Activism

Mouse that roared faces the boot of City bureaucracy  

Technocrats at the City Planning Department go to Supreme Court to challenge the citizens’ Board of Variance after it reversed a Planning decision

By Kevin Potvin  

What began as a small, out-of-the-way neighbourhood squabble over a tiny patch of gardens and trees has flourished into a bona fide modern day Magna Carta battle whose outcome will ripple far and deep into local governance, society, control and power.

A corner housing lot in East Vancouver that was never built on, but rather retained as a tree-encircled garden for the original owner’s children almost a hundred years ago, has since evolved into a lush, if tiny, sanctuary for the whole park-deprived east side neighbourhood of Grandview.

On one side of the property, two tiny pre-fabricated workers’ homes from the 1910s still stand, two of only six that remain of the once-ubiquitous homes that are now, in our services and tourism-dominated resort city, significant reminders of East Vancouver’s working-class origins, located here, downwind of the smoke-belching mills that once encircled the now yacht-blanketed False Creek.

But the neighbourhood-named Salsbury Gardens (after the street the property faces) has always been only an unofficial park whose visitors and garden tenders were tolerated, or just ignored, by the owner of the property over the decades. Two years ago, however, property developers from Richmond bought the land and applied to the City permit office to rip out the two houses, most of the trees and the gardens, and plunk down two monstrous duplex houses, eradicating Salsbury Gardens forever. Under the guidance of the revered Director of City Panning Larry Beasley, whose office issues permits for demolition and building in such cases, permits were duly issued to Richard Niebuhr of Niebuhr Construction to go ahead with their plans, seeing nothing of value to retain in the two stuccoed-over and decrepit homes, nor in the weedy and overgrown lot beside them.

The only opportunity members of a neighbourhood have to express opposition to any approved building plans affecting them is at the appeal board known as the Board of Variance. The Board of Variance, created in 1960, is a panel of unpaid citizen-volunteers deputized by the elected City Council to hear appeals by property owners or neighbours who feel they are unnecessarily or overly affected by building plans and conditions approved by the City’s professional planners. It is, in effect, the last chance for those governed to voice disapproval to those governing them in matters to do with the lowest, but by no means the least important, level—their neighbourhoods. In Vancouver, which is not represented by elected ward aldermen as in other cities, such neighbourhood democracy-enhancing institutions such as the citizen-run Board of Variance take on an even more crucial importance.

Last fall, after Richard Neibuhr turned down a written offer from the Parks Board to buy the property at a fair market value, the neighbourhood applied to the Board of Variance to oppose the plan by Niebuhr Construction, the plan approved by the technocrats in the City bureaucracy, to wipe out the gardens, trees and historically-significant homes. It was a bold and audacious attempt by these citizens. It marked an almost unprecedented stretching of the latent powers vested in the Board of Variance by a neighbourhood looking to take control of its own development. Typically given to considering largely innocuous questions to do with setbacks from property lines and materials used on housing facades, the hearing room last fall was small, airless, and packed with nearly a hundred neighbourhood residents, many of whom testified to the importance of the unofficial park to their life and the life of their community in East Vancouver. The Board of Variance had hardly ever seen or heard such an appeal before.

If the appeal to the Board of Variance was successful, it would mark a dramatic shift in the balance of power between the technocrats in the bureaucracy who impose their decisions, and the democratic powers of the affected citizens to moderate those decisions. For what the citizens were seeking was nothing less than that their citizen-volunteer board overturn a decision by the Director of City Planning. It was the Magna Carta being tried all over again at the level that has in the last few years emerged as the most crucial for citizens—the neighbourhood level.

As reported in The Republic last October, against all odds, and against the expectations of observers, participants, and experts alike, the Board of Variance surprised even itself in voting in favour of the appeal, overturning the permit approved by the City planners. We reported back then that this was a significant blow delivered in the perennial battle for democratic control of our institutions big and small, and that this small-seeming decision delivered late into the night in a tiny meeting room deep in the baroque City Hall building on West 12th Avenue would reverberate strongly in months and years to come.

Just how strongly was made clear last week. Niebuhr Construction had decided to challenge the decision by the Board of Variance to the BC Supreme Court, hoping to overturn the citizen board on the grounds that it had overreached its jurisdiction when it voted to oppose the Director of City Planning. The big surprise of the day, though, was to see who joined the Niebuhr Construction lawyers on the Supreme Court’s appellant side of the room: Patsy Scheer, lawyer for the City of Vancouver, sent to the hearing by the City Manager, boss to the Director of City Planning. It seems the professional bureaucracy took the volunteer Board of Variance decision last fall every bit as seriously as The Republic had.

It is rare enough that a developer, or anyone for that matter, challenges the Board of Variance all the way to the BC Supreme Court. And it is, to the best of this writer’s knowledge, entirely unprecedented for the City of Vancouver to launch or to join such a challenge to the Board of Variance. That such a challenge should come as a result of the Board of Variance having been stretched in its usefulness to the citizens by being asked to decide on a matter to do with a neighbourhood’s enjoyment of its local landscape, is highly significant.

The office of Director of City Planning grudgingly accept that a very few neighbourhood residents might have acceptable reasons to oppose minor details on permits they issue. As Jonathan Baker, former long-time NPA City Councilor, who reappeared at BC Supreme Court last week as the top-gun hired lawyer for Niebuhr Construction, said in court, the Board of Variance is best restrained to considering whether cedar shingles should be used instead of aluminum siding on the walls of a house, and other relatively minor matters. They are not knowledgeable about larger matters to do with quality of life and neighbourhood land use, he pointed out to the judge, for they are just lay people lacking professional expertise in such matters.

When it comes to questions of quality of life in the neigbouhoods, like whether an unofficial park should be retained in place of yet more monster duplex houses in a park-deprived neighbourhood, the City bureaucracy will evidently suffer no citizen-empowered encroachment on its powers. The City Manager deployed her legal team to BC Supreme Court last week to cut down the citizens at the Board of Variance, appointed by the elected City Council, and to shove the powers they had flexed last fall back into the tight little box they had been safely kept inside of for four decades.

Former elected councilor Baker put his side’s case clearly when he told the judge, “the hearing [at the Board of Variance last fall] had been so infected with the obsessive concern for things outside its jurisdiction that its findings would have to be set aside.” The “things outside its jurisdiction,” Baker went on to suggest, are community concerns with overall land usage. The jurisdiction over community interests, he made clear to the judge, rest solely with the office of Director of City Planning. He described the citizen’s Board of Variance as a “sword of Democles” hanging over the necks of property developers, whose property rights, he said, invoking ancient common law, were being unconstitutionally infringed by these busybody citizens.

But it was Patsy Scheer, lawyer for the City of Vancouver’s office of City Manager who twisted the knife that Baker had planted. She testified to the BC Supreme Court that the Board of Variance is intended to consider questions solely to do with zoning. She then stated that because so many citizens had attended the hearing last fall to express community-wide concerns with the permit, the citizen members of the Board of Variance were distracted from their narrow role, and erred in having allowed themselves to think about the community interests when they made their (obviously wrong) finding to overturn the decision of the office of City Planning.

By even asking the questions they did of both the developers and the citizens speaking to them that day, The Board had already breached the limits of its role, she said. They should not even have openly discussed the issues that the one hundred or so citizens had come to hear discussed that day at the Board of Variance hearing. By doing so, she suggested, The Board had made itself irrelevant.

This is an astonishing assertion for a lawyer acting for the bureaucracy of the City of Vancouver to make, and it should be soberly noted by current elected City Councilors under whose democratic authority the citizen members of the Board of Variance act. This is no longer only about the fate of a tiny unofficial park and its trees and gardens buried deep in East Vancouver; it is now about whether we, the citizens, are to be a democratically self-governing people, or not.

The hearing went on for six hours before being adjourned by the judge with much more testimony yet to come from both the citizens who brought the appeal to the Board of Variance in the first place, represented by neighbour Penny Street, to the owners of the construction firm interested in wiping Salsbury Park out, represented by Richard Niebuhr, to the City bureaucracy that stands behind him. The judge may not be able to schedule a hearing before late July or later still. The Republic will nonetheless watch for further developments closely. We do note, in the meantime, that the Vancouver Charter, section 573-6, states flatly, “No appeal shall lie from a decision of The Board of Variance.”