Shockwaves from Supreme Court decision on New Yaletown public hearing: McMillan law firm bulletin reveals new realization in government and development industry?

508 Helmcken, artist's rendering

Brenhills’s proposed tower at 508 Helmcken, artist’s rendering

“Developers and their lenders must now be aware of the risk that their development, even if it is under construction and being sold, could be stopped in its tracks in the event that any public hearing for rezoning or development permits have not been carried out adequately by the municipality.”
(Damon Chisholm, Amanda Magee of law firm McMillan, Feb 2015)

Certain Vancouver city councillors and senior staff (including City Manager Penny Ballem and chief planner, Brian Jackson) have been attempting to downplay the significance of the January 27 ruling by Justice McEwan in the CANY v. City of Vancouver lawsuit. See bottom of this article for some quotations as examples.

Meanwhile, legal experts are singing a very different tune. Searching the web, we found an analysis published online by the major law firm McMillan. The “Real Estate Bulletin” article is jointly written by Damon Chisholm in the firm’s Vancouver office and a member of its Commercial Real Estate and Finance Services Groups, and by student-at-law Amanda Magee. This is essential reading for anyone interested in this case and its implications.

Excerpts:

“The result of this decision on future public hearings and development permit processes is that the City:

  • must provide intelligible and understandable information to the public to allow for scrutiny and consideration;
  • must provide the public with a fair opportunity to communicate with City Council about the advantages and disadvantages of the proposal; and
  • must scrupulously consider the input from the public and cannot arrive at a pre-ordained conclusion.”

“… While Brenhill has incurred an estimated $7 million in expenses with respect to the construction of the 1099 project the situation could have been worse had Brenhill also began marketing the development of the 508 project to the public under B.C.’s Real Estate Development Marketing Act (“REDMA”). 

Pursuant to REDMA a developer must file a new disclosure statement for their project when there has been a material change. The quashing of a development permit would constitute such a material change which would give purchasers under the original disclosure statement the right to rescind their purchases.”

Read the full text here: http://www.mcmillan.ca/Recent-BC-Decision-Quashes-Rezoning-and-Land-Swap

*Note that even these experts seem to have the numbers wrong, perhaps misled by City figures. Contrary to the “162 units of social housing” to be built at 1099 Richards, as is being stated by City officials here and there, the 162-unit project would include 87 units of “social housing” and 75 units of “low-end market-rental housing.”

**********

CityHallWatch comment: Perhaps it is a shock that governments and industry in Canada need to be reminded that rezonings, public hearings, and development permits must be carried out “adequately”? 

Note the comment about REDMA. CityHallWatch is aware of numerous rezonings approved by Vancouver City Hall, now being marketed (and in fact also involved in actual or potential legal challenges), which, if scrutinized closely, could be in trouble. While very uncomfortable for the industry, this is a situation has been created entirely by our civil servants and elected officials. Having created and enabled this situation, and even now so seriously underplaying the seriousness of their errors, do they deserve to keep their jobs?

Meanwhile what does it mean for a public hearing to be conducted “adequately.” It seems certain city officials use their own definitions. Do they choose to use the strictest interpretation of the letter of the law? Or the broadest interpretation, in good faith and in the public interest? Perhaps that is where some public debate will focus in the coming weeks.

Since early on, we have see this New Yaletown / City of Vancouver / Brenhill legal action initiated by citizens as a test of the very integrity of City Hall. We still stand by that conviction. And Vancouver City Hall is not looking that good so far. We also note that the behaviour of one municipal government in this rezoning for Brenhill does not appear to be an isolated case in one neighbourhood, in the City of Vancouver, and even in the Metro Vancouver region. The revelations here appear to be symptomatic of systemic patterns of behaviour of local governments and the entire development industry in the region. Many of the same players are active in multiple municipalities. (For a fresh new example, see Highrise Approved Amid Controversy, by North Van City Voices, 20-Feb-2015.)

Major changes are needed in the entire culture of the development industry and municipal governments — and this probably needs to spread as far to the roots as the planning schools that train planners, and professional associations that are supposed to protect profession standards and integrity. What are they doing wrong? Why are they letting this stuff happen? For now, it has been left up to citizens to continue pushing, and citizens must not stop until fundamental improvements are achieved. Meanwhile, the Community Association of New Yaletown (www.newyaletown.ca) needs further donations to fight an appeal by the City of Vancouver. Our own municipal government is exploiting taxpayers’ money to fight citizens and in the defense of a private firm named Brenhill, its own balance sheet and legal war chest apparently enriched by as much as $50 million from this secret land swap.

Below are excerpts of media quotes by City officials showing how they are downplaying the court judgment.

***************

Vancouver appeals court ruling on Yaletown land swap (Sam Cooper, The Province, 19-Feb-2015):
http://www.theprovince.com/Vancouver+appeals+court+ruling+Yaletown+land+swap/10827481/story.html

Excerpts: Vancouver’s chief planner Brian Jackson has said the judge’s ruling was narrow — not a shot at the city’s development process — and it only asked the city to provide more clarity and notice to residents around rezoning… City Manager Penny Ballem said Thursday that municipalities across Canada are concerned by McEwan’s ruling, and the city “had to appeal this.” “What the ruling did is created uncertainty about how the development process goes forward, and every municipality in the country is looking at this and worrying,” Ballem said.

Court ruling shows need for better public input process in new developments (Jeff Lee, Vancouver Sun, 13-Feb-2015)
http://www.theprovince.com/business/There+goes+neighbourhood+planning/10813225/story.html

Brian Jackson, the city’s director of planning, doesn’t see it that way. The Brenhill decision was very narrow in its findings and reminds the city that it has to give the public more information and more widely notify residents of a public hearing, he said. He doesn’t connect it to public confidence problems that have emerged elsewhere. “We heard the judge say no, more information should be provided to the public so we have to respond to that particular issue,” Jackson said.

*****************

City of Vancouver will appeal court case that quashed Yaletown development
(Emily Jackson, Metro News Vancouver, 19-Feb-2015)
http://metronews.ca/news/vancouver/1292543/city-of-vancouver-will-appeal-court-case-that-quashed-yaletown-development/

Excerpt: “We’re appealing because the judgment has left very significant uncertainty about what is the scope and the appropriate range of information that should be made available during a hearing like this,” city manager Penny Ballem said Thursday, adding the judgment has severe implications for all municipalities.

*****************

Now compare statements by Ms. Ballem and Mr. Jackson to the following opinion.

Opinion: Sloppy city hall led to Yaletown ruling (Allen Garr / Vancouver Courier,5-Feb-2015)
http://www.vancourier.com/opinion/opinion-sloppy-city-hall-led-to-yaletown-ruling-1.1754205

Excerpt:  If you were still wondering what Vision Vancouver Mayor Gregor Robertson chose to publicly apologize for in the last few days of the municipal election campaign, go no further than Justice Mark McEwan’s Supreme Court ruling handed out last week. That’s the decision that smacked city hall for its shenanigans surrounding a controversial and complex land swap in Yaletown and the public hearing into the deal. Specifically, the justice said the public hearing process “the city adopted was unfairly restrictive, in presenting the public with a package of technical material that was opaque.”

The city attempted to limit the public’s engagement by limiting the public hearing to only one of the two pieces of land involved in the swap, (one owned by the developer, the other owned by the city). McEwan criticized the city for “limiting the comment on the integrated nature of the project, and in failing to provide an intelligible (i.e. where do the numbers come from?) financial justification for it.” In fact, comparing the values assigned to the two pieces of land in the January 2013 land exchange contract between the city and the developer, Brenhill Development Ltd., and the values estimated by B.C. Assessment, there appears to be a difference of at least $50 million in the developer’s favour.

But an online comment by “The 99″ responding to Garr’s opinion piece puts things more into perspective: Sloppy this was clearly not. In fact, as every new detail has emerged by painstaking FOI request and ultimately through Supreme Court petition, it has been shown to be a story of a supremely calculated effort to defraud the public through the disposal of public land at an unbid, fire-sale price. The fact that the City (using taxpayer dollars) fought for a year to block disclosure and then to argue on behalf of the developer in Court is proof that democracy has died in Vancouver...

*****

CityHallWatch also wonders, if the City short-changed itself (i.e., the public) and enriched the developer by as much as $50 million in the secret land swap, couldn’t that money instead have been used directly to build social housing, rather than enriching a private company? And if the goal was to provide exactly the same number of social housing units (which is the result of the deal — no increase), what would the cost have been simply to renovate the building?

One thought on “Shockwaves from Supreme Court decision on New Yaletown public hearing: McMillan law firm bulletin reveals new realization in government and development industry?

  1. And now we have city hall using Their new rental policy to justify building 333 East11th twice the height and almost 3 times the density as their own published guidelines and according to Community plans. The public hearing was the same as usual with only select information given and the planning department not able to answer council’s questions so the decision was delayed to a later date so council did not have to deal with people present. Not enough information was given on the size of the 202 units but at a FSR of 8.66 couldn’t be very large. The city compared rents for 333 East 11th with market rents in the neighborhood but neglected to mention size of units they were comparing. They are now hiding behind the affordable housing skirt. If this one passes it paves the way for Vancouver to have monolithic developments of micro condos and all the problems such density brings to society.

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