November 2019

Residents take the City of Victoria to court for overriding its Official Community Plan.

(UPDATE: On November 22, the BC Supreme Court rendered its decision in this case. See the note at the end of this story.)

“I’M NOT AN ACTIVIST KIND OF GUY,” John Wells says. By day, he develops instrumentation for the high-tech sector. But this autumn, he put his name on a court action that could change how developments get approved by the City of Victoria, and potentially every other municipality in British Columbia. “I’ve never done anything like this before.”

In his case, the development in question is Rhodo, a set of 20 townhomes planned for two residential lots at 1712 and 1720 Fairfield Road, next to Hollywood Park, in the Gonzales neighbourhood. Aryze Developments first presented the project to neighbours, including Wells, in 2017. Though Aryze generated many letters of support for the project through their website, attendees at community association land-use meetings were almost universally opposed, arguing that Rhodo packed too many people into too small an area, it crowded the park and the sidewalk, and its boxy modern design didn’t fit the neighbourhood.

John Wells says the terms of the OCP constitute a public trust (Photo by Ross Crockford)

Victoria’s council approved Rhodo at a public hearing in August. A majority of speakers supported the project, and the majority of councillors (aside from Charlayne Thornton-Joe and Geoff Young) cited a need for diverse housing in the city and in the Gonzales neighbourhood, and claimed that increased density in such a walkable area, along a transit route, would help reduce climate change. But the neighbours didn’t accept those arguments. They got a lawyer’s opinion that the City had overstepped its authority, rallied to launch a court case to set aside the council’s decision, and Wells volunteered to become the face of the lawsuit.

The nub of their legal argument concerns the height of the development. Section 478 of BC’s Local Government Act says that all bylaws passed by a council — such as the rezoning bylaw for Rhodo — “must be consistent with” the municipality’s official community plan. In Victoria’s Official Community Plan or OCP, Gonzales is designated “traditional residential,” defined as consisting of “ground-oriented buildings up to two storeys” and multi-unit buildings up to three storeys on arterial roads. (Fairfield is designated a “collector” road.)

At the public hearing, Aryze and City staff said Rhodo was “2.5 storeys” tall, apparently because its top floor includes open-air balconies. Wells says Rhodo is three storeys. (The architect’s plans say it’s 11.14 metres tall, and a City planning document says residential construction between 9 and 12 metres equals three storeys.) “I deal with math a lot, and the equation for ‘up to two storeys’ is ‘less than or equal to two’,”. Wells says. “It’s not ‘around two’.”

Artist’s rendering of the controversial "2.5-storey" Rhodo project

City planners acknowledged the “up to two storeys” problem in their reports to councillors, but recommended Rhodo proceed anyway, noting that the OCP also contemplated a “range of built forms,” that the “appropriate scale” of a building was to be based on “an evaluation of the context,” and that the townhouses would advance the OCP’s broad objectives of diverse, transit-accessible housing.

Wells isn’t opposed to development; like any developer, he says, he just wants clear rules, and that means the City needs to respect the clear terms in the OCP. As he points out, Victoria developed its OCP between 2009 and 2011 with the involvement of some 6,000 residents, and in 2012, council enshrined the plan in a bylaw. “With this [Rhodo] decision they crossed the line, they violated the public trust, which is what the OCP is,” Wells says. “For me that’s the nucleus of this complaint.”

To finance the lawsuit, Wells has raised over $10,000 from more than 75 donors via gofundme.com — and in the process, he’s spoken with residents across Victoria who say they’re fed up with the City cherry-picking phrases from its policies to justify oversized developments. “I realized this isn’t isolated,” he says. “This has been going on for quite some time.”

IAN SUTHERLAND CAN SYMPATHIZE. As chair of the Downtown Residents’ Association’s land-use committee, he’s been battling City Hall over developments since 2011, and he agrees the OCP should be strictly interpreted. “It’s supposed to represent a contract between the council, the development community, and the citizens.”

Trouble is, the City keeps rewriting the contract, and frequently amends the plan for projects all over town. In May, Sutherland persuaded all of Victoria’s neighbourhood associations to add their names on a letter to Mayor Lisa Helps and council, calling on them and City staff to “follow best practices in land use planning by unequivocally upholding the Official Community Plan.” The City’s reply? “Zero. Not a peep,” Sutherland says. “It’s almost like they didn’t understand what I was talking about.”

Sutherland’s current headache is the City’s tendency to override the density provisions of the OCP. Density often gets described in floor-space ratios, but he says it’s really about whether a development will help or hurt the liveability of an area. A particularly egregious example for him is the proposal to gut the 1892-built “Duck’s Block” on Broad Street: the OCP says that historic part of downtown has a density limit of 3:1, but the planned hotel will have a density of nearly 5:1. “All those beautiful little courtyards and back alleys, they’re part of a low-density culture that will be rubbed out, because these developments soak up every square inch of dirt.”

Sutherland’s also been critical of the proposal for four towers at Cook and Johnson — one of which will include a new fire hall — noting that the project has an overall density of 6.8:1 in an area permitted only 5.5:1 in the OCP. At the project’s public hearing on October 24, City planning staff said they looked at a “balance” of considerations, and that inconsistency with any one policy in the OCP wasn’t enough to derail a proposal. Council agreed and approved the project — and in her comments, Mayor Helps said that she effectively considers parts of the OCP to be obsolete.

“One of the problems with the Official Community Plan, and the way that it’s used sometimes, is that it’s wielded as a shield against change,” Helps told the audience. “And I don’t think that’s right.” She was on an advisory committee for the OCP when it was being created, before she was first elected to council in 2011, and the OCP didn’t identify the concerns Victoria faces today. “If we had declared a climate emergency, and been in the middle of a housing crisis when we approved the OCP in 2012, it probably would’ve looked like a very different document. So our responsibility now is to look at the reality around us, and amend the document accordingly as needed.”

Wells’ case is slightly different: for Rhodo, the City didn’t even bother amending the OCP, which is a more complicated procedure under provincial law than rezoning, requiring a municipality to consult with “persons, organizations and authorities” that might be affected. (For an example of what’s involved, see Coquitlam’s manual for OCP amendments here.) Perhaps the City got lazy — or perhaps it passed on an OCP amendment for Rhodo because it believes the law is on its side.

In its filed response to Wells’ action, the City notes that section 471 of the Local Government Act says an OCP is “a statement of objectives and policies,” so the City considers it a “visionary” document that shouldn’t be strictly interpreted. Some judges have agreed: in 2011, BC’s Court of Appeal upheld Central Saanich’s subdivision of the Vantreight farm into residential lots, saying its rezoning bylaw was consistent with the various environmental and social goals in the OCP, and that the council acted reasonably by weighing various factors in its decision. But more recent BC court decisions say an OCP is a legal document, and when it imposes clear requirements, those should be followed.

The case will probably be heard in mid-December. Regardless of the decision, though, the issues will soon be tried in the court of public opinion as well. Laurel Collins, one of the councillors who voted for Rhodo, is now off to Ottawa, and the City will hold a byelection for her seat early in the new year. Judging by Victoria’s ongoing arguments over land use, neighbourhood-advocate candidates are sure to emerge.

Ross Crockford used to be a lawyer, but he’s feeling better now.

UPDATE: On Friday, November 22, the BC Supreme Court dismissed the Wells petition to strike down the City of Victoria’s rezoning bylaw for the Rhodo development.

Mr Justice Giaschi said Wells’s lawyers had failed to bring the petition to be heard within the two-month limit in Section 623 of the Local Government Act. He also said the bylaw was “consistent with” the City’s Official Community Plan, and the Council’s decision to pass it was sufficiently “reasonable” that it should not be struck down under the Judicial Review Procedure Act.

The judge noted that City staff and Council had actively considered the development’s compliance with the OCP, and sent the proposal back for revisions to satisfy the Plan. Although one part of the OCP did say a “traditional residential” neighbourhood only permitted buildings “up to two storeys” on collector roads like Fairfield, the judge said that clause had to be read “in conjunction with other parts of the OCP,” which allowed for a range of building types, and identified various goals, including increasing the supply of housing.

After the decision, Wells issued a statement on his GoFundMe page:

“The judge's decision does not mean that the OCP has no meaning, or that City Council can make whatever decision they want. What it does mean is that the courts will give City Council some leeway in how they interpret the OCP, which in this case, and in this specific location, includes 2.5 storeys in an ‘up to 2 storey’ area.

“During the hearing, the judge commented that if residents are not happy with how Council makes decisions, that is what elections are for. Therefore, if we are not happy with how much leeway this City Council seems to be taking with the OCP, we should be having that dialogue with our elected representatives, and future candidates, about why respecting the OCP is important.”

That dialogue is likely to get more heated. Last Thursday, Council directed City staff to come up with policies to increase “missing middle” housing, such as townhouses — and Mayor Lisa Helps announced that she effectively wants to eliminate single-family residential zoning across Victoria to get such townhouses built. (Start at 1:51:15 in the video of the meeting HERE.)

“I’d like to see us go at least as far as Minneapolis, where they have triplexes as of right,” Helps said. “I’d like to see fourplexes as of right. There was a big stir in the North America-wide planning community [last year] when the headline was that Minneapolis got rid of single-family zoning. From staff’s report it doesn’t seem quite that drastic, but I think we need to do more with the land that we have.”

Victorians, get ready for more Rhodos.