Higgins v. Quesnel (City) – Consistency Revisited (Again)

If anyone thought that the 2012 decision in Sevin v. Prince George (see LoGo Notebook, Fall 2012) might signal a return by the courts to greater judicial oversight on the question of consistency between an Official Community Plan and a bylaw subsequently adopted by a Board or Council, the recent decision in Higgins v. Quesnel (City), 2013 BCSC 1365, should lay that notion to rest.

The facts, briefly, are as follows. The municipality’s zoning bylaw permitted a single family dwelling in the “RS1” zone, but not a secondary suite. A property owner in the RS1 zone constructed and rented out a secondary suite. When the bylaw violation was reported to the City, the owner was given the choice of decommissioning the suite, or applying to Council for rezoning. The owner chose the latter course, and following a public hearing Council “spot zoned” the land to allow the secondary suite to remain.

Residents of the neighbourhood who had voiced their opposition at the public hearing were unhappy with this turn of events. The petitioners challenged the zoning amendment bylaw in court on the grounds that it was inconsistent with the OCP.

The petitioners’ primary argument was that the OCP spoke to goals such as maintaining the consistency of new buildings with the character of an existing neighbourhood. The lands were in an area designated as “low density single family neighbourhood”. The petitioners pointed to the fact that the OCP encouraged residential densification in commercial and multiple family zones. The petitioners also pointed to what they perceived as “flaws” in the rezoning process (including the fact that Council had legitimized a violation of the bylaw, and that the neighbourhood was overwhelmingly opposed), but the court concluded that those arguments really went to the merits of the rezoning application, not the legality of the bylaw.

The municipality pointed to the fact that the OCP expressly permitted secondary suites in single detached dwellings following a rezoning process, which the court pointed out was precisely what had happened. The court also noted that the OCP stated that single family use was the primary use for the area, but did not state this was the exclusive or only use. The zoning bylaw already allowed bed and breakfast and group home uses that could have much the same impact on a neighbourhood as a secondary suite, and the OCP explicitly contemplated uses other than single family residential in the area as well.

Sevin v. Prince George was distinguished. There the OCP expressly contemplated residential treatment facilities in urban residential zones, but made no mention of this category of use for the rural residential or agricultural zones. Sevin was therefore a case where as a matter of interpretation, the explicit mention of a particular use for one area, and its lack of mention for another, led to the conclusion, by implication, that it was not considered an appropriate use for the latter area. In Sevin, there were no other statements or policies in the OCP itself that the City could point to in order to overcome that conclusion.

At the end of the day, this decision yet again confirms that when considering the question of consistency, the OCP must be read as a whole. It is not enough to refer to one or two statements in isolation that appear to be in conflict with the bylaw. Rather, the Council’s task is to look at the various (and sometimes competing) policies that are set out in the document and to decide if the bylaw is consistent with the OCP.