a long history of non-compliance with the zoning bylaw, dating back a couple of decades. This history had included at least two temporary moratoria on enforcement and a lengthy period of time when no enforcement action had been taken. The rezoning application stirred a considerable amount of controversy in the community, and this controversy had generated a series of emails to members of Council from neighbours upset at the thought that the rezoning would legalize and essentially reward the consistently unlawful behaviour of the owners.
The rezoning was defeated on second reading following the public hearing, with several Council members making it clear in their “comments” at the time of the vote that they were troubled by the enforcement issues and the potential of being seen to “reward” an offender by adopting the bylaw.
A challenge was brought to the bylaw’s defeat on 2 grounds:
1. It was alleged that the decision to defeat the bylaw at second reading was unlawful because it had been exercised for purposes that were not ‘planning purposes’ but for the purpose of “punishing” the owners. These, according to the petitioner were improper, irrelevant or incorrect assumptions on a rezoning decision.
2. The petitioner alleged that a failure to disclose two emails that were sent to Council members and the mayor by members of the public and some email discussion between Council members on the issue was unfair and fatal to the bylaw.
On the first ground the Court rejected the petitioners argument, finding as follows:
“I conclude that council was not acting in excess of its jurisdiction by turning its attention to the impact that accepting the petitioner’s application to rezone would have on community members’ respect for and confidence in zoning decisions and bylaws. While it may be arguable that before s. 716 of the Municipal Act was amended in 1985 to remove the limiting language of s. 716(2), council’s jurisdiction was confined to planning related considerations, I accept the respondent’s argument that the amendment of the enabling legislation removing that language, when taken with the language of the Community Charter, particularly ss. 4(1) and 7, significantly broadens the scope of council’s jurisdiction to enact or decline to enact zoning bylaws. …
I conclude council’s use of its authority to defeat a rezoning application is not confined to a consideration of “valid planning purposes”, but rather is broad enough to address issues of public confidence in the integrity of the zoning process. I do not see in council’s action in the present case an attempt at enforcement, as was argued by the petitioners. In rejecting the petitioner’s application to rezone, council was not depriving them of something they would otherwise be entitled to as of right. Council was entitled to consider the impact on the community of accepting the petitioner’s application in the wake of extended non-compliance and ineffectual attempts at enforcement.”
However, the Court did quash the bylaw on the basis that it could be said that the decision was “grounded upon or activated by an improper or incorrect assumption” because some information that the Court considered relevant was not before Council. In particular, the Court decided that Council needed a more complete basis for understanding the nature of the communications between the City and the owners that would have placed the non-compliance into “context”, i.e. on the basis that the moratoria on enforcement against illegal suites in 1990 and 1995, a 2000 resolution “and the City’s subsequent forbearance from any attempts at enforcement, all contributed to a tacit endorsement of the petitioner’s ongoing non-compliance”. The Court found that these were matters of considerable relevance to the issue of what had been characterized as “rewarding bad behaviour”.
The court further stated:
“I thus conclude that, although council is not constrained from considering the petitioners’ past non-compliance, its failure to consider it in the full context of relevant evidence or information, led to an erroneous assumption about the nature and extent of what was described as the ‘bad behaviour’ of the petitioners and whether that behaviour necessitated repudiation to “provide for good government of the community”.
The Court rejected the second ground of attack against the bylaw and stated:
“I would not give effect to the petitioner’s argument in the context of this case. In my view, the material said to be missing from the public hearing binder was neither sufficiently significant nor discrete in nature from the material that was placed in the public hearing file and raised at the public meeting, to have deprived the petitioners of the ability to adequately respond or make their case.”
Points to consider:
• While Pucci indicates that a local government is not confined to considerations that constitute “proper planning purposes” when considering a rezoning, a failure to have the entire context before Council could be fatal to the decision.
• Strictly speaking, Council has a broad discretion when exercising its powers, duties and functions that have been granted generally and not for any particular purpose. However Pucci points out how easy it may be for a local government to omit relevant material that may be “part of the context” and therefore material to the decision-making process.
• For the moment, we may consider Puccias being limited to decisions that call for some kind of “fair process” such as a rezoning.
• A Court may go over the “record” that was presented to the public and the Council with a fairly careful eye to see what’s missing. Anything that is not included and that might be ‘relevant’ should be of a piece with the other material and not sufficiently unique or significant enough to impair the right of the applicant “to mount an adequate response”.
