public opinion irrelevant?

White Rock was the subject of another monumental Supreme Court decision last week. City Council’s decision to deny the Yearsley’s a development permit a few years ago for a six storey tower on the beach was overturned by the courts; the City has been ordered to allow the development to proceed.

The judge explained that “reliance on public opinion is not a relevant consideration if it is not linked to legitimate factors within the zoning bylaw or the OCP.” Since the six storey height of the building is permitted within the bylaw due to a fluke of how the property is sloped, public opposition to the height is legally irrelevant.

This is incredibly disappointing for three reasons.

First of all, it undermines the discretion that citizens believe City Council has for influencing development in the community. It greatly diminishes the authority I thought I had as a member of city council to direct the look and shape of buildings. In my decision to deny the permit, I believe that the building will not complement the surrounding neighbourhood or fit in with the general feel that is intended for the waterfront. Elected representatives for the community ought to have the authority to interpret public opinion and define the vision for the community’s future. Removing subjectivity from City Council’s judgement neuters its ability to respond to neighbourhood concerns and the community’s evolving vision.

Secondly, while reducing the value of public input, the specificity expected by the court will result in greater bureaucracy and red-tape. There is a trade-off between certainty and flexibility. While many developers prefer detailed instructions on exactly what to build on each property — how high, what shape, which materials — others want the flexibility to be creative and try something new or build something uniquely suited to their property. More rules means more hoops to jump through for people wanting to build on their property.

The Yearsleys argue that councillor and neighbourhood concern about the shape of their building is not their problem since it is positioned the required distance from the property line and is no higher than the maximum permitted in the bylaw. They say that they were not provided with alternative direction for what would be acceptable.

But that is not true. I sent multiple emails and met on multiple occasions with the Yearsleys and their architect to explain precisely what my concerns were and how they could address them. The judge seemed to want those embedded within the OCP and bylaws. While that sounds simple and fair on the surface, it is much more difficult and complex to actually do it.

Though my concerns are not explicitly prescribed in the OCP, they are implied. For example, there is reference to elements of the building needing to be “consistent with the pattern along Marine Drive.” This is specified for patios, walkway surfacing, building materials, and articulation of building facades. The OCP also states that “building design should take into consideration the surrounding physical environment and the character, scale and form of other nearby buildings.” Clearly, the intention is that new buildings fit in with others in the area. The following quotes should also make it clear that there is concern for the aesthetic of the building as experienced by the pedestrian.

  • “Avoid use of extensive solid walls, reflective glass or other similar material on the ground floor fa├žade of any building facing a street. Use variation in building mass, materials, architectural detailing, or colour to provide articulation to solid walls.”
  • For parking, “consider joint or shared access between adjacent developments.” This indicates concern for the impact of having multiple parking lot entrances close together.

I do not believe that a six storey glass tower takes into consideration the character, scale and form of nearby buildings. Nor do I believe that having the front of the building dominated by parkade entrances fits the intended facade character. I believe these character considerations should trump a developer’s desire to achieve the maximum number of apartments theoretically allowed by the bylaw.

The unique context of this specific property ought to supersede general statements about what could possibly be allowed in the area — the surrounding environment should be accepted as imposing limitations on the maximums otherwise permitted by bylaw. In a city where the topography and street patterns change dramatically every few hundred feet, is it possible to having zoning bylaws with the detail expected by the court without creating hundreds of bylaws?

Lastly, what I find extremely frustrating about this decision is that I repeatedly warned Council that the rules needed to be better defined. My concerns were dismissed when I talked about the bylaws being antiquated and out of sync with public opinion. During the OCP debate, I was chastised for wanting to add clarity to the Development Permit Area descriptions. Had councillors been more brave and more forward-thinking, this ruling would have been prevented, and dozens of equally misfitting homes throughout the community would have also been prevented.

It is a relief to read in a press release that City Council intends to review the OCP and bylaws for this purpose (the bylaw review has been planned for years but kept getting delayed due to other projects jumping the queue). I hope they are finally able to create more principled and reasoned development criteria. It was something I desperately wanted to do in my time as a councillor, but never had the opportunity.


… And one more thing, the reasons these rule revisions kept getting pushed back is partly a lack of political will and partly the reality that City staff cannot do everything desired when trying to keep up with a building boom. But it is also the result of so-called council watchdogs siphoning off those limited staff resources to respond to their conspiracy theories and rapid fire information requests that are nothing more than fishing expeditions searching for the axis of evil within White Rock City Hall. If they truly wanted to see better building practices, they would stop flooding City Hall with time-wasting paper-chasing demands and fighting at every move.

If the goal is to get the rules rewritten, this is self-defeating since the time that could be used to embark on such an exercise is instead burned by responding to cynicism. Not only does this sap the productivity of staff, it also makes elected representatives and staff less trusting. Rather than trying to prove their incompetence, it would be much more constructive to tell them what you want to see or what you are wanting to avoid, then listen with an open mind to their response. Attacking City Hall only makes them defensive, distracts them from their primary responsibilities, and makes them apprehensive of public consultation processes.

The council watchdogs demanding accountability should themselves be held accountable for their self-fulfilling prophecies.

3 Responses to “public opinion irrelevant?”

  1. Arjun Singh Says:

    Visit Arjun Singh

    This judgement does seem potentially very troubling Matt. Thanks for posting it, I am going to read it. While I think citizen watchdogs are very important, I also think constructive watching is so important.

    I am interested also in your comments about better defining development permit criteria. Would be interested in hearing an expansion of your argument.

  2. plegood Says:

    Visit plegood

    Although I would like to agree that residents have some say in form and character and perhaps height and density, the judgment makes it very clear that once a property is zoned a particular way, and the key word here is zoning, it makes it difficult to discuss or make decisions based on issues not directly relevant to the zoning.

    In the case of the Yearsley vs City of White Rock, had the property been zoned differently and required rezoning than your comments, as specifically pointed to in Judge Dillon’s judgement, and the many residents would have held some weight and council would have been correct in turning down the application.

    The OCP is a guide, just because it intends to allow higher density and height in a particular area, that area may require rezoning which requires a specific bylaw. If the OCP was a ‘bible’ then we wouldn’t have had the Bosa Towers.

    Again, when a property is zoned for a particular density and height it cannot be ‘down-zoned’ because of non-technical reasons, as you point out in your explanation above.

    The problem I see in most zoning and rezoning applications is that the City lacks a vision for certain areas of the city. In the case of where the Yearsley’s have property, the area there is underdeveloped. A proper plan should have been in place for that specific area and perhaps a special zoning in place that requires the entire area to be developed together and not separately. One example of how this has been accomplished relatively close to the area in question is Victoria Terrace. A development that seems to fit into the hillside and is attractive and rather unassuming, meaning it doesn’t stick out like a sore thumb. That development is also considered to be of high quality and sales for units there rarely stay on the market for very long.

    So, residents and council fear not, you do have a great deal to say when a development application requires rezoning. But if the area or property already has zoning in place, the judgement states you have little to discuss unless it is technical in nature and is relevant to the zoning.

    Council should take care in how they zone properties.

    Mayor Ferguson’s comments quoted in the Peace Arch News in May 2009 failed to include zoning in her statement and seemed to confuse guidelines with bylaws. The difference being the same as the terms ‘May’ and ‘Shall’. In rezoning it is ‘may’ and in zoning it is ‘shall’.

  3. Phil Le Good Says:

    Visit Phil Le Good

    I do think you could be a little more thorough in assessing the judge’s opinion in the case…the judge makes a distiction between that what is Zoned and that what requires rezoning.

    It is interesting to note the comments the judge uses as she singles out your comments for voting no on the Yearsley’s development application. Perhaps you could use her quotes to help your readers understand the difference.

    Council that determined whether or not Bosa was able to build taller than 12 stories as outlined in the 2002 OCP we able to do so not because the OCP is a guide and not a bylaw. The Bosa development required rezoning and this allowed council to determnine height and density and not follow the guidelines as set out in the OCP of the time.

    Council’s in the future should be very wary about setting zoning without proper consideration and planning in place to determine how the zoning may impede or restrict creative options or possibilities that residents in White Rock would be proud of.

    In terms of public consultation processes…I think the public’s confidence reached an all time low when the council you sat on decided to ignore a year’s work of OCP consultation and allow private interests of a small group of non-residents to reap their rewards by allowing an almost doubling of density and height in the town centre.

    Pardon me, but what happened in the case of Kwantlen wanting to house a small satellite in the Bosa towers? Council allowed two more floors to be built and when Kwantlen pulled out, those two floors went to suites benefiting who?

Leave a Reply

If you want to use XHTML tags, these ones are allowed: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>