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Vancouver launches new legal challenge to CP Rail, saying it has no rights to use Arbutus corridor for rail any more

October 5th, 2014 · 30 Comments

Hoo boy, the Holy War between Vancouver and CPR heated up again Friday when the city launched a lawsuit claiming CP has effectively given up its right to use the Arbutus corridor as a rail line. I’m attaching the city’s statement of claim below so all the legal scholars on the blog can weigh the merits of this argument.

Here’s my Globe story as well.

One other thing. The mayor said the lawsuit was partly to protect citizens from having CPR doing obnoxious, public-disturbing things along the track. But a former city staffer (that growing group of people with an enormous body of knowledge about the city) pointed out that the city specifically did not list certain activities as permitted on the corridor.

This is what the bylaw says

Excerpt #1

2.1 Designations for the Arbutus Corridor

This plan designates all of the land in the Arbutus Corridor for use only as a public thoroughfare

for the purpose only of:

(a) transportation, including without limitations:

(i) rail;

(ii) transit; and

(iii) cyclist paths

but excluding:

(iv) motor vehicles except on City streets crossing the Arbutus Corridor; and

(v) any grade-separated rapid transit system elevated, in whole or in part, above the surface

of the ground, of which one type is the rapid transit system know as “SkyTrain”

currently in use in the Lower Mainland;

(b) greenways, including without limitation:

(i) pedestrian paths, including without limitation urban walks, environmental demonstration

trails, heritage walks and nature trails; and

(ii) cyclist paths.

(link http://former.vancouver.ca/commsvcs/BYLAWS/odp/ac.pdf )

One provision it didn’t include in its bylaw was the following, meaning that CP’s threats to store train cars or do welding on the track would likely be prohibited just under the current bylaw, without having to go to court.

Excerpt #2

Transportation and Storage Uses means and includes all of the following uses, and any one of them, but no other:

…Railway Station or Rail Yard, which means the use of premises as a depot or station for passengers awaiting use of rail transport (non-commuter), for the servicing, cleaning or live storage of railroad cars, engines and other rolling stock, for the marshalling of trains, and including related storage of goods pending transport;

(link       http://former.vancouver.ca/commsvcs/BYLAWS/zoning/sec02.pdf

 

CITYOFVANvsCPR

 

Categories: 2014 Vancouver Civic Election

  • Salvaich

    The city might have a fighting chance with the constructive abandonment argument. Unless, and unless CP can show it maintained the track all along. A weak defense but then I am not a lawyer

  • Kirk

    Oh the irony. I’m sure there’s a lot of neighbourhood groups suing the City that got a kick out of this statement:
    “It’s unfortunate we have to take this step … but we won’t be bullied.”

    Anyway, regardless of the lawsuit, even if CP loses the right to run trains, how can they not have the right to clear their own property of trespassers? From a liability POV, don’t they have to maintain it? Some people were building structures.

    EDIT (great new feature!):
    If people can get squatter’s rights in Vancouver, I’m going to use the Beautiful Empty Homes blog as a shopping list.

  • IanS

    From my quick review of the pleadings, I don’t think that the City has much of an argument. However, I expect that the real motivation behind the lawsuit, apart from the City being seen as trying to do something, is to take a shot at an interlocutory injunction. If the City can persuade the court that their position has at least some merit, they may be able to get an interlocutory injunction which would stop CP from working until long after upcoming election.

  • Tiktaalik

    I’m coming round to COPE’s position that the city should simply expropriate the corridor. The back and forth between the City and CP has gone on long enough. We know the City’s position is right from the supreme court ruling. Let’s expropriate the land, give CP their $20 million and move on past this issue.

  • spartikus

    I dunno, I thought it was really laying down the gauntlet to CPR to prove they’ve followed the requirements of the Transportation Act. The points set out in #25 seemed particularly of note (and #29 indicating the CoV feels they have not met them).

  • Voice of Reason

    I think Exhibit A at the expropriation hearing would be the sale in 1996 of 1.5 km section in False Creek for $9 million for essentially a transportation corridor. How is the City going to justify paying only $20 million for a corridor 10X longer 20 years later. I have not seen where the City has explained the rationale for this wide discrepancy in values.

  • Voice of Reason

    Setting
    aside the legal arguments for a minute, I think we should all feel a little
    uncomfortable with a situation where the City changed the rules preventing CP
    from developing the land on the basis it was only entitled to use it as a railway
    and then going to court to prevent them from using it as a railway. They may succeed due to a technicality but it
    is not really equitable.

  • Paul Tolnai

    Right on the money VoR. This is a scary precedent for land owners in the city. What’s next? Changing zoning so that land may only be used for rentals, but then refusing to allow the rentals?

  • Jeff Leigh

    Would Exhibit B at the hearing be the sale in 2010 of 6 hectares of railway ROW in Richmond by CP? It sold for $5m.

  • Jeff Leigh

    I don’t think that is fair to the city council of the day that made that zoning change, Paul. I think it was a good decision. And the SC agreed it was fair and within the powers of the city.
    It wasn’t only able to be used for railways; that was but one use (see the article above).

  • Voice of Reason

    Only if you can argue that land in the Railway Avenue corridor is equivalent to the Arbutus corridor. Good luck with that.

  • Tiktaalik

    The Arbutus corridor is a “public thoroughfare” so while a rail line is an allowed use, CP hasn’t been suggesting the idea of building a public transportation railway.

    There’s a big difference between a rail line used for public transport and a rail line being used for industrial transport or for rail car storage. The latter uses are not allowed.

  • spartikus

    Of interest are the identities of the interveners in the 2006 Supreme Court ruling….on behalf of the City:

    British Columbia Chamber of Commerce, British Columbia Real Estate Association, Business Council of British Columbia, Canadian Home Builders’ Association of British Columbia, Council of Tourism Associations of British Columbia, Mining Association of British Columbia, New Car Dealers Association of British Columbia, Retail Council of Canada

    It seems these business groups didn’t, and presumably don’t, share your concern about this terrible idea that the government should have the final say in the zoning of a parcel of land.

  • Jeff Leigh

    The Railway Ave corridor was valued after the SC affirmed a city’s right to establish zoning. Not true for your example of the False Creek section in 1996.

  • spartikus

    They didn’t “change the rules” – CP wanted them to change the rules so they could develop the land and reap a financial windfall and the City declined.

  • Bill_McCreery

    It is unfortunate that Vision Van continues to try to use this as an election ploy. CP, on the other hand, is probably playing silly buggers just to get back at the City. All together when this kind of thing degenerates like this the outcome, especially for taxpayers is not good.

    It seems that CP was able to make a deal with Richmond, but has found it impossible with Vancouver. As much as anything, this speaks of the kind of relationship between the City and CP that seems to be specific to this property. Historically the City has had a good relationship with the railway. In 1972 the City bought the Shaugnessy Golf Course, which became Van Dusen Gardens + some low rise, high end housing to pay for it. We worked cooperatively with CP on the planning of False Creek and Coal Harbour.

    Given this it is probably inevitable that the Corridor will have to be expropriated. Perhaps Ian or another lawyer can tell us whether that can be done without the City having an immediate need for the property (ie: a transit line, even $25M is a bit much for a bike lane and
    gardens…), and what kind of end price could be anticipated.

  • spartikus

    Bill – with respect – it wasn’t the City that started tearing down gardens during campaign season.

    And the CoV did offer a deal akin to Richmond’s.

    The CPR is the author of the latest chapter of this story. And the wrote themselves in as the villains.

  • Bill_McCreery

    Spartikus, please try to look at the bigger picture that I outlined above. Among other aspects of this matter I said:”CP, on the other hand, is probably playing silly buggers just to get back at the City”. There is a fair bit of history here going back to the 90s and then the Supreme Court decision.

  • Voice of Reason

    From the Supreme Court ruling of 2006:

    “8 The effect of the by-law was to freeze the redevelopment potential of the corridor and to confine CPR to uneconomic uses of the land.”

    Sounds like changing the rules to me. Otherwise, why
    was the by-law of 2000 needed if it wasn’t changing the rules?

  • Voice of Reason

    You are ignoring the major issue here – restricting the uses of the corridor lands and then arguing that the land owner does not have the right to these restricted uses.

  • spartikus

    Re-read the ruling again, particularly the judge’s comments regarding the legal purpose of the ODP by-law. Also consider you are presuming the land was zoned for residential development which, given it was a railroad, is a stretch.

  • spartikus

    I, and the Supreme Court, did not ignore the major issue: Who has final say on land-use.

  • spartikus

    Bill you cannot argue the City is playing politics in the here and now and simultaneously talk about the history. The simple fact is if CPR hadn’t started digging up gardens in the Spring there would have been no CoV lawsuit in October.

  • IanS

    Bill,

    I’m far from an expert, but my understanding is that the expropriating authority is required to compensate the former owner of the expropriated property. There is a general formula set out in the Expropriation Act, which is (to paraphrase) generally market value of the property based on its highest and best use at the date of expropriation. In my view, such a fair market value expropriation would take into account the zoning in place at the time of the expropriation. There are some other quirks in the legislation concerning valuation, but that’s the gist of it.

    Having said that, I thought I’d read somewhere that there might be some constitutional bar to expropriation given that the property is owned by a railway company. I don’t know if that is the case.

  • Voice of Reason

    The COV is not saying they have the right to prevent the Arbutus corridor from being used as a railway but that CP has given up the right to use the corridor as they had abandoned it. Not the same issue as decided by the Supreme Court.

  • Paul Tolnai

    I’m not disagreeing with the SCOC on this post.

    (Although I will say, changing the zoning on the land does seem suspect and I’m still a little confused that the SCOC would let them do that. I mean what if the city decided to change the zoning on my condo building from residential to commercial, that would mean, effectively, the city has evicted us.)

    My argument here is that the city changed the zoning, and now CP wants to use the land as described in the zoning, but the city says they can’t.

    That sounds like sucking and blowing at the same time.

  • Paul Tolnai

    As I recall, CP started this work months ago, but paused because the city was willing to negotiate. Those negotiations then broke down. Had they just completed the work, this would have been all over and done by now. Which would have avoided the campaign season.

  • Bill_McCreery

    Really? How can politics not be part and parcel of history and context? As I said, there’s history, losing in the Supreme Court hurts. CP has it’s own brand of politics to play here and Vision Van is getting sucked into their snare. And, that’s not good politics optically or outcome-wise.

  • Bill_McCreery

    Thank you Ian. That’s very helpful. It would be very interesting to know more about this “constitutional bar”. That would really put a wrench in the works.

  • Everyman

    Anyone know what retaining a lawyer like Joe Arvay might cost? Doesn’t the city have it’s own legal department?