B.C. judge kills Yaletown development after flawed land swap process

 By Jeff Lee, Vancouver Sun January 27, 2015 6:36 PM

B.C. judge kills Yaletown development after flawed land swap process

Artist's rendering of condo tower proposed for the corner of Helmcken and Richards in Vancouver.

Photograph by: Brenhill Developments , Vancouver Sun

A B.C. Supreme Court decision throwing out a major development in downtown Vancouver over a flawed public hearing has reignited election criticisms over transparency and fairness at City Hall.

Leaving no question that he found the city’s dealings over a complicated land swap of public property lacking in public scrutiny, Justice Mark McEwan killed a New Yaletown development, even though part of it is already under construction.

And his admonition to the Vision Vancouver-led city council that it “unduly” restricted what it told the public about the Brenhill Developments plan for a 36-storey tower has raised questions for opposition members of what else the public has not been told.

“Community groups, along with myself and fellow councillors Elizabeth (Ball) and Adriane (Carr) have been very vocal about backroom deals at city hall and about this project specifically,” said Non-Partisan Association Coun. George Affleck. He and the other two councillors voted against the deal after the July 16, 2013 public hearing.

With allegations of cosy dealings and large donations from major developers to Vision Vancouver at the base of citizen complaints about a lack of transparency, the judge’s ruling reinforces those concerns, said Carr, the lone Green party councillor.

“Unfortunately, that is what many members of the public believe, and it was raised during the election,” she said. “When there is that kind of suspicion, that’s bad for democracy.”

Affleck and Carr say that McEwan’s stunning ruling is a declaration that the city has to change its ways.

“If you don’t change things after a ruling like that, you deserve to be kicked out of office,” Carr said. “The court is saying shape up, absolutely.”

Residents of New Yaletown took the city to court asking for a judicial review of a 2013 public hearing in which council approved a land swap and development involving two pieces of property.

Brenhill offered to trade the city its site at 1099 Richards in return for the social housing property the city owns across the street at 508 Helmcken. That building, called Jubilee House, contains 87 units inhabited by people on welfare, disability or veteran’s pensions. It also backs on to the relatively new Emery Barnes Park.

In the swap, Brenhill was to be allowed a 36-storey tower on the Jubilee property, more than five times the density and four times higher than the maximum allowed under the community development plan. In return, it would build a 172-unit social housing unit on its old property.

However, area residents represented by the Community Association of New Yaletown strenuously objected and claimed the public hearing was a “sham.” They argued that the city had already negotiated the land swap with Brenhill before the public hearing, and had failed to disclose important documents at the hearing. The fact that there was already a deal in place showed that the city acted with bias and that the hearing was simply for public show, they argued.

In his ruling, Justice Mark McEwan sided with the petitioners. He said the city’s process had been “opaque” and that the established principles of a transparent public hearing process had been violated. He not only threw out the development permit for the city’s property, but also the development permit for the site Brenhill now has under construction. He ordered new public hearings be held, and awarded the petitioners court costs.

“I have concluded in this case 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 to address the true nature and overall cost/benefit of the 508/1099 project to the City and its residents,” McEwan wrote.

“A public hearing is not just an occasion for the public to blow off steam: it is a chance for perspectives to be heard that have not been heard as the City’s focus has narrowed during the project negotiations. Those perspectives, in turn, must be fairly and scrupulously considered and evaluated by council before making its final decision.”

“The court found that basically it was unfair, that under the circumstances it was such a technical project that the public just didn’t have enough information to make an informed submission to council,” said Nathalie Baker, the lawyer who represented the petitioner association.

“What this means is everything starts from square one. Everything will have to start from the very beginning. If they want to go ahead with this project, they are going to have another public hearing with full public disclosure and council may or may not want to rezone 508 Helmcken and do the land swap.”

Both the city and Brenhill expressed severe disappointment with the ruling.

“We’re terribly disappointed with the way the court viewed the process that brought this project to fruition and that the decision has now halted a project already under construction. The overall project is one that offers many benefits to the people of Vancouver, not the least of which is the … new non-market housing units that replace and expand the decrepit Jubilee House that has long provided housing for people in need. It also delivers much needed market rental housing in Vancouver’s downtown core,” Brenhill said in an emailed statement. It did not identify a spokesman. “It’s much easier to attack complex city development approval processes than it is to build affordable housing for those who really need it.”

Vision Vancouver councillors did not respond to a request for comment. The city said it is considering an appeal.

“The city is disappointed in the Court’s decision and we are reviewing the decision to explore all options, including whether there are any grounds for appeal,” said spokesman Tobin Postma. “The judge’s reasons raise complex issues concerning development projects in the City that involve rezoning applications and public hearings.”

The residents had also argued that the financial details of the swap had not been in the city and taxpayers’ best interests. At the time, the city’s land was valued at $15 million and Brenhill’s at $8.4 million. Brenhill would also give the city $25 million in “community amenity contributions.” Ultimately, the city agreed to a deal in which the $6.6 million difference in the land values and the $25 million in CACs would be used by Brenhill to build the social housing building.

But since then the B.C. Assessment Authority has reassessed the city’s property at more $59.5 million, a difference of more than $47 million.

McEwan also raised concerns about the valuations, noting that “is impossible to tell whether the numbers have a real-world justification or are simply used to set up an offset that the proponents have chosen, to give the appearance of adequate consideration.

“In light of the scale of the zoning change and the trade-off of existing amenities for social housing, these things are more than just the City doing its ‘business,’ ” he wrote.


In an email before the judge’s decision was rendered, Alan Albert of the community association questioned whether the city had given away its property in light of the new assessment value.

“The new assessments also seem to imply that instead of the land swap with Brenhill, the city could have rezoned its property at 508 Helmcken, sold it for fair market value to the highest bidder, and received nearly $60 (million) — more than twice the amount of CACs it received in the land swap with Brenhill. With the proceeds of selling 508 Helmcken at the current assessed ~$60M value, it could have built two new social housing buildings, not just the one at 1077/1099 Richards.”

Baker said her clients are happy that they have stopped what they saw as a fundamentally flawed deal, and will want to participate in a new and “fully transparent” public hearing.


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