The final day of the trial between the Community Association of New Yaletown (CANY) and the City of Vancouver ended on Thursday, August 29th with Justice Mark McEwan reserving his decision. Regardless of the outcome of the trial, one of the lessons learned is that the system is broken. Many of the dealings and practices of the City of Vancouver were exposed during the course of the trial. The entire morning and part of the afternoon on Thursday was spent listening to arguments from the attorney representing Brenhill Developments. The petitioners’ lawyer responded and also made closing comments later in the afternoon, leading up to the decision to reserve judgement. It’s unclear how much time this will take.
The arguments presented during the first three days are summarized in our earlier story (Update on CANY v. CoV: Citizens’ Supreme Court challenge of City of Vancouver on “procedural fairness”, August 27, 2014). Brenhill’s attorney made a list of expenses incurred by the developer to date, with a claim that $7.7 million has been spent to date, as well, there are further contractual commitments toward the construction of a 13-storey building at 1099 Richards Street. The Yaletown Montessori ceased operations and planned to relocate to the other side of the street when the 36-storey tower is completed at 508 Helmcken. With respect to the development, Brenhill argued that “it’s so far down the road that it can’t stop” and noted that they are bound to another $24 million in expenditures. They also claimed that they knew nothing about the Freedom of Information Requests put forward by the petitioners, and also said that Brenhill did not see the City’s staff report for 508 Helmcken prior to it being released before the Public Hearing last year.
The construction of a 13-storey tower at 1099 Richards Street is in full swing; a construction crane was erected over the weekend of August 23-24. The building permit was issued at the end of May in 2014. The lawsuit was filed in mid-May. The developer plans to finish the building, move residents over from the current Jubilee House across the street, and complete a land swap with the City of Vancouver. Brenhill would then construct a high density (17.19 FSR), 36-storey tower at 508 Helmcken, at the east end of Emery Barnes Park. The current Jubilee House was built in 1985 and has 87 units of social housing. After the planned relocation, there would be no increase in the number of social housing units as the remaining 75 units at 1099 Richards Street would be full market rental. Emery Barnes Park was originally envisioned to take up the full length of the block between Helmcken and Davie; a 36-storey highrise at 508 Helmcken will not allow this plan to be realized.
The lawyer for Brenhill Developments also looked at case law and offered his interpretation of several precedents. He questioned why the petitioners didn’t file their case earlier in the process. He also questioned why didn’t the petitioners ask for further information from the City. A claim was made that it can be inferred that details of the secret land swap deal are stated in the city’s staff report (“City will contribute up to $6.6 million from the proceeds of sale of the 508 Helmcken Street site”, on Financial section from page 13). Justice Mark McEwan wondered ‘what’s the point of the plan’ if it can be amended. With respect to the Downtown Development ODP, he said, “if you’ve got a plan, you shouldn’t have to change the plan”, while Brenhill’s representative argued that there’s ambiguity in the wording of the plan. An interpretation of the fettering of discretion of Council and examples of selling zoning were brought forward.
The response and summary from CANY noted a number of issues with the Public Hearing process. The staff report released by the City claimed a total of 162 social housing units in the new 13-storey building: “The proposed 162-unit social housing project will replace and renew 87 existing units at the Jubilee House and add 75 new non-market units“ (page 14). Rezoning planner Karen Hoese also made this claim verbally many times during the Public Hearing. Examples were given on how there was support for increased social housing from the public, and that criticism of the project was tempered because some residents did not want to be against more social housing. The City’s claim of 162 social housing units was characterized as a “big bait and switch”, as later it turned out that there would be no net increase in the number of social housing units. This number would stay at 87. The additional 75 new units would be market rental. This was not what was sold to the public.
Speaking of the secret land swap deal, CANY’s attorney asked, “How can you know the terms of a deal if you don’t know there’s a deal?” Issues of procedural fairness were raised. Would Council have voted differently if the public had a chance to comment on all facets of the proposal? Was Council already fettered to deliver 365,000 square feet of space by July 29, 2013 as part of the secret deal? Is it unfair to the public hearing process to withhold documents from the public? Concern was raised about the view of the public hearing as “venting from the public”, as it underestimates the public and the quality of the arguments that could have been made.
CANY’s lawyer questioned whether the figure of $7 million spent to date by the applicant was inflated, as DCLs and some other fees would be reimbursed by the City if the decision were to be reversed. After the petition was filed in mid-May of 2014, the developer received their permits later that month, and went full speed ahead. Brenhill’s attorney noted that the construction schedule has committed a $500,000 cost per month and said they are caught between a rock and a hard place. It’s not clear how much time the court will take to render a decision.
After reviewing the timeline for this project, one that involves a complex land-swap, an open question is why didn’t Brenhill wait for all of the permits and approvals to be in place for both sites before proceeding with development? Why did they charge ahead with starting the new Jubilee House at 1099 Richards after the petition was filed? Why did the City of Vancouver try to thwart Freedom of Information requests, release partial and heavily redacted documents, and release these files late?
One of the questions that the judge had to CANY was whether they believed that the City had made a bad deal during the land swap. The answer was that this wasn’t part of their legal argument. Regardless of the legal framework for the case, it might be worth examining this question. The land-swap deal states that the City will receive $6.6 million as the difference between the two sites (the proceeds are to be put back into the new Jubilee House). The City’s real estate department calculated that 508 Helmcken is only worth $6.6 million more than the property at 1099 Richards. Is this an accurate assessment? We’ll explore this question in a future post. The smaller 1099 Richards Street site has a height limit of 165 feet as a result of a restrictive view cone (D), while the other site at 508 Helmcken is limited to 320 feet with a much higher view cone (F1.1). There are already two towers on the same block as 1099 Richards Street, which would also limit building height; no such restriction is in place at 508 Helmcken because of Emery Barnes Park. [Update: We did the detailed analysis on August 29, resulting in this post: Did City get a ‘bad deal’ in secret land swap? A look at view cones, height and density suggests the public lost $44.6 million in one deal]