The recent BC Supreme Court decision Society of Fort Langley Residents for Sustainable Development v. Langley (Township), 2013 BCSC 2273 (“Langley”), addresses the issue of how the word “density” is to be interpreted in the land use provisions of the Local Government Act.
In Langley, a local residents association challenged the issuance of a Heritage Alteration Permit that allowed the applicant to construct a building that would otherwise not have been permitted under the applicable zoning provisions. The zoning bylaw provided a maximum lot coverage of 60 percent as well as a two story building limit for the zone in which the property was located. The applicant wanted to construct a three story building that covered 67 percent of the lot. The property was in a heritage conservation area.
A heritage alteration permit issued under Part 27 of the LGA may vary a provision in a zoning bylaw, but it may not vary a provision relating “the use or density of use” of the property.
Langley authorized a variance that permitted the larger lot coverage and a three storey building. The Residents Association challenged the issuance of the permit on a number of grounds, including that by permitting increased floor coverage and the number of floors, the permit varied the density of use on the property.
The court agreed with the Residents Association, relying on the Oxford English Dictionary definition of density as meaning “the quantity of people or things in a given area or space”, and found that allowing both an increase in lot coverage and an increase in the number of floors constituted a variance of the density of use. The court states that it is common sense that an increase in floor plan and the number of floors in a building is an increase in density.
In making its decision, the court noted that the LGA does not define the term “density of use”. In fact, the LGA does contain a definition of “density”, albeit a rather circular and unhelpful one. “Density” is defined in section 872 as meaning:
(a) the density of use of the land, parcel or area, or
(b) the density of use of any buildings and other structures located on the land or parcel, or in the area;
This definition does not get one much further in interpreting the meaning of density under the LGA. Section 903 of the LGA provides some additional guidance. Section 903 permits local governments, among other things, to regulate within a zone:
- the density of the use of land, buildings and structures(s. 903(1)(c)(ii)); and
- the siting, size and dimensions of buildings and uses permitted on land (s. 903(1)(c)(iii)).
By creating a distinction between “density” on the one hand and the “siting, size and dimensions” of buildings on the other, the LGA provides two distinct subjects that a local government can regulate within a zone. For example, a zoning bylaw provision that limited the floor area ratio of development on a parcel would generally be viewed as a regulation of “density”, and not eligible for variance, while a maximum limit on building height would arguably be a “size” regulation that could be varied, at least in some circumstances.
Apart from those more obvious examples, the difficulty is knowing where to draw the line between what might be considered “density”, and the “siting, size and dimensions” of a building, particularly where a proposed variance to a “size” regulation would result in development on a scale that the zoning bylaw does not seem to support.
While the court in Langley did not refer to the distinction between “density” and “siting, size and dimensions” regulations under section 903, the court’s reasoning does suggest that some caution should be used in relying on the distinction when deciding whether a variance is permissible. As these are statutory terms, a local government cannot simply decide for itself which of its zoning regulations should be considered as a measure of “density”, or “size”. As a result, the decision brings some clarity as to what a court will consider to be a variance in density.