It is a problem often shared by local governments: letters to the editor start pouring into the local newspaper from citizens concerned about a new condo development. The complaints are commonplace, but usually revolve around the proposed new building somehow not fitting into the community. The trouble is that the condo developer has met the requirements of all of the applicable bylaws. No variances are required, or only minor ones are at stake. The local government wishes to be accountable to its constituents, but senses its hands are tied. In situations where a proposed real-estate project requires a development permit by virtue of an official community plan (“OCP”), it can be tempting for the local government to attempt to decline the development permit for the very reasons that have pitted the community against the project.
While the local government believes that it is acting in good faith in the interest of the community by refusing the development permit, the Supreme Court of British Columbia has now confirmed that local governments have no authority to decline development permits for projects which conform to the guidelines of an OCP if the refusal is based on consideration of criteria not contained in the OCP. By way of background, section 919.1 of the Local Government Act provides local governments with the opportunity to designate development permit areas in their OCP for one or more purposes enumerated in that section.
In the recent case which has shed light on the matter, Yearsley v. White Rock (City) 2009 BCSC 719, Yearsley sought a court declaration that White Rock’s refusal to issue a development permit for his property was unlawful and of no force and effect. Consequently, he submitted, the Court could order White Rock to issue the permit to him or specify what changes he had to make so that a permit would be granted. Yearsley’s position was that White Rock had exceeded its jurisdiction by acting on improper and extraneous considerations in refusing to issue the development permit. White Rock argued in response that the decision was lawful and reasonable in accordance with its bylaws.
The property in question was occupied by a two-storey commercial building, and Yearsley proposed to replace it with a six-storey mixed commercial/residential building in an area that was subject to development permit requirements. Building height was governed by White Rock’s zoning bylaw and White Rock’s official community plan guidelines for the development permit area made no references to height. There were no other factors set out in the planning staff’s report to Council to indicate the application in any way contravened any other provision, except for minor variances that were not at issue.
White Rock decided to hold public meetings on the development permit application for the purpose of “reviewing the form and character” of the proposed building, and did so over two days. At these meetings, the public voiced concerns primarily regarding the height of the proposed building and issues surrounding the disruption of views in the neighborhood. On the second day of these hearings, the agenda for the meeting identified the motion: “that staff be authorized to issue Development Permit No. 292”. However, Council declined to issue the permit and they gave their reasons for doing so at a subsequent Council meeting. Some of the reasons given were:
Because people who spoke at the meeting were concerned that the design did not fit the form or character of the neighborhood”, and “because an overwhelming amount of people came to Council expressing their concern and outrage about the potential character and form of the building eroding the neighborhood.
The issues the court had before it were: (1) whether White Rock exceeded its jurisdiction by taking into account irrelevant or extraneous criteria outside of the bylaws and the OCP guidelines in refusing to issue the development permit; (2) whether White Rock acted reasonably in refusing to issue the permit; and (3) if White Rock acted outside its jurisdiction, what was the appropriate remedy to be granted to Yearsley.
Madam Justice Dillon held that the standard to be applied in matters related to questions of jurisdiction (arising, in this case, from the refusal to issue a development permit) was correctness. She held that reliance on public opinion was not a relevant consideration, as it was not linked to legitimate factors within the zoning bylaw or the OCP. The court also found that the true reasons Council acted to refuse the application where unspecified, vague-stated concerns that were not referenced in the OCP, including implied concerns about height. Accordingly, the failure to give adequate reasons to inform Yearsley how to comply suggested that councillors could not give reasons because it was known that height was not a proper consideration within the context of the application.
The overall conclusion of the court was that White Rock took into consideration matters that were not within the OCP guidelines, and supported public opposition to the height of the proposed development, even though the development permit application met all of the zoning and other requirements. The court concluded that, in doing so, Council acted in excess of its jurisdiction, and its decision to refuse the permit must be quashed. The court declared that the Council resolution refusing to grant the development permit was unlawful and of no force and effect. As for the appropriate remedy, White Rock was ordered to issue the development permit to Yearsley. This was due to the fact that the staff report to Council on the matter indicated that the proposed development complied with all the bylaws and OCP guidelines. Furthermore, White Rock had not shown that there was a legitimate problem with the application that required further consideration from council.
It is essential that local governments, which have created development permit areas in their OCP pursuant to the Local Government Act, take care to issue and decline development permits according to the guidelines they have enacted in their OCP. Consideration of extraneous criteria to decline development permits, such as public sentiment, will not be tolerated by the Court. Not only is the Court willing to order the local government to issue the development permit, it will order costs against the local government. Although the issue has not been raised in case law to date, it would not be surprising for a developer to seek special costs against a local government that declines a development permit for extraneous reasons.