THE PLAN - PART 2

I have read the West End Plan. At 127 pages, it is longer than the British North America Act (our Constitution) but without its perky style. It is 5 times longer than the former West End Plan.

The plan starts with a declaration of 7 universal goals or principles. 

1. Achieve a green, environmentally sustainable urban pattern. 
2. Support a range of affordable housing options to meet the diverse needs of the community. 
3. Foster a robust, resilient economy. 
4. Enhance culture, heritage and creativity in the City.
5. Provide and support a range of sustainable transportation options.
6. Protect and enhance public open spaces, parks and green linkages. 
7. Foster resilient, sustainable, safe and healthy communities. 

Those West Enders who anxiously demanded more time to review the plan can relax. They will be pleasantly surprised that our local government is not proposing to clear cut the parks. It does not seek economic stagnation over robust resiliency. Creativity will no longer be the exclusive province of accountants. As to culture, some might have fearfully recalled Herman Goering’s remark, “every time I hear the word “kultur” I reach for my revolver.” Culture in our green, sustainable, robust, healthy West End is going to be “enhanced!”

Chapter 6 sets out built form guidelines. The first one is that the “dome of the skyline of the downtown as seen from a distance is to be reinforced.” This means that if a building is to be erected on a parcel of land, the developer should go stand somewhere else and gaze at the skyline. If from that perspective he sees the dome of the skyline, he must be sure that his building reinforces it. If the skyline doesn't appear dome-like from wherever he’s standing, it’s one less thing to worry about.

DOME TO BE REINFORCED

The 4th principle is to “recognize transitional roles in form and scale.” One of many helpful illustrations explains the geometry. Suppose you are a developer. You are thinking of buying a parcel that is near a high building. On the other side is a low building. Now, a building that is between two other buildings of unequal height should be an average of the two heights and neither too high or too low.

TRANSITIONAL ROLES IN FORM AND SCALE 

New buildings must be responsive to private views. Buildings should not block the views or privacy of other buildings. An illustration shows how this might be done, by aiming a balcony demurely in a different direction. Another way of course would be to build in New Westminster.

Chapter 7 deals with place. It explains that the West End has a number of distinctive places. If you think about it, this is another one of those great and simple truths. The plan observes that these places all have sub areas which the planners call villages and the villages in turn have sub-areas. If you are inclined to forget facts like this it is helpful to remember the poem,

Big fleas have little fleas

Upon their backs to bite em

And little fleas have littler still,

And so on, ad infinitem.

The three known  villages are each on Robson, Denman and Davie Streets.

Vancouverites are exhorted to  “Recognize and celebrate these three vibrant and distinct places. This is to be done by going to them to “gather, socialize and celebrate.”

There are general policy statements for almost everything.

The policies for the three villages are virtually identical and include, for example,  to “Limit residential development to ensure vibrancy at all times of the day.”

STAFF ENGAGING THE COMMUNITY p. 13

This is big news. It seems to me that for the last 25 years the City has been trying to require – not limit- residential developments above commercial developments to ensure vibrancy. Now the planners seem to have discovered that residents deaden the neighborhood. I hope the last generation of planners had liability insurance.

Another Policy that applies to Denman, Davie and Robson is to “Sculpt built form to maximize sunlight on the sidewalks particularly during the afternoon when Denman, Robson and Davie Villages are busiest. The Plan says, “Let there be light” and commands the UDI and member developers to turn it on.

Much of the plan is not concerned with land use planning. Rather it presents dozens of other good ideas relating to biking, walking, enhancing this and improving that. All of this used to be referred to as “peace, order and good government." The plan will be a useful reminder to administrations in the next 30 years to remember to replace dying trees, fix up the library, cut the grass, compost stuff, build facilities for special groups and generally lighten up and celebrate.

PEOPLE RIDING BIKES IN WEST END

If you want to know about density and height, most of it is called for on Georgia and Burrard Streets. They have not prepared design guidelines yet. For those who might worry that the plan is too specific,  it contains the following warning: 

Building heights are subject to other Council-approved policies, guidelines, by-laws and urban design considerations, and minimum site frontage (39.6 metres /130 feet).  [See my blog, Part 1]

Don’t ask how much the plan cost. You will never find out because they abolished line items from the budget.

WEST END PLAN - PART 1 - LEGAL CONTEXT

A plan is a law. It must communicate proposed rules about land use that can be understood by those who are governed by it. It must speak with enough clarity that it can be enforced by those who must enforce it.

I watched some of the West End Official Community Plan ("OCP") public hearing on streaming video. (If Vancouver was any other town in B.C. it could have had an OCP.  However, it is Vancouver and has only those powers conferred by the Vancouver Charter. It can enact Official Development Plans which are not quite the same as OCPs.) 

 One group of speakers could hardly contain their bliss. The days of glory had arrived. Others found it incomprehensible and grimly asked for more time to study it. 

An Official Development Plan under the Vancouver Charter does not require the changes it advocates. It requires only that if land use regulations are amended in the future, the changes must be consistent with the plan. If inconsistent, the amending regulations can be set aside by a court. It is unlawful to undertake any development contrary to the ODP. (Vancouver Charter s. 563)


If a plan is to apply for thirty years, subsequent councils of different political stripes, should be able to take some direction from it.  They must be able to determine whether or not a proposed development or zoning amendment  is consistent with the plan. The plan does not have to be precise, but it must say something.

Conveyancing lawyers in Vancouver do not normally give an opinion on whether any particular development can take place on a parcel. If a lawyer asks for a letter from the City, it will respond and will charge for the response. It will not, however, warrant its accuracy and will warn that it should not be relied upon.

I will comment on a few parts of the West End Plan in a later post. For now I want to review the powers pursuant to which it was enacted.

Vancouver Land Use Powers

Vancouver zoning regulations are found in a series of separate publications.

(1) Zoning and Development Bylaw No. 3575;

(2) The Official Development Plan Bylaws.

(3) Subdivision Bylaw No. 5208 and

(4) Parking Bylaw No. 6059.

There are also published policies and administrative bulletins  to guide staff in interpreting the bylaws and exercising their discretion. These policies are not by-laws. 

The Vancouver Charter differs from the Local Government Act in that Council has greater powers to delegate discretion in zoning and planning matters (Vancouver Charter, s. 565).

Comprehensive Development Zones

In conventional zones Council approves bylaws that regulate setbacks, floor space ratios, and height regulations. The result is a regulatory girdle into which the building must be slipped. A minimum amount of discretion is required in administering these bylaws. The plan checker’s task is limited to ensuring that the numbers match those the bylaw prescribes.

In contrast, in comprehensive development zones, Council is authorized to designate zones in which no regulations are fixed (s. 565(1)(f) of the Vancouver Charter). In exercising this power, Council has enacted two types of comprehensive development zones: the “single site” zone and the “official development plan” area. Official development plans govern large neighbourhoods or communities.

 All comprehensive development bylaws are listed in the Zoning and Development Bylaw in a single district schedule entitled “CD-1” (Comprehensive Development) District Schedule. The district schedule includes over 75 pages of addresses and the enactment date of the bylaw applicable to the comprehensive development area. 

Official Development Plans

Vancouver has somewhat different planning powers than other municipalities which are governed by the Local Government Act which, in s. 877 lists statements that must be included. 

Section 561 of the Vancouver Charter authorizes the creation of long-term development plans that relate to planning for a regional growth strategy. Such plans may then be adopted as “official development plans” under s. 562 of the Vancouver Charter. Not all areas of the city are covered by an official development plan.

Two bylaws may simultaneously cover certain large districts of the city. For example, the downtown district (created by Bylaw No. 4911) amends the zoning map to include the area within certain boundaries as “a Comprehensive Development District to be known and described as ‘Downtown District (DD)’.” The Downtown Official Development Plan (Bylaw No. 4912) applies to the same area. Section 3 of Downtown District Bylaw No. 4911 permits virtually all commercial, residential, institutional, industrial, parks, and public uses. These uses are permitted subject to the form, location and any special characteristics being in conformity with any Official Development Plan, By-law or applicable policies and guidelines adopted by Council and subject to such other conditions not inconsistent therewith which the Development Permit Board in its discretion may prescribe.

The Greenhouse Reduction Plan is an official development plan adopted in May 2010 that sets out statements on targets and policies.

Neighbourhood Vision Plans

In addition to official development plans, certain neighbourhoods have neighbourhood vision plans. These resulted from efforts of the Planning Department in 1997 to achieve a high level of community participation. Although the plans do not have the legal status of an official development plan, they can be just as influential on development decisions because neighbourhood vision implementation committees continue to meet, review plans, and meet with developers, and have varying degrees of influence. They generally should not be ignored by developers. These exist in Dunbar, Kensington-Cedar Cottage, Victoria-Fraserview, Killarney, Sunset, Hastings Sunrise, Renfrew-Collingwood, Arbutus Ridge/Kerrisdale/Shaughnessy (arks), Riley Park/South Cambie, and West Point Grey.

Exercising Discretion

Official development plans are zoning bylaws, at least in form. However, the  regulations do not always provide much guidance. The Director of Planning is given a broad discretion to approve, approve subject to conditions, or refuse applications for permits based on a review of the related goals, development guidelines, regulations, and any other policies that Council may determine.

Official Development Plan as a Zoning Bylaw

In Stanley Estates Ltd. v. Vancouver (City) (1985), 28 M.P.L.R. 56 (B.C.S.C.), the court held that the Vancouver Charter grants Council the jurisdiction to enact a development bylaw that is, simultaneously, a zoning bylaw. 

Single-site Comprehensive Development

On large sites and for large integrated developments where the development may comprise retail, office, institutional, or even residential uses (for example, Oakridge Centre or Pacific Centre), it is useful to allow the developer and consultant a free hand to design the project unhampered by numerous zoning regulations. The city’s design staff critique the design, a lengthy period of negotiation follows, and, when all agree on the project’s design and form, the zoning bylaw is drafted to fit the project rather than vice versa.

In single-site comprehensive development zones, Council prescribes the design of one or more buildings. Land use is controlled not by a set of rules; rather Council prescribes a form of development. Only one development is possible, for which a bylaw is drafted to fit the project, and a public hearing is held for that development as set out in the bylaw.

The plans for the permitted building are presented and approved following a public hearing 

Transportation 2040 Plan: A transportation vision for the City of Vancouver

The Transportation Plan was adopted by resolution. It does not purport to be a bylaw. It has some of the characteristics of an official development plan but was not formally adopted as such after a public hearing. It could be considered a zoning policy statement or an administrative bulletin. A downloaded link is found at

https://vancouver.ca/streets-transportation/transportation-2040.aspx

The Plan sets out land use directions linked to the road system and should be checked against any development proposal. The plan may render a rezoning or failure to consider a rezoning subject to attack if under the circumstances it could be said that Council had fettered its discretion as a result of it.

Under s. 569 of the Vancouver Charter 569(1) there is no entitlement to compensation when zoning powers are exercised. It could be argued that the Transportation Plan is really intended to be an official development plan that has not been properly enacted. Therefore a question arises whether the immunity to compensation for injurious affection applies.

A direct link to the Plan is:

https://vancouver.ca/files/cov/Transportation_2040_Plan_as_adopted_by_Council.pdf

Mayor’s Task force on Housing Affordability

The Mayor’s Task force on affordability is found on the City Web Site at http://vancouver.ca/files/cov/Final_task_force_report_brochure.pdf

The Council report adapting it is found at

http://vancouver.ca/files/cov/Staff_report_to_Council_re_task_force_report.pdf

Staff is directed to implement the plan with varying degrees of urgency. This document seems like an an official development plan but it’s not. When a zoning hearing takes place concerning lands for which rezonings are either encouraged, or discouraged, it could be held to be an illegal fetter on discretion should anyone seek to challenge it in court as such. 

Density Controls

Bylaws may regulate the height, bulk, location, size, floor area, spacing, and external design of buildings (Vancouver Charter, s. 565(1)(d)). As well, bylaws may prescribe open spaces, height, building lines, and regulate the maximum density of population or the maximum floor-space ratio (Vancouver Charter, s. 565(1)(e.1)). The power to regulate the maximum density of population authorizes the city to establish a system of quota zoning in which the uses and occupancies are disallowed after the population in a district reaches a prescribed maximum.

In a future post we will examine some of the features of the West End Plan.

THE WHEELS ON THE BIKES GO FLAT

One year from today there will a civic election.  VISION will be lucky to hold on too any of its seats.  The party which started off as COPE has Humpty Dumptied itself.  Every move it makes and every step it takes is greeted by protests and law suits.  Most of the protests have related to land use and transportation issues.  Much of the resistance comes from people who do not see increased density as the ultimate aphrodisiac. 

VISION has reached its tipping point. It has done too many things to too many people.  The apparent collapse of the Bike Share program in Toronto is the embarrassment du jour.  It reveals how they make decisions from the relatively benign (back yard chickens) to mass rezonings.

In July 2013 I commented on  the bike-share program. This was in the context that the  companies recommended Vancouver Staff for the contract (Bixi / Alta) were already in trouble. 

http://jonathan-baker.blogspot.ca/2013/07/6-million-bucks-for-bike-share-program.html

Seven months ago on April 19, 2013  Toronto's  Robyn Doolittle reported on the imminent collapse of Toronto's bike share program.  

Toronto’s cycling lobby leaned hard on council. It was 2010, a bike-friendly mayor was in office, and an election was looming. Toronto jumped on the wagon.

Now, taxpayers stand to lose millions.

“I think we got hosed,” Councillor Denzil Minnan-Wong, chair of the public works committee, said in an interview.

Just two years after its launch, Bixi Toronto appears to be veering towards bankruptcy. The company can’t pay its debt and isn’t breaking even on its day-to-day costs, according to city staff. It’s the same story elsewhere.

Across North America, Bixi projects — its American partner is Alta Bicycle Share — wouldn’t stay afloat without government subsidies. 

Alta, was also in trouble in Chicago.

http://www.stevencanplan.com/2013/divvy-memberships-growing-at-very-slow-rate/

Three months later on July 23, 2013, although Toronto’s bike-share problems were by then old news, staff  recommended a contract with the same troubled company.  Vancouver council approved.  Staff admitted that the company’s lack of success to date raised questions but, incredibly, they were ready to give it 6 million dollars anyway.  The proposal was arguably an illegal subsidy to a business contrary to the provisions of the Vancouver Charter.  

The obtuse bike report reflected VISION's opaque programmed budget system.  Non-Partisan Association councilors George Affleck and Elizabeth Ball and Green Party councilor Adriane Carr opposed the adoption of  budget recommendations because they found it incomplete and incomprehensible.  Affleck said he asked for a detailed operating budget this year and last, to no avail.  "I don't know how much more clear I can make it," he said of his requests for a breakdown of budget line items.  Carr said her requests for clarification of budget specifics, in particular details as to how community amenity contributions are to be allocated, the answers she got were "too wishy-washy."

see http://www.vancouversun.com/news/Vancouver+budget+process+emphasizes+objectives+over+line+item+details/7684486/story.html 

If you think we will not suffer a loss don't count on it. Gerry, Dobrovolny, Vancouver's transportation plugger upper is quoted in the morning Province, "We won't issue any money (to Alta) unless we are confident (bicycles and a sound business plan) are provided."  LOL

As far as the impact on traffic flow created by the bike lanes is concerned, it seems somewhat of a paradox, if not idiotic. that they would make lane separations that are as sturdy as the Maginot line  rather than to try them out first. The are designed to make it as expensive as possible for a future council to modify or remove them. 

It will take forensic accountants to determine the cost of the lanes  because the City doesn't provide line items in its budget.  All we can say is that they cost more than you think if you think that they cost less than they did. 

At the same time that they reduced street capacity for cars, they propose huge increases in density and tweet about walkable neighborhoods.

You can tell when VISION is getting nervous by the number of preening, self-congratulatory tweets the Mayor’s communications office sends out explaining how green we have become.

There is an array of hopeful political parties circling.  There are several possibilities. They could either (1) ultimately split the vote to ensure VISION another three years,  (2) split the vote to VISION's detriment,  (3)  each pick up a few seats , or (4) one of them could control council.

Four of the Parties (TEAM, NSV, COPE and CEDAR) have no incumbents and have not yet chosen their candidates.  TEAM has some fine people on board.  It has made overtures to NSV to merge, but it hasn't happened.    

NSV is also blessed with  good people some of whom belong to COPE.  Ironically,  COPE gave birth to VISION which has become the drum major for  the Development Industry.

CEDAR’s founders, the Chernen brothers, will likely run.  They have  no use at all for any professional politicians. This gives them a charm denied to the others.  They would like to take over City Hall and immediately do what they say needs to be done. 

The GREENs  will see Adrian Carr, who has connected with community groups and admirably irked the Visionistas  re- elected. Green could even gain some seats.

Which brings us back to the venerable  NPA- the party that has ruled Vancouver for most of its history. It starts from a position of strength compared to the others with its incumbent councilors, Affleck and Ball. Its name is tarnished in areas of traditional strength because of Sam Sullivan’s introduction of eco-density. The NPA can carry the next election if they:  (1) select candidates who are  intellectually credible but not alphabetically (E- Z) challenged . In our at large system a candidate’s position in the alphabet makes a difference.  (2) limit the slate to 7 or fewer council candidates, (3) commit to a workable system of local area planning ; (4) reject VISION's iteration of  Sullivan’s Eco-density, (5) Develop its platform by consulting  with neighborhoods and (6) Manage to attract members from the other parties. 

ANGRY BOARDS

Why are Neighborhood Associations so enraged? Whatever the VISION Council does today seems to be greeted by protest. Neighborhood associations have no electoral mandate. If they have any influence on politicians, it comes from the fact that they know more about their own neighborhoods than people who live somewhere else. They can be useful to politicians because they provide insight into local issues. Many such associations and neighborhood councils are slow to participate in protests that go beyond writing letters and making occasional appearances at hearings. 

This is because their Boards try to remain politically neutral. They recognize that their membership includes a cross section of voters. To endorse one particular party risks offending some of the people they claim to represent. Also, they are anxious to remain on as cordial terms as possible with the government of the day. Single issue groups are much more likely to be carrying signs, denouncing one party or another and speaking publically on the steps of City Hall. 

Today, many neighborhood associations are joining everyone else in protests. Here is one reason why.

From the mid-1980s through the 1990’s neighborhood associations were relatively quiet. Mayor Gordon Campbell (1986 to 1993) and Mayor Philip Owen (1993 to 2002) were careful not to stray far from issues raised in their election campaigns. Mayor Gordon Campbell, for example, in the late 80s suggested that illegal suites should be shut down. When owners told him that they needed them as mortgage helpers he proposed methods of allowing them to be upgraded and licensed. Massive waterfront Developments took place during this period but they resulted from a thorough planning process and were not projects that affected everyone.

In 2002, Larry Campbell, Vancouver’s 37th Mayor led a COPE council to victory. COPE accomplished the redevelopment of the Woodward’s Building and the safe injection site. Neither of these Downtown East Side projects, directly affected communities other than the one in which they were located. Other areas remained quiet. Larry Campbell graduated after his first term to the Senate. That was that.

In 2005, running against two separate candidates each named Jim Green, only one of whom ran for COPE, Sam Sullivan, led the NPA to a narrow victory. In June 2006, he introduced his “Eco-Density” initiative which proposed to enormously densify Vancouver. There would be towers and laneway houses. It had not surfaced in the election and yet it was so radical that Sullivan saw fit to copyright the name. This was the start of the current neighourhood protest movement. 

The Planners loved eco density, however and ultimately the Canadian Institute of Planners awarded Vancouver its Planning Excellence award.

Overnight everyone became an environmentalist. Vancouver’s former Director of Planning, Brent Toderian was hired by Sullivan. Born with a silver ecological footprint in his mouth, he said things like, “Vancouver’s challenge is to grow in a way that reduces our ecological footprint. The neighborhood-centre model supports the principles of Eco-Density—smart, sustainable growth.”

The Globe and Mail reported, when the VISION Council released Mr. Todarian:

But for years, development-community members unhappy with him had been saying he didn’t give clear messages about the planning department’s direction, with the result that projects floundered and stalled as people tried to figure out what he and the department really wanted.

Others blamed his leadership for the steady rise of neighbourhood anti-development groups; while another group of critics was concerned about what they said was a lack of overall vision for the city.

During his time, Mr. Toderian steered through the Eco-Density policy – Mr. Sullivan’s idea about increasing density as a way of making the city more environmentally sustainable – laneway housing, and a plan to transform the single-family housing along Cambie Street and the Canada Line into a row of apartments and office towers.

http://tinyurl.com/lglsqmu

One of the endearing aspects of the planning profession is that they are quite certain that they are correct and that all others are wrong. Sam Sullivan’s Eco-Density reflected the prevailing view held by American Planners and Todarian, that high density cities are correct, and that low density suburbs are not. This is called Smart Growth. Planners are to the manor born in that they are spared the indignity of running for public office. They can just tell the rest of us to get with their program.

It was the Norquay Neighborhood Association that first took on the ménage a trois of planners, developers and politicians. They took their protests to the steps of City Hall and were supported by members of other neighborhood associations.

The Dunbar Residents Association, met with Sullivan in the Dunbar Community Centre to discuss Eco-density. Many were enraged that such a policy would be introduced with no discussion during the election. Dunbar and other neighborhoods had several years earlier been led through a process by City Hall which, after almost two years of work, resulted in a plan called the Dunbar Vision. It supported densification but also specified areas where it was to occur. The Neighborhood bought into it.

Because of the intensity of opposition to Eco-Density, Sullivan was denied the NPA nomination in 2008. Peter Ladner replaced him as the NPA’s mayoral candidate. Not surprisingly, he lost. ROBERSTON and VISION won 7 seats. COPE Classic took two and the NPA elected only Suzanne Anton. During VISION’s and ROBERTSON’S first term, there were a number of issues that annoyed people but not yet to mutiny. That came later. For now, the election was taken to be a repudiation of centralized planning as represented by Eco-Density.

In 2011, VISION sought a second term and ran on its record. There was no reason why voters would consider returning to the NPA. It had not renounced its densification policy which conflicted with the existing neighborhood vision Plans and current zoning.

The floodgates of anger were opened when the VISION Council in its second term implemented Eco-Density under a different name. It was bad enough for Sullivan to introduce a change that affected all neighborhoods when he never raised it in his campaign. When VISION implemented that plan, many people realized that the election had been hijacked. Today no action by VISION escapes the attention of communities and their associations. A series of law suits is pending.

VISION could easily have avoided this by the simple expedient of listening to affected neighborhood associations. Now VISION is in an even worse position than Sam Sullivan was in 2008. Politicians who are feared can survive. When they are seen as ridiculous, they are finished.

With a year to go until the next election, to whom will the voters turn? I t is too early to tell since candidates have not yet been selected. According to the Georgia Straight VISION is creating neighborhood cells of Visionistas. This possibly reflects the fact that they have burned their bridges with existing groups. The other parties would be well advised to establish and reinforce their connections with all of the Neighborhood Associations.