Two one-century-old and classic East Vancouver workers’ homes were quickly reduced to rubble last week as Richmond housing developer Richard Niebuhr ignored an appeal of a surprising September BC Supreme Court decision, and ploughed ahead with his plans.

The court decision, handed down September 21, overturned a 2005 Board of Variance rejection of a City planning department permit awarded to Niebuhr. In the process, the judge found that the Board of Variance never did have jurisdiction to hear third-party appeals of development board permits, even though it had been entertaining such appeals for decades. An appeal of the BC Supreme Court decision has been launched by immediate neighbour Penny Street.

According to City Councilor Elizabeth Ball as well as the director of planning, Michael Scobie, the City had no choice but to issue Niebuhr a permit to demolish the existing houses and build two new duplex houses ahead of the deadline for the launching of an appeal, with the liability risk, should an appeal be filed and be successful, resting entirely on Niebuhr’s shoulders. The 2005 third-party appeal to the Board of Variance was originally launched by several concerned neighbours of the property, who called themselves Friends of Salsbury Garden, for whom it had become, over the decades, a beloved park and productive community garden. The property also contained two homes listed last year by the Vancouver Heritage Commission as number six on its endangered list. The homes were up for serious consideration as candidates for heritage protection because they are 1900s-era BC Mills pre-fabricated home kits that were popular for early-last century lower-income workers, and these two were the only remaining examples on Vancouver’s traditionally working class East Side.

After the Board of Variance heard the appeal and overturned the permit, the builder launched a challenge at the BC Supreme Court over the Board of Variance’s jurisdiction to hear the appeal in the first place. The City of Vancouver deployed City lawyers to intervene in the case—on the side of the builder, and against its own Board of Variance. The City lawyer, Patsy Sheer, argued that the Board of Variance should not have listened to neighbours talk about their emotional attachment to the unofficial park, and stated that by doing so, the Board members had tainted their thinking about the validity of the City’s permit to Niebuhr. Before the case was finished, and partly because of a perception that the City was running up legal bills on both sides of the court room in this case, City Council voted, in a closed-door session attended by members of the City’s planning department, to fire the entire five-member board immediately and to replace them with five new members of Council’s choosing. Two of the new members, including the new chair, are former NPA Councilors (the NPA currently enjoys a majority on Council); the three others are either former urban planners or have strong connections to the City planning department.

The fired Board of Variance members launched a BC Supreme Court challenge of their own against the City of Vancouver claiming there was no just cause for the firing of all five members en masse. The provincial government intervened in that case, deploying lawyers on the side of the City to argue that City Council did not need to show cause to fire any or all members of the Board of Variance. The City and Province won that case. The first act of the newly ensconced Board of Variance was to overturn an unrelated recent decision of the old Board.

Later, the Court also found in favour of the City and the builder and quashed the old Board of Variance’s opposition to the City’s permit to Niebuhr, a decision the new Board chose not to appeal.

In that decision, the judge surprised even City staff and members of City Council by finding that the legislation creating the Board of Variance never did allow for third-party appeals to the Board launched by neighbours affected by any planned destruction or construction in their community. The Board of Variance had long been counted on by City staff, the permit board, City Council, and members of the public as a last resort for affected neighbours to have input on decisions affecting their immediate communities. Staff, Council, and the permit board had long advised concerned neighbours to use the Board of Variance to launch their third party appeals of permit decisions, if they felt strongly enough about local issues.

The judge in this case found that a little-known process at the permit board, where potentially affected neighbours are mailed a notice of a permit application and are invited to inform the permit board of any problems they foresee with it, would be sufficient expression of community concern about developments. The permit board—comprised of City staff and planning department experts—is under no obligation to address concerns expressed to them, or to respond in any way. By contrast, the Board of Variance legislation stipulates that no City staff of any kind may sit on it, guaranteeing that it would be comprised of citizens without a direct interest in its own decisions.

After the court decision, the permit board re-issued the original permits to the builder, claiming that the court decision made it as though no Board of Variance hearing took place, despite the fact an appeal could still be launched that could reverse the decision, thereby re-affirming the old Board of Variance’s jurisdiction to hear the case, and therefore upholding it’s challenge to the permit as issued.

While the homes were being demolished, Richard Niebuhr told The Republic he had by now largely abandoned plans to build on the land and instead listed the property for sale, and he further revealed that he had arrived at an agreeable price for its purchase with the Vancouver Parks Board. Last year, when Friends of Salsbury Garden brought public attention to the park and the threat it was under, the Vancouver Parks Board decided to try to purchase the property to make its status as a park official. Niebuhr at that time turned down all offers and would not name a price. Sources say the Park’s Board offer price then was market-value, and reasonable.

Niebuhr further offered that the Parks Board requested that he tear the homes down, implying it was something of an informal condition necessary to the sale of the property. The Parks Board, though interested in converting the property into a park, was never enthused about keeping the two old houses on it, those with knowledge of the case revealed to The Republic. Niebuhr refused to show The Republic the document from the Parks Board with the potential offer price and with the request to destroy the houses, and nor would he say who at the Park Board he was communicating with, or who requested that he remove the homes.

While an appeal of the Supreme Court decision ending third party appeals at The Board of Variance proceeds, Niebuhr, within two weeks of destroying potential heritage houses and many of the most important trees in Salsbury Garden, has sold the property to a different developer (for a reputed $1.2 million—he purchased it just over one year ago for $700,000) and walked away from the carnage he wreaked. The garden is at present a bulldozed wasteland surrounded by construction fencing. Spencer Herbert, Parks Board commissioner, revealed at a recent COPE party policy meeting that the Parks Board remains hopeful it can still purchase the property to convert it into an official park.

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