Send amendments to Official Development Plan back for public input

The Community Association of New Yaletown sent the following letter to Vancouver Mayor Gregor Robertson and all City Councillors, urging that the proposed amendments to the Official Development Plan (ODP) for the Downtown District be sent back for public input.

The proposed amendments will be considered by Council on Feb 4, 2015.

Read more on CityHallWatch.

Dear Mayor and Council,

We are writing on behalf of the Community Association of New Yaletown. We are united in voicing strong opposition to the proposed amendments to the Downtown Official Development Plan.

Over 600 people signed the CANY petition calling for more public involvement in land use decisions in New Yaletown. We now wonder if these proposed ODP amendments are an end-run to again avoid public input.

We urge you to send the proposed amendments back for public input and consultation.

The reasons for our objections to advancing the amendments to a public hearing are summarized here:

• There has been no public consultation or input into the amendments
• There has been insufficient notice
• The amendments would remove council oversight and public input
• The amendments may violate the Vancouver Charter
• The amendments would implement inconsistent definitions of social housing terminology
• This is a citywide issue, deserving of citywide input
• The amendments and supporting materials are confusing, making it hard for the public to understand their impact
• The proposed magnitude of the new density bonuses is major; density increases of such magnitude deserve individual review by Council and the public.
• Some of the proposed amendments seem to be an end-run around the recent Supreme Court ruling
• There are technical inconsistencies in the proposed amendment that require greater scrutiny

These objections are described below in detail:

No Public Engagement

City Hall is proposing major changes to the Official Development Plan of the Downtown District. These changes, if approved, would result in significant changes to the character, density, height, and allowable uses in the downtown area. The changes also would implement significantly new definitions of types of housing and eliminate others. No public consultation process in preparing the proposed amendments has been conducted whatsoever.

Changes to the development plans for other parts of town, such as the Commercial Drive area or Marpole, have been conducted with extensive public input lasting months and even years. The Downtown District, at the heart of the city, deserves more than a few weeks.

Is this proposal an attempt by City staff to avoid public consultation on our district’s Official Development Plan? The public should have input on the proposed amendments before we even get to a Public Hearing, to help ensure public support. Doesn’t the Downtown District deserve public engagement?

Insufficient Notice

There has been insufficient notice to the public. The agenda and proposal was posted Jan 29, just two days after the Court’s decision in Community Association of New Yaletown v. Vancouver (City), and less than a week before the meeting. That is not enough notice to allow for informed public input into the matter, and appears to be a rushed end-run around the recent Supreme Court ruling. Why can’t the public be given sufficient time to consider the proposed amendments?

Removal of Oversight; Charter Violation?

The proposed changes are intended to bypass Council’s and the public’s approval of future changes in allowable density on a property — an abdication of Council’s responsibility and an obstruction of the public’s right to comment on individual changes in their neighbourhood.

The relaxation of the requirements for Council approval for changes in density for public housing, and the increase in the amount of density that could be automatically granted under the proposed amended DODP, also appear to be in violation of s. 565.1 of the Vancouver Charter. See http://www.bclaws.ca/civix/document/LOC/complete/statreg/–%20V%20–/Vancouver%20Charter%20%5BSBC%201953%5D%20c.%2055/00_Act/vanch_28.xml#section565.1. Full legal review of the implications of the proposed amendments in regard to the Vancouver Charter and in regard to Justice McEwan’s recent ruling would be prudent before any such amendments are considered by Council.

Changing, Inconsistent Definitions of Social Housing Terminology

City Hall is proposing to create different definitions of social housing for the downtown area than apply for the rest of the city. To do this would make social housing planning and measurement more difficult and confusing, citywide. Given the magnitude and complexity of the need for social housing, taking a piecemeal, area-specific approach to even defining social housing seems inappropriate. The city deserves definitions of social housing terminology that apply citywide.

The proposed changes apply different definitions of social housing for different neighbourhoods even within the downtown area. In addition to the reasons given above, this type of change would make it even harder for the public to understand what is and is not social housing. Further, these changes appear to be designed to further avoid public input on specific developments that may directly impacting their neighbourhoods. How can the City even measure progress of social housing, when different areas of the city, and even different neighbourhoods within those areas, have different definitions? Again, Vancouver deserves definitions of social housing terminology that apply citywide.

The wording of the proposed definition of public housing eliminates some useful distinctions between the different types of housing that currently exist across the City, and counter-productively blurs all existing definitions under one, far less meaningful term (which as noted below, lacks a inconsistent definition even within the Downtown area). The terms social housing, low-cost housing, low-end of market housing, secured market rental, affordable housing, etc. all deserve to have official definitions that are consistently applied across the city. Is eliminating the meaningful distinction of different types of housing in the public interest? Does it deprive the City of the ability to adjust incentives for different types of housing?

A Citywide Issue

Even though these amendments are specifically for the downtown area, the Vancouver public citywide has an interest in the impact of this new bonusing strategy as this appears to be the first step in a planned area-by-area reduction in Council’s and the public’s ability to provide oversight of rezoning. Neighbourhoods across the city deserve notice about this issue, as evidenced by the fact that neighbourhoods other than the downtown district who have learned of this proposed amendment are now scrambling to offer their own input. Shouldn’t these amendments receive full consideration and discussion citywide?

Confusing Language; Impact Difficult to Understand

The proposed amendments are worded so as to be hard to understand by the lay public. Understanding the impact of the changes is even more difficult. The sections describing the amendments, in particular, are neither intelligible or understandable. Can the City do better in helping the public to understand the changes and their potential impact on the downtown area? Can the City provide physical models of the difference in allowable density, both with and without the proposed amendments?

Major Density Increases Should Not Bypass Council and Public Input

The proposed amendments significantly increase the density that can be applied via density bonusing by the Development Permit Board, rather than through a rezoning process approved by Council as is normally required for major increases in density. Specifically,

• Section 3-4 of the amendment grants the DPB the ability to increase maximum FSR (for developments with 2/3 “social housing” or secured market rental housing) from 5.00 (previous) to 6.00 (proposed), an increase in FSR of 20%.

• For L1 (New Yaletown), the nominal FSR is 3.00. The previous bonus of an additional 2.00 for social housing is proposed to increase to 3.00 — an increase by 50% of the previous density bonus).

• Looking at “secured market rental housing” specifically, the maximum FSR for a building that is 100% in this category is increasing from 3.00 to 6.00, in L1 at least.  That’s a 100% increase—a doubling—in FSR.

Taken together, the magnitude of these increases appear to be labeling as “density bonuses” what are more rightly considered as actual rezonings, dramatically changing the nature of the allowable architecture in a neighbourhood. The magnitude of the allowable bonuses appear to be an end-run around the purpose of requiring a public hearing for a rezoning. Is it appropriate for the Development Permit Board to have such a large, automatic impact on a development and on a neighbourhood without explicit Council approval and public consultation?

Sneaking in Automatic New Yaletown Approval?

The changes to Appendix B, p.19 appear to apply in particular to the height constraints for the small-sized properties where density limits are not the primary constraint, such as 1077/1099 Richards in New Yaletown, which was the focus of the recent Supreme Court ruling. As such, is a primary motivation for this amendment is to achieve, by changing the DODP, the type of upzoning that was stricken down in the court ruling. Is this the case?

Technical Issues

There appears to be a possible internal contradiction in the text of the proposed amendment:

• Section 3-1 L states: “the maximum density for all uses for a site with social housing shall be floor space ratio 5.00 provided that social housing comprises more than two-thirds of the floor space ratio;”

• Section 3-4 states: “if social housing comprises more than two-thirds of the floor space ratio or if secured market rental housing comprises all of the residential units, on a site with a maximum frontage of 23m, the Development Permit Board may permit an increase in density to a maximum floor space ratio of 6.00 if the Development Permit Board first considers:…”

In the previous version of the DODP, the language was similar but both values were 5.00. Is this an error?

The Community Association of New Yaletown strongly urges you to vote “no” and send the proposed amendments back for public input and consultation. The Downtown District deserves better.

Sincerely,
Directors, Community Association of New Yaletown

CANY urges you to send an email to the Mayor and Council. Tell them to seek public input before advancing the Official Development Plan amendments to public hearing.

What does the judgment mean for Vancouver?

In Community Association of New Yaletown (CANY) v. City of Vancouver, Justice Mark MacEwan has forcefully ruled that “the public hearing and the development permit processes were flawed in that the City has taken an unduly restrictive view of the discussion that should have been permitted.”

As we read it, the main impact of the judge’s ruling falls into two main categories: functional and procedural.

The functional impact of the ruling is directed solely at the two properties that were the subject of the land swap in New Yaletown.

The judge’s procedural statements apply to the interpretation of law citywide, and are intended to fundamentally impact the way city hall operates, now and in the future.

What happens to the New Yaletown Developments now?

Functionally, in ruling that the approval process was unfair, the court’s remedy quashed the bylaws and development permits associated with the development of the two New Yaletown buildings.

The judgment essentially re-sets everything back to the way things were when the development was first proposed. To proceed with the planned developments, the City must now start from the beginning, including the public in a fair and legal procedure.

What impact will the ruling have Citywide?

Procedurally, the judge’s ruling includes strong direction to the City to follow five primary guidelines to its public hearing and development permit processes:

• The City must provide “intelligible” and “understandable” information to the public for scrutiny and consideration. The information must be “simple and direct” and not be buried in peripheral, technical jargon, as it was in New Yaletown reports. The City must include justification for “values and estimates of value,” if such justification exists, and not hide this information from the public as it did with the New Yaletown developments.

• The City must provide proper notice to the public, so that residents are aware of proposed changes that affect their neighbourhood. It can no longer avoid public scrutiny by hiding a bylaw change that affects one neighbourhood in a decision presented as relating to a different neighbourhood, as the City did in the New Yaletown land swap.

• The City must provide the public a “fair opportunity” to communicate with Council about the costs, benefits and full advantages and disadvantages of a proposal’s impact citywide. “Residents of the City have a right to a voice,” the judge ruled. City Hall can no longer unduly restrict the comments of the public to a limited technical range, as it did in the public hearings related to the New Yaletown land swap.

• Council must listen to and “scrupulously” consider the input from the public, and cannot arrive at a pre-ordained conclusion. The judge ruled that “a public hearing is not just an occasion for the public to blow off steam,” as had been the case in the New Yaletown public hearings and has been common City practice prior to the ruling.

• Council can not rezone property to be in conflict with the Official Development Plan (ODP) for the area. In other words, Council can no longer approve “spot re-zoning” that is contrary to the ODP, as had been the case with the New Yaletown land swap and has been common practice throughout the City. The ODP legally defines the character and density of an area of the city and the neighbourhoods within it. If Council votes to change zoning to conflict with the ODP, then a change to the area’s ODP must also be separately approved by Council in order to keep the zoning and ODP in alignment.

The Supreme Court ruling is a win for all of Vancouver

Each of these changes are highly beneficial to Vancouver — they enable the public to become part of an “engaged city” and more fully participate in the creation of our future. The changes will have a positive impact on the way City Hall interacts with residents of the city.

Should the City appeal the decision?

Brian Jackson, General Manager for Planning and Development Services has stated that the City is considering an appeal of the judge’s decision.

As we see it, any appeal of the judge’s decision would, in effect, oppose one or more of the above bullet points.

In a City appeal, would Brian Jackson argue that:

• The City does not believe it should provide the public with intelligible information, and should be allowed to hide whether the City is receiving good value for its property?
• The City does not believe it should provide proper notice to the public of proposed changes?
• The City does not believe that the public has a right to a fair opportunity to communicate with Council?
• The City does not believe that it must consider public input, and should be allowed to make predetermined decisions ignoring the voice of the public?
• The City believes that it should be allowed to make laws that conflict with the City’s own development plan bylaws, which are intended to help maintain the character of our neighbourhoods?

Regardless of any potential technical grounds for such an appeal, which of these arguments seems like a good idea?

Which of these arguments sounds like a winning move, politically?

Do you want the City to spend your taxpayer dollars on an appeal?

Raise your voice and tell the City to respect the Supreme Court decision.