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Can a councillor who is out expressing opinions on the Downtown Eastside plan still vote on it?

Question: Andrea Reimer extolled the virtues of the DTES plan which goes to public hearing on March 12th.  Sounded to  me like her mind was made up.  Doesn’t this mean she should recuse herself?

Answer: Well, I was going to pontificate in my little civic blowhard way about the leeway councillors have to express opinions, even when something is going to public hearing. Because I too thought this was going to public hearing. I may even have written that in my conversational, factually inaccurate way.

But I decided to ask Andrea to explain it all. She wrote a nice, long email, with a little piece of information in the first line that reminds us all what the actual process is here. Live and learn:

At this point, the DTES Plan isn’t coming to Public Hearing: it’s a policy document coming to Council for debate and decision. The public has the right to access this process (speak at council, write to council, meeting with councillors) but it does not constitute a public hearing which is a specific legal designation that carries more rigid process constraints and is used to evaluate whether amendments to bylaw meet the tests set out by Council-passed policies.

If the DTES Plan does pass, it would trigger a few items going to public hearing related to specific amendments to bylaws to bring them into compliance with the new policy direction.

At that public hearing, Council’s job would be to ensure that the changes reflect the intent of the policies passed in the Plan.

If those amendments pass, specific sites may come forward to public hearing under a rezoning policy (also contained in the plan) and at that point, it would be Council’s job to evaluate the specific site proposal against the policy and evaluate the offered benefits against the public benefits strategy.

I’m guessing that all sounds a bit much but it’s the framework we are given by the Province (pretty much every province has the same basic structure) and as I understand it, the Province’s intent is to provide some letter of certainty to landowners (both of land seeking rezoning and other landowners in the community) as to the expectations for land use and built form.

Our hope within that provincial framework is to create a structure by which communities (renters, co-op members, owners and everyone else) to be able to manage and guide growth of housing, economic activity, and community services and amenities.

 

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  • gasp

    Andrea Reimer is completely spinning you here!

    What this Council has been doing is to pass a “policy” in order to restrict what they will decide in the public hearing process.

    Ms. Reimer states:

    “. . . a public hearing which is a specific legal designation that carries more rigid process constraints and is used to evaluate whether amendments to bylaw meet the tests set out by Council-passed policies.”

    It’s obvious Ms. Reimer and the rest of this Council do not understand either their responsibilities or the nature and purpose of a public hearing.

  • gasp

    In reference to my previous post, I suggest you and Ms. Reimer may find the real law more informative than Ms. Reimer’s ramblings: See:

    http://jonathan-baker.blogspot.ca/2014/02/the-law-according-to-councilor-reimer.html

    for a more accurate description of the law on this topic.

  • Frank Ducote

    Not being a lawyer, I will still dare to weigh into this discussion from my understanding.

    Councils have more than one way to implement policy decisions – by adopting a bylaw or by resolution, the latter of which does not require a public hearing. (Zoning changes are bylaws and as such require a public hearing.)

    The resolution approach is more common for adopting a local area plan in Vancouver. In other municipalities without the latitude of Vancouver’s charter, area plans and OCPs – provincial legislation requires them, unlike Vancouver’s charter – are usually adopted as bylaws, which includes a public hearing. So, any change proposed to an OCP in other cities requires a public hearing.

    So, it would seem that Councillor Reimer is correct in this little tempest in a chai pot. The DTES plan would be adopted by a resolution of council and not as a bylaw.

  • Jonathan Weisman

    Actually, Mr. Ducote, your post explains precisely why Councillor Reimer’s approach is wrong.

    You correctly point out that “policies” may not require bylaws. The problem is that policies which are not incorporated into bylaws cannot bind planning decisions.

    Councillor Reimer has suggested that in public hearings, Council is restricted to considering whether a given proposal meets policy requirements. But council is prohibited from setting mere “policies” which bind themselves, as the courts have ruled, and as Jonathan Baker’s post highlights.

    Therefore, to be binding on anything which would actually AFFECT zoning, a policy passed by resolution simply isn’t good enough.

    Her explanation of public hearings, which she provided last week, is wrong for several other reasons; but for present purposes, Baker’s point stands.

  • Frank Ducote

    Mr. Weisman – OCPs adopted as bylaws are very intentionally long-lasting tools, updated once a decade or so and only after years of engagement. Unfortunately, as such, they are not very useful tools for each and every situation that invariably arises. They often allow little creative flexibility.

    Whether one likes it or not, the COVs discretionary zoning framework has worked pretty well since the early 1970s as a tool for city -building. Creating more rigid planning policies – as you seem to be suggesting – is not a very effective way to adapt to changing conditions and opportunities.

    All this IMHO, of course.

  • Randy Chatterjee

    Frank (5): What was going on in Vancouver in the 1970s with discretionary zoning (lots of downzoning in fact) has nothing to do with what is occurring today, nor how it is occurring. No doubt some flexibility is valuable to deal with site-specific conditions and to create unique urban rooms and public amenities.

    However, Jonathan Weisman (4) and by reference Jon Baker are on solid legal ground to assert that the recent Council majority’s “binding planning by policy resolution” is both absurd and legally flawed.

    Council resolutions are generally aspirational, not dispositive. Recently they have been riddled with material inconsistencies, misrepresentations, flawed histories, skewed surveys, etc. Legal would never allow any such gobbledygook to be stamped as an ODP Bylaw, and of course it would be more easily challenged in court.

    It is clearly inane and patently illegitimate for Councillor Reimer to assert that such at best aspirational and deeply flawed “policy resolutions” can bind the Council to a later decision on adopting a rezoning bylaw. But this is exactly what is happening from an empirical perspective.

    Once the Vision Caucus passes a policy resolution, they invariably pass any bylaw that references any aspect or permutation of that policy.

  • Jonathan Baker

    Reimer seems to have added a level of farce to the discussion as well as grounds for quashing the bylaw if it was a bylaw.

    If Council in fact approved an ODP (Official Development Plan) and she and her clones thought it was not a plan, then the bylaw could be set aside. The law unlike some religions does not always forgive on the grounds that “they know not what they do.”

    If, on the other hand, it was not a plan ( the “nonplan”) but the intention was to create a policy that would later oblige the council to pass the same plan later on, other consequences flow.

    If it is not a plan what is it? I am not sure but it is more akin to a conspiracy because Council is not supposed to fetter its legislative discretion by policies.

    Whatever the thing is, I learned this morning from Michael Geller’s Blog that a report considered by council relating to affordable housing which was a central component of the plan/nonplan was not presented to the public. If it was a plan, then this is a sound grounds for asking a judge to set it aside because the law requires it to be disclosed and made available to the public in enough time that they can read it and address it.

    If it is, however, a nonplan then it doesn’t have to be set aside because etherial concepts do not require quashing.

    Finally, Cllr Louie’s motion indicates that there were conditions attached. This raises the question whether the conditions were intended by Council to be met (a) prior to, or (b) after enactment. If prior to it has not yet been enacted. If after then it has.

    It is entirely possible that we live in 9 separate parallel universes and in a quantum sort of way, in some of those other worlds a plan has passed, but in our world a plan/nonplan have both passed and not passed.

    What happened? Does anyone out there know. Please identify which universe you are from.

  • Fern Jeffries

    There is something quite charming about the fact that Clr Reimer’s engages in spirited legal argument when she has no legal training and no post secondary education to speak of.

  • Frank Ducote

    @6 – to be clear, I said they would adopt the plan not as a bylaw – which would require a public hearing – but by resolution. Which is what they in fact did. The merits of that can be argued as long you and others care to, but it is hardly unique in our fair city.

  • jonathan baker

    Mr. Ducote. They cant’t adapt it by resolution. The resolution would not be binding. The plan would not be enacted and it could not bind council.

  • nathan

    If there was a plaintiff could we gather a spirited team of legally trained concerned lawers to do more than blog. I know as a maniac with no secondary education that if I were an elected official I would swear to tell the truth promise to swear and call the Fu..rs F…ers and definaltly get sued