Wednesday, April 20, 2011

Court decision on the Vantreight Development

View from the Hill Project location
I have been waiting till the reasons for judgement in the case were posted online before commenting on the case. Citation: Residents and Ratepayers of Central Saanich Society v. Saanich (District), 2011 BCSC 491

Main Points of Interest in the Judgement
  • Bylaw1712 is legal
  • The development is in keeping with the OCP and brings many benefits sought by the OCP
  • The Regional Growth Strategy is not directly legally binding on councils.
  • An OCP is a policy document and not a legal straightjacket.   It is also not possible to meet all the objectives when considering individual development proposals.
  • Council, as the representatives elected by the community to govern, has a right to interpret the OCP and measure how a development meets, or does not meet, different objectives of the OCP
  • The court decision is a victory for local agriculture
The case was brought by the Residents and Ratepayers of Central Saanich Society against the District of Central Saanich to quash bylaw 1712 allowing the Vantreight Hill project development.  Bylaw 1712 is an amendment of Land Use Bylaw 1309.

The Residents and Ratepayers of Central Saanich Society asserted that the bylaw allowing the development was in contravention of the Official Community Plan.

Here is what is the core of the judgement - highlights are mine:
[37] I find it difficult to understand exactly what distinction there may be between a bylaw which is in “absolute and direct collision” with an Official Community Plan and one which is in the words of the Local Government Act is not “consistent with the relevant plan”. For the purposes of this application, I will consider whether or not bylaw 1712 is consistent with the Official Community Plan of the District of Central Saanich.
[38] Bylaw 1712 was passed in conjunction with a covenant concerning the Vantreight lands, and in my opinion it is appropriate when examining whether or not the bylaw was consistent with the OCP to consider the bylaw and the covenant together because the approval of the bylaw put in place the measures agreed to in the covenant. 
[39] The enactment of the bylaw and its accompanying covenant clearly achieved some of the objectives of the OCP including by:
1. consolidating the land actually suited for farming and further restricting it from any development which would remove it from agricultural uses;
2. creating park land;
3. creating public trails to be paid for by the development;
4. making available 25 acres of land for a public garden on a 25-year lease;
5. requiring the developer to provide water and sewage utilities at its expense;
6. requiring the residential building to conform to Energuide standards thus contributing to protecting the environment; and
7. granting the farmland a nuisance easement over the residential lots to facilitate adjacent farming operations. 
[40] None of the foregoing results can be said to be contrary to the Official Community Plan. Clearly, the nub of the objection is that 57 residential units, which all may have suites is in the petitioner’s submission too dense a development to be fairly characterized as rural. I note that there is no evidence the land to be built upon is suitable for agricultural use, nor is there any evidence it has been used as crop or pasture land. 
[41] Whether the development permitted by the bylaw is inconsistent with the concept of rural as set out in the District’s Official Community Plan is a matter of interpretation. An Official Community Plan is not drafted in the terms of a statute but rather, in terms of objectives and policies, which are necessarily much less specific than statutory terms. It is obviously not possible to promote each of the many objectives of the Official Community Plan equally in a single instance, therefore decisions applying that plan must involve the exercise of judgement in balancing various objectives in each case. 
[42] The Court in considering a bylaw passed by a municipal council is not dealing with an adjudicative decision by an administrative tribunal, but a decision by elected council members, who have concluded in the exercise of their judgement, how best to accommodate the various policies and objectives they must serve. This does not empower council to misinterpret the Official Community Plan but it does suggest that the court ought not to interfere with any reasonable interpretation consistent with the OCP. 
[43] The District of Central Saanich’s OCP was given third reading by Council October 20, 2008 and finally passed and adopted November 3, 2008. The 2008 Official Community Plan included the R-5 zoning which permitted a single family residence density of one house per .2 hectares in a rural area. Inferentially, the Council adopting the OCP accepted that the meaning of rural at the time of adopting the plan could include such a density. On December 13, 2010, after having considered the issue of whether the proposed residential development would fit in with the Plan’s rural designations, and having obtained covenants which clearly advance a number of the objectives of the OCP, Council passed bylaw 1712. This bylaw permitted more density than R-5 and was passed as R-5 Amended, but it limited the density to significantly less than permitted in the urban zones. In my opinion, having considered the plan itself, the staff recommendations and the benefits conferred by the covenant taken with the bylaw, Council was acting reasonably in passing bylaw 1712. I am not persuaded that bylaw 1712 is inconsistent with the Official Community Plan adopted by the District of Central Saanich and I dismiss the petition to quash the bylaw.
The judge clearly found that the development is in keeping with the OCP but more importantly that the OCP is a policy of council.   As a policy, though one with a legal framework to give it weight, Council has a right to make decisions based on their interpretation of the plan.  It is also clear that a council can not ignore an OCP.   Interestingly, he found that the CRD Regional Growth Strategy does not bind any council.

To make it entirely clear - Bylaw 1712 is legal and arguments saying it was not legal lost in the courts.

He also recognizes that the OCP is a long document and that it is not possible to meet all the objectives of the OCP in each single instance.    Clearly the whole process between the Council and Ian Vantreight was a negotiation of benefits for both parties that meet the objectives of the OCP.    The consolidation and covenant against subdivision of the agricultural land is the single biggest action taken to protect the rural nature of Central Saanich and protect farming in this region in decades.   This one action goes a very long way to meeting core objectives of the OCP.

I am glad to see that the judgement came out quickly and was entirely common sense.   I found the opposition to the Hill project irrational and the lawsuit little more another than a nuisance lawsuit designed to make the Vantreights and Central Saanich look bad.

From the start the whole objection has felt like an irrational anger against farming by suburbanites that moved into farm country.    Beyond the dislike of active agriculture, to me it felt like the opposition was politically motivated for ideological reasons.   The opposition seemed have a strong streak of people opposed to the idea of profit and people that are perceived to be on the right politically.

I am sure this will be a major election issue in the fall in Central Saanich.   I expect the council race to be mean and nasty against the council members that supported local agriculture.
Vantreight Irrigation Pond
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