City staff are proposing an immediate shift to ‘electronic’ Public Hearings: Illegal under the Vancouver Charter, opportunistic under COVID-19 emergency. Just say no!

COV council in chambers 2018During the Special Council Meeting on March 31, 2020, Vancouver City Council opted not to accept the staff recommendations to “refer” four rezonings to the Public Hearing stage. However, at that meeting, City Manager Sadhu Johnston told Council that his staff were moving forward to prepare for and conduct Public Hearings electronically.

As of today (April 8), the staff are proposing the first electronic Public Hearing to be held on May 5, 2020. (See Council agenda for 14-Apr-2020, see staff memo – https://council.vancouver.ca/20200414/documents/comm1.pdf)

It is up to City Council to approve or reject this proposal. We hope they will reject it (and hold off on all Public Hearings until the ban on public assembly is lifted) .

Staff are rushing to bring these changes forward in the midst of the COVID-19 pandemic emergency. But there has not been any public discussion or consultation on this topic.

Johnston told Council that it is City staff who will determine the process and that there would be no debate. This way of moving forward is not only in violation of requirements in the City’s Procedure Bylaw (under the Vancouver Charter). Holding Public Hearings electronically would also fail to satisfy legal requirements under section 566 of the Vancouver Charter.

The legislation that the Province of BC recently passed to address the state of emergency for the COVID-19 crisis is specific regarding how it gives special emergency powers to Vancouver Mayor and Council to vary the Vancouver Charter ONLY to address the current COVID-19 health emergency. The permitted scope for application of these powers is very narrow.

Despite this, the City staff are taking this opportunity to consolidate power, override Council authority, and use the current health crisis as a means to make systemic changes that are illegal under the Vancouver Charter, going beyond the special emergency powers the Province has permitted under the BC Order M083.

We are witnessing what, if staff persist, will be a serious violation of democratic rights. This is just one example of City staff curtailing transparency, accountability, and public participation under the cover of the coronavirus emergency (another fresh example: “Vancouver quietly stopped posting ‘Development Application’ notice boards during the COVID-19 crisis,” CityHallWatch 8-Apr-2020)

• Below we go into legal specifics in the Vancouver Charter. Specific quotes from the Vancouver Charter for reference are at the end of this post.
• For an outline of concerns expressed on this topic by the general community, please see the April 5 letter from the Coalition of Vancouver Neighbourhoods (CVN) to Vancouver City Council: https://coalitionvan.org/posts/cvn-letter-5-april-2020/

The special emergency powers granted by the province to the City of Vancouver are limited.

The BC Order M083 is specific to the COVID-19 state of emergency and only affect sections 164.1 and 165.1 of the Vancouver Charter. This deals with “Vancouver Council or body” meetings only, not Public Hearings, which are covered under section 566 of the Vancouver Charter.

The emergency faced by the City is a health emergency. The decisions to use emergency powers must clearly fall within the ambit of the scope of the emergency. After the pandemic is over the City is likely to face legal challenges in the way they chose to exercise their powers, either by a judicial review or lawsuits for damages, or both, on the grounds that there was an insufficient nexus between the emergency and the power exercised.

Council Meetings
The emergency powers of BC Order M083 is specific to only sections 164.1 and 165.1 of the Vancouver Charter. This allows temporary suspension of the requirements under the Vancouver Charter regarding Council meetings, but not Public Hearings. It allows for electronic meetings on an emergency basis to deal with the COVID-19 crisis, without the need to call Special Council Meetings as would be required under the Procedure Bylaw.

However, this is not allowing business as usual. It is only specific to the matters required to address the health emergency. It is not a licence to do whatever they want without having full public participation with Council and the public in person.

The emergency should not be used as an opportunity to implement new procedures that would potentially be used on an ongoing or permanent basis.

Public Hearings
Public Hearings are not the same as meetings of Council. Democratic rights are written into the Vancouver Charter under section 566, which requires a Public Hearing in order to amend or repeal a zoning by-law and any rezoning. There are specific requirements for notice and public involvement.

These are not just administrative or procedural matters. Public Hearings have substantive rights under the law.

The emergency powers under BC Order M083 do not change the requirements for Public Hearings. Also, there is no allowance to continue to hold Public Hearings during the emergency, since rezoning is not required to address the health emergency of COVID-19.

Public Hearings are a quasi-judicial process that is specific under law in order to allow for all those who may have an interest in the matter a fair hearing under the law. Since the emergency is of a temporary nature, possibly only for a number of weeks, there is no justification for overriding procedures that have long term consequences.

CityHallWatch asserts that Public Hearings should be put on hold until after the ban on public assembly is lifted, which will not likely occur until after May 31. Citizens who feel the same are encouraged to contact Vancouver City Council. See link here:  https://cityhallwatch.wordpress.com/city-hall/contact-officials/

Amendments to meeting procedures require the approval of Council. This is not something that staff, public servants, should dictate to our elected officials.

The City Manager appears to be using the COVID-19 emergency to consolidate more power for the administration. City Council should consider carefully how much power it is willing to delegate to staff.

CONCLUSION

Is Council becoming a virtual body with little meaning except to rubber-stamp whatever is directed or recommended by City staff? We hope not. We cannot let this happen. It is up to the citizens of Vancouver, and the Mayor and Councillor who happen to be our elected officials, to ensure that this does not happen.

At the Special Council Meeting held on March 31, 2020, the City Manager said (anyone can confirm by viewing Council video of the meeting) that referrals to Public Hearings would continue through the COVID-19 crisis.  (In other words, City staff would continue officially recommending to Council that they refer rezoning applications to Public Hearings. Incidentally, the exact moment Council refers an application to a Public Hearing is the moment staff start preventing any communications from the public from reaching Mayor and Council regarding a specific application. CityHallWatch has covered this problem in the past). Recall, as stated above, that the City Manager also declared that it would be staff who decide the process for electronic Public Hearings and there would be no debate on the matter.

It is City Council that approves the Procedure Bylaw and it should be City Council that approves any amendments, even during a state of emergency. Unless Council chooses to delegate that authority. And the public should have notification and input into any such discussions.

The democratic rights of the public must be safeguarded, even under a state of emergency. There is no guarantee that if democratic rights are taken away under the veil of an emergency will be restored as soon as the emergency ends.

Even Council cannot suspend the obligations and public rights under the Vancouver Charter section 566 for Public Hearings.

References:

LOCAL GOVERNMENT MEETINGS AND BYLAW PROCESS (COVID-19) ORDER

http://www.bclaws.ca/civix/document/id/mo/mo/2020_m083

Below is the specific wording as it applies to Vancouver Charter and further definitions regarding “Vancouver council and body”.

This only applies to section 164.1 and 165.1 of the Vancouver Charter.

However, public hearings that are required for changes to the zoning bylaw are covered under a different section 566. copied below with Interpretation s. 559.

By this it is clear that the emergency powers under the BC Order M083 do not apply to Public Hearings. But even where the emergency powers are granted for Vancouver council and body meetings, these powers should be used judiciously to address issues of an emergency nature, not all business as usual.

Application

2 This order only applies during the period that the declaration of a state of emergency made March 18, 2020 under section 9 (1) of the Emergency Program Act and any extension of the duration of that declaration is in effect.

Open meetings – Vancouver

5 (1) Despite

(a) section 165.1 [general rule that meetings must be open to the public] of the Vancouver Charter, and

(b) any applicable provision in the Vancouver procedure bylaw,
the Vancouver council or a body referred to in section 165.7 [application to other city bodies] of the Vancouver Charter is not required to allow members of the public to attend an open meeting of the council or body.

(2) For the purposes of section 165.1 of the Vancouver Charter if the Vancouver council or a body do not allow members of the public to attend an open meeting under subsection (1) of this section, the open meeting is not to be considered closed to the public.

Electronic meetings – Vancouver

8 Despite

(a) section 164.1 [meeting procedures] of the Vancouver Charter,
(b) the City of Vancouver Council Electronic Meetings Regulation, B.C. Reg.
42/2012,
(b) any applicable provision in the Vancouver procedure bylaw,
the Vancouver council or a body referred to in section 165.7 [application to other city bodies] of the Vancouver Charter may conduct all or part of a meeting of the council or body by means of electronic or other communication facilities.
(2) A member of the Vancouver council or other body who participates in a meeting
by means of electronic or other communication facilities under this section is
deemed to be present at the meeting.
(3) Section 2 (2) (c) and (d) [electronic meetings authorized] of the City of
Vancouver Council Electronic Meetings Regulation does not apply in respect of
a meeting conducted by means of electronic or other communication facilities
under this section.

______________________

 Further notes, the Order speaks to “Vancouver Council or body” meetings.

Section 165.7 seems to define body as:

Application to other city bodies 165.7 Subject to the regulations under section 165.8, sections 165.1 to 165.5 apply to meetings of the following:
(a) a public auditorium or museum board or commission under section 204A; (b) the Building Board of Appeal under section 306B;
(REP) May 30/13
(c) Repealed.   [2012-29-51 (B.C. Reg. 170/2013)]
(d) the Park Board under section 485; (e) the Board of Variance under section 572;
(f) heritage commission under section 581;
(g) a Court of Revision under this Act;

VANCOUVER CHARTER

55 [SBC 1953] Page 113 of 325 Quickscribe Services Ltd.
(AM) May 31/18

(h) other administrative bodies;
(i) an advisory committee, or other advisory body, established by Council under this or another Act;
(j) a prescribed body. 2012-29-51(a) (B.C. Reg. 170/2013); 2018-23-44

_______________________________

Vancouver Charter Table of Contents

http://www.bclaws.ca/civix/document/id/complete/statreg/vanch_00

Meeting procedures

164.1   (1) The Council must, by by-law, do the following:
(a) establish the procedures that are to be followed for the conduct of its business, including the manner by which resolutions may be passed and by-laws adopted;
(b) establish the procedures that are to be followed in conducting meetings of
(i) select and standing committees of Council, and
(ii) any other committee composed solely of Council members acting in that capacity;
(c) establish the time and place of regular meetings of Council;
(d) require advance public notice respecting the time, place and date of Council and committee meetings and establish the procedures for giving that notice.
(2) A by-law under this section must not be altered except by a by-law passed at a regular Council meeting in accordance with a notice in writing given and openly announced at an earlier regular meeting.
(3) If permitted under subsection (4), a Council meeting may be conducted by means of electronic or other communications facilities.
(4) The Lieutenant Governor in Council may make regulations permitting meetings under subsection (3) and prescribing conditions, limits and requirements respecting such meetings.
1999-37-321.

 General rule that meetings must be open to the public

165.1   (1) A meeting of the Council must be open to the public, except as provided in sections 165.2 to 165.8.
(2) The Council must not vote on the reading or adoption of a by-law when its meeting is closed to the public.
1999-37-323; 2003-52-506

Part XXVII – Planning and Development –

 Interpretation 559.

zoning by-law shall include a zoning and development by-law.

Amendment or repeal of zoning by-law

  1.   (1) The Council shall not make, amend, or repeal a zoning by-law until it has held a public hearing thereon, and an application for rezoning shall be treated as an application to amend a zoning by-law.

(2) Council may by by-law require every person applying for an amendment to the zoning by-law to accompany the application with a fee to be prescribed by by-law.

(2.1) A fee under subsection (2) may vary depending on the size of the area covered by the proposed rezoning, and the by-law establishing the fee may provide for a reduction of the fee depending upon the complexity or scope of the proposed amendment.
(2.2) A fee under subsection (2) must not exceed the average costs of processing, inspection, advertising and administration that are usually related to a zoning by-law amendment of the kind to which the fee relates.

(3) Notice of the hearing, stating

(a) the time and place of the hearing, and
(b) the place where and the times when a copy of the proposed by-law may be inspected,
shall be published in accordance with section 3, with the last publication appearing at least 7 days and not more than 14 days before the date of the hearing.

(4) At the hearing all persons who deem themselves affected by the proposed by-law shall be afforded an opportunity to be heard in matters contained in the proposed by-law, and the hearing may be adjourned from time to time.

(5) After the conclusion of the public hearing, the Council may pass the proposed by-law in its original form or as altered to give effect to such representations made at the hearing as the Council deems fit.

(5.1) A member of the Council who
(a) is entitled to vote on a proposed by-law that was the subject of a public hearing, and
(b) was not present at the public hearing
may vote on the passing of the proposed by-law if an oral or written report of the public hearing has been given to the member by the Director of Planning or another official of the city.

(6) Notwithstanding the provisions of this section, where any street or part thereof has been stopped up under the provisions of any Act and the ownership thereof is transferred to the owner of an adjoining parcel of land, then the land formerly comprising the street or part thereof so stopped up shall be deemed to be zoned for the same purpose for which the parcel of which it has become a part is already zoned unless the Council by resolution shall otherwise direct.

(7) Notwithstanding the provisions of this section, where any land zoned pursuant to this Part has been transferred to the city for street purposes, whether such street is established or opened up by the city or not, such land shall be deemed not to be zoned unless the Council by resolution shall otherwise direct.

1959-107-20; 1962-82-16; 1992-57-15; 1999-38-65; 2008-42-139; 2010-6-136.

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