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Government
Civic democracy in the docket
A long running and important case of neighbours versus developers comes before the highest court in the land this Friday, and you play an important role just by being there
By Kevin Potvin
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Long-time readers of The Republic will recall a series of articles beginning in 2005 chronicling the apparent saving, then the surprising court-ordered demise, of Salsbury Garden, a private housing lot at the corner of Salsbury Avenue and Napier Street.
Over the course of a century, the corner lot had never been built on, instead evolving into a beloved, if largely unknown, park set about peacefully with tall cedars and a butternut tree, in addition to other unique species. In recent years, residents of the two historic BC Mills kit homes adjacent to the park created a community garden in the middle of the park and constructed a fine example of a cob house in the corner under the branches of the trees.
Then, beginning in 2005, the largely absent and uninterested owner of the property who had held it for some 50 years sold the lots containing the park and the two kit homes to a Richmond-based housing developer. The developer won a City of Vancouver permit to tear out the kit homes and the park and put up two duplex housing units.
Alarmed at the pending loss of the park and the two potentially heritage-listed homes, neighbours and lovers of the park formed the Friends of Salsbury Garden group and appealed the permit to the Board of Variance under their third party appeal rights.
The Board of Variance heard their case and decided to overturn the developer’s permit. Then the Vancouver Park Board made offers to buy the property from the developer to turn it into an official park. Things were looking great.
But the developer spurned all offers and instead challenged the Board of Variance’s right to overturn the permit at the BC Supreme Court. Surprisingly, not only did the City of Vancouver dispatch legal representation to the court to argue on the side of the developer and against the City’s own Board of Variance, but the Provincial Government also intervened, sending their lawyer to also argue on behalf of the developer.
In the midst of the court proceedings, Vancouver City Council fired en masse the whole five-member Board of Variance on the basis that they were allegedly causing too many cases to end up in expensive legal battles—the Salsbury Garden case being cited as the most egregious example. A second front in the battle opened up when the fired members of the Board challenged their firing at the same BC Supreme Court. They failed, and the new Board of Variance took its place.
Then, back to the first case, the judge came down with his shocking decision. Not only did he find the developer, the City, and the Province right to challenge the jurisdiction of the old Board of Variance (suggesting the old Board overstepped their bounds by just listening to neighbours), but he also found that the Board of Variance, as constituted by Provincial legislation some forty years earlier, and as had been its routine practice all the while, had no grounds to even entertain third party appeals to any permits granted by the City planning office, ever.
His permit reinstated by the overturning of the old Board’s decision, the developer proceeded to cut the trees down and bulldoze the historic homes, and then, surprisingly, he sold the property to another builder. Now two duplexes are completed and have been moved into.
This cub reporter always thought there was something fishy in how this builder, typically very busy people in this heated real estate market, seemed never to be impatient with the inordinate amount of court time he dutifully attended to see the process through to the bitter end. To see him reject what were rich offers from the Park Board also raised at least one eyebrow. Then to see that he only ended up selling the property after all was said and done only adds to what would be pure speculation about his true role in the affair, but unfortunately, speculation has no place in this paper.
And now comes the rest of the story!
The neighbour immediately adjacent to the property, Penny Street, consigned to the facts on the ground and the loss of the park, felt that the denial of third party appeals altogether struck down a much more important principle of local democracy. She applied for and attained “standing” to appeal the Supreme Court’s finding regarding the Board of Variance and its role as an avenue for citizens to launch third party appeals against planning board permits.
That case will begin in front of a panel of three Supreme Court judges Friday July 20 at 10 AM at the Court of Appeal, the highest court in the province, located at 800 Smithe Street. It is open to the public and it could be the last chapter in the story of Salsbury Garden.
One of the key questions the judges must weigh is whether the residents of Vancouver feel it is important to be able to launch third party appeals at the Board of Variance to challenge planning decisions made by City bureaucrats serving developers. They’ll never admit to it, but a packed courtroom would be important material evidence in the case.
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The Republic of East Vancouver masthead
The Republic of East Vancouver supports no party, advocates
for no cause, represents no group, serves no master, and considers
problems with no preconceived notions. We hope to afflict the comfortable,
both materially and intellectually, and comfort the afflicted—of
both kinds as well, and we are trying to do both things at the same
time.
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