Where democracy happened
The day-in, day-out drudgery of democracy can be tedious, tiresome, and time consuming. But however draining of the soul the endless testimonies at City Council, or at appeal boards and appeal courts, can be, it is all crucially necessary. If the people are to retain their democratic powers in their relations with state and corporate powers, they are required to assert them at every opportunity. Asserting democratic powers means participating in person at the venues of democracy that are provided, be they boring council meetings, dull appeal boards, or even screamingly ennui-inducing appeals courts, such as the one I sat in for the better part of this week.
What they’ll find in those venues is Potvin’s Third Law of Inverse Proportionality in action: the more dull the proceedings, the more airless the room, and the more cumbersome the arguments, the more significant the events in them are to the unfolding experiment with democracy that our society is.
Case in point: It was midmorning of the third day of submissions at the BC Supreme Court building in downtown Vancouver in the case of Niebuhr Construction versus Vancouver Board of Variance, when finally the key issue was raised that lies at the heart of this whole year-long narrative, and that strikes that chord that makes this apparently obscure case resonate, however forlornly, with history’s clarion calls to democratic action that echo up to us through the ages.
The case of Niebuhr vs Board of Variance began in early 2005 as a simple-seeming routine granting of a permit by the Vancouver development permit board to a small home construction company to build a couple of duplex homes on some property deep in Vancouver’s east side. It has by now evolved into a monumental battle over the role of citizens in the governance of their own city. It has become a battle over the very state of democracy in the heart of the famed “most livable city in the world,” a city fairly regarded by the country and the world as one that is out on the leading edge in urban design, civic development, and livability issues. If basic democracy cannot be embedded and nourished in the processes surrounding urban design, development, and livability in this city, what hope is there elsewhere in the world that citizens could acquire and retain the powers of democracy in their own cities?
It is surprisingly seldom that big celebrated cases are where such battles unfold; it is rather in these small, mostly overlooked cases, like Niebuhr vs Board of Variance, where the future is secured, or is lost.
It turns out that most of the property where the duplex houses were to be built has never been built on before, but has instead served the Commercial Drive-area community as a tiny unofficial park that has over time been developed partially into a garden all set about with special trees, some more than a century old. The two tiny and apparently non-descript homes on one end of the property present an even more interesting story, and bring in a class-conflict element to this tale.
These are BC Mills pre-fabricated homes constructed on the site by its original owner in 1906, and were the first homes on the street. In those days, you could order from BC Mills a complete house kit, as well as a bank kit, a church kit, a school kit, and whatever else you needed to establish an instant village in the hinterland. BC Mills guaranteed that anyone without carpentry skills could build the kits, and they were delivered to one’s homestead anywhere in western Canada. But Vancouver residents found the kits were also a great starter home right in the city. The kits were enormously popular with poor immigrants, and the BC Mills pre-fab houses were everywhere where real carpenters and home builders could not be afforded. Only eight remain in Vancouver today. Two of those eight are on this property, and nestled nearby is another BC Mills kit—a church, across the street, still doing duty as a Fijian Hindu temple.
On the other corner, and one block up, are, by contrast, two of the biggest and most elaborate mansions in all of Vancouver—an enduring testimony to up-market pretensions some of the first residents of East Vancouver entertained, imagining—before the mills of False Creek starting bellowing their smoke east—a neighbourhood to rival Shaughnessy for its exclusiveness. It is Shaughnessy-type homes that dominate on the City’s heritage property list, while the much more modest homes that speak to the experience of the majority of early Vancouverites, like these two BC Mills homes, are virtually non-existent in the City’s heritage inventory. Situated on and immediately around the property is both the highest of pretensions and the lowest of realities, a microcosm like few other properties could be for the development and evolution of East Vancouver as a whole, now celebrated as the country’s most mixed neighbourhood, ethnically, socially, and economically.
Hero of the story
It was the neighbour, Penny Street, living immediately to the west of the property, in the beautiful craftman’s modernist bungalow house built by the original owner of the property while he lived in one of the BC Mill houses, who presented this story to the BC Supreme Court. She offered it as evidence of how a community can be legally considered an “aggrieved person” as a result of a permitted development, for the purposes of establishing a valid hearing at the permit appeal board, known as the Board of Variance. (And it was she who launched the appeal to the board in the first place, along with Sharon Kravitz, who lived in one of the homes, before being evicted by the new owner.) The Board of Variance approved of the appeal on August 25, 2005, overturning the permit the city planning staff had earlier granted to Niebuhr Construction to knock the houses down, remove the garden park, and put up two monster duplexes.
Niebuhr construction then took the Board of Variance to BC Supreme Court, arguing that the Board of Variance should never have agreed to hear the appeal. The Niebuhr’s lawyer, Jonathan Baker, further argued that the Board considered invalid facts in making its finding in favour of the third party appellants and their supporters, over sixty people from the local community, who packed the meeting room late into the night.
The City of Vancouver joined the developer in the case, dispatching a lawyer to sit in on proceedings and make a submission to the court about the limited jurisdiction the Board of Variance had in the case—a jurisdiction, the City argued, that did not include hearing from one member of the community after another as they eloquently testified to their love of the park.
“We’re talking about a minor relaxation [of zoning requirements] to make a house fit with other houses,” Patsy Scheer, lawyer for the City of Vancouver, told the judge. “That was not what was on the minds of the Board members at this hearing,” she claimed. Board members, who are non-professional citizens (in planning anyway), appointed by City Council for a three-year term, are not required to give reasons for their individual decisions. Scheer claimed it was necessary therefore to examine the transcript of the hearing to infer what the reasons were for the Board members to make the decision they did.
Scheer went on at length quoting from the record what members of the public and board members had said at the hearing, finding examples of an “open and frank discussion” of what she termed “irrelevant considerations” to such a degree as to cast sufficient doubt on the reasonableness of the Board members to throw their decision out.
The lawyer for the Niebuhrs, Mr Baker, went further. He accused the Board of Variance members of weak integrity because they had “too closely allied themselves with the citizens. . . . The Board was so close to the people, it was unseemly,” he seethed. It was almost as though both the City and the developer both squinted their eyes and saw far too much democracy brewing down at the Board of Variance . . . and they determined to smother it.
A lesson for us all
The case revolved around the intent of the provincial legislation that created the Board of Variance in the first place. But no one thought to reflect on the fact that the province must have knowingly created a situation where irrelevant and sometimes “crazy” things would be said, as Baker had characterized the meeting. After all, it created a citizen-empanelled board to hear appeals from the public, and must have anticipated that that would mean “wide-ranging discussions” of sometimes “irrelevant statements and facts” following an only loose structure of proceedings, because that, as everyone knows, is exactly what democracy looks like when it is truly open to the citizens.
One important lesson was made clear after the City’s lawyer and the developer’s lawyer had spoken: citizens taking advantage of such bodies as appeal boards and other quasi-judicial bodies to re-assert and protect their democratic rights, should make sure they put on the record at least a token few sentences directly related to obvious and legitimate issues, and ensure relevant information is put up for at least token consideration by the board. If a board wishes to find in favour of the people against the interests of corporate or state power, it can only do so, and still avoid a court quashing of its finding later, if it had before it relevant and legitimate information, even if that information goes against the case the people are trying to make. The City and the developer in this case made much headway in their attempt to have the court quash the Board of Variance finding by showing that the Board members did not have sufficient relevant information before it when making its finding.
But the real key to this whole case came up quietly and innocuously within the submissions made on the third day by Derek Creighton, lawyer for the Board of Variance, and it was not opposed, or even apparently noticed, by the lawyers for the City and the developer—or if they did notice the key floating by, they chose to leave it well enough alone, in case the judge didn’t notice it.
Creighton pointed out that if we adopted the City's and the developer’s fundamentalist reading of the legislation that created the Board of Variance, and limited appeals to the Board only to property owners who had had a permit turned down by the planning department, then there would be no opportunity for the neighbouring citizens to speak to the City about any development.
But, Creighton went on, our concepts of natural justice dictate that when a governing, but unelected, body like the planning department, makes decisions, the people must have recourse to some sort of means of appeal where a fair and impartial consideration of their dissent to those decisions can be heard. According to the reading of the legislation as the City and the developer see it, only when a property owner appeals to the Board of Variance can the public come to speak about the proposed development, and the property owner would only go to the Board if his initial plan is rejected, not if it’s approved.
Since we can’t abide by that hit-and-miss method of ensuring the public has proper oversight on this unelected body making decisions directly affecting them, then it must be so that people other than the property owner can legitimately launch appeals of permits, even if the City’s permit board has fully approved a plan by a developer. And, Creighton went on, since it is only a property owner, and not neighbours, who could conceivably suffer real hardship as a result of a permit decision, it therefore must also be so that even something suffered by those neighbours that is well short of hardship must still constitute a legitimate reason to strike up a valid Board of Variance hearing. Included in those reasons must be things like a community’s feeling of profound loss regarding a beloved, if unofficial, park.
Democracy in the balance
Submissions finished, finally, at 5 o’clock, after three full days. But the judge reserved his decision and it isn’t expected for weeks, if not months.
If he agrees that people other than the property owner can launch an appeal of an approved permit, then the Board of Variance hearing of last August 25, 2005, was legitimately struck, which means its findings are valid, which would mean its overturning of the permit stands, which would mean the Niebuhr construction plan for Salsbury Garden cannot proceed, and the people will have saved their park.
If, on the other hand, the judge decides that affected neighbours cannot launch an appeal of an approved permit, it means the people will no longer have any avenue open to them to provide a check on the power of the unelected, and highly powerful, planning department in the City administration, and it would mean that, at least on the level of neighbourhood development, democracy has been trashed. Or “quashed” as the legal beagles like to put it.
Just in case the City and the developer lose, the relatively new City Council, dominated by a cabal of right wingers traditionally very friendly to the City planning department and developers, last month fired en masse the entire Board of Variance, and replaced them with five puppets who likely won’t, as Baker said of the old Board of Variance, make the mistake of allying “themselves so close with the citizens” as to be “unseemly” and “crazy.”
The Republic will report the judge’s decision when it becomes available.
See previous articles on this issue in The Republic here, in chronological order:
One small victory for a park, and one giant leap for democracy, activism, and organization, September 1, 2005
A dangerous new tactic employed at Salsbury Garden, April 13, 2006
Mouse that roared faces the boot of City bureaucracy , June 8, 2006
The East Vancouver Salsbury Garden plot thickens , July 20, 2006
Vancouver City Council appoints five puppets to Board of Variance, July 25, 2006
|
