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  • Missing Middle, Revived


    Ross Crockford
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    Victoria’s new council pushes on with a controversial housing scheme. But would the process hold up in court, and will we get anything in return?

     

    ON ELECTION NIGHT, back on October 15, I got to play TV pundit on CHEK with Lisa Helps, and by 10 pm, Victoria’s departing mayor seemed relieved. The candidates she’d endorsed had won office—including councillor Marianne Alto for the mayoralty, and five brand-new councillors—all of whom had spoken favourably of her Missing Middle housing initiative during the campaign.

    As readers may recall, the Missing Middle initiative would permit three-storey houseplexes and townhouses on lots across the City of Victoria currently zoned for single-family homes. Some 148 residents, evenly split for and against, spoke to Council during a rancorous public hearing of the Missing Middle bylaws, held on August 4, and September 1 and 2. But on September 8, instead of voting whether or not to proceed with the bylaws, a 5-4 majority of the Council (Helps and Alto against) voted to “refer” the matter to their successors. So when I was on CHEK, I had to ask Helps a question.

    CROCKFORD: It looks like Missing Middle is alive and back on the table, and it will be interesting to see how quickly they bring that back up, and whether there’s any tweaking done to it. Maybe a procedural question for Lisa: the public hearings for that were extensive, but they were held in front of a different council. Now you’ve got a completely new council, do you have to hold new public hearings on it, or—?

    HELPS: I think so, yes, yeah. The bylaws will need to be given first, second reading again, and then a public hearing. But I think, Ross, you’re right, Missing Middle is now very much back alive, and almost all of the folks who are on—well, not all, there are a couple who came and spoke against it—but the majority of council came and spoke in favour of Missing Middle housing at the public hearing. So I think that bodes well for the future of the City and more inclusive neighbourhoods. (A clip of the broadcast is at https://youtu.be/L-hsEwIGVps.)

    Another public hearing? 

    Well, it seems Mayor Alto and the City’s entirely new Council are pursuing a different path to get Missing Middle approved.

     

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    On election night, Lisa Helps told CHEK that Victoria’s missing middle bylaws would need a new public hearing

     

    On December 8, at their final meeting before the Christmas break, Mayor Alto provided a “rise and report” from a closed Council meeting held on December 1. The new Council had voted, she said, “to continue the process commenced before the election and, once all new Council members receive [a] report on the public hearing, proceed with the Missing Middle Housing Initiative project as if current Council members heard the public hearing.”

    “The decision reflected in this rise and report speaks entirely to process,” Alto added. “It’s about the ‘How’ of the way this new Council will review and consider the bylaws that enable the so-called Missing Middle housing policies that were before the previous Council. There is no decision in this statement about the ‘What’ of the so-called Missing Middle housing policy. That decision of What, or Whether, Missing Middle housing policies move forward, or are amended, adopted, or referred—that decision is still ahead for this Council.”

    That wasn’t quite the end of it, though. Councillor Stephen Hammond—who had spoken against Missing Middle at the public hearing—introduced a motion to reconsider the December 1 decision, contending that “Our options, our reasoning and our vote should be in the open, for purposes of full transparency.” The Council then went into another closed meeting, to hear more legal advice. Forty minutes later, Alto delivered another rise and report, announcing that “no change was made to the previous decision on the process to further consider the Missing Middle housing initiative.”

     

    THE PROCESS AFTER a public hearing of bylaws is governed by section 470 of the Local Government Act. According to 470(2), “A member of a council” who is “entitled to vote on a bylaw that was the subject of a public hearing”—but wasn’t actually present at the hearing—may vote on the final adoption of the bylaw if they receive “an oral or written report of the public hearing” from an employee of the local government.

    This “report is enough” provision was created to prevent bylaws from getting gummed up due to changes or absences at the Council table. I couldn’t find any cases interpreting it directly; courts have only said that similar reports require “more than a mere statement” that “a certain party appeared at the public hearing and was opposed to the adoption of the bylaw.” But could such a report be relied upon by an entirely new Council, of which Marianne Alto was the only one who had to sit through the entire hearing? As one municipal lawyer explained to me, a council isn’t like Parliament, where unfinished legislation dies on the order paper at the close of every session. On the other hand, the provision’s singular language (“a member”) suggests it might be a stretch to use it for eight new Council members. (I asked the Ministry of Municipal Affairs for some guidance on interpreting this section; a spokesperson replied, “Ultimately, this is a decision for the local government to make.”)

    But proceeding by way of a written report isn’t likely what caused all the closed meetings. Instead, the big legal problem facing the City is that a lot has happened since the public hearing, and more happens with each passing day.

    As CFAX’s Adam Stirling has pointed out recently, Lisa Helps repeatedly told councillors not to publicly discuss Missing Middle or receive any new information about it outside of the hearing before casting a final vote on the bylaws. (“To preserve the integrity of the process, Council members cannot receive any information on this initiative, either verbally or written, from anyone, because the hearing is effectively closed,” Helps said at the end of the September 2 meeting, before setting a final vote for September 8.) She likely issued these warnings because she knew that courts have struck down land-use bylaws if the process to pass them violates principles of “procedural fairness,” and a council acts on information that wasn’t before the affected parties at the hearing. 

    A fact sheet published by the Union of BC Municipalities on public hearings provides further details. “After the hearing, the council/board, the council or board members, or committees may not hear from or receive correspondence from interested parties relating to the rezoning proposal. They can hear from their own staff, lawyers and consultants (Hubbard v. West Vancouver, 2005) but if they receive a delegation or correspondence they will be, in effect, reopening the hearing and will run the risk of having the bylaw quashed. Although a council or board is often tempted to pursue an outstanding or new issue after the hearing, the local government generally should not entertain new information or hear a party affected unless at a new hearing. The exceptions to this general rule should be considered carefully in the context of the circumstances of each case.” 

    I asked Mayor Alto about her predecessor’s comment that Missing Middle would need another public hearing.  “I really don’t know what to say to that, because I didn’t hear what she said and I don’t know why she said it,” Alto told me. “The only thing I can rely on is the current advice that we’ve had—we did get legal advice recently, as you know—and Council made the decision that it made based on that legal advice.” (I left a message on Helps’ cellphone to get clarification, but she didn’t reply. Two weeks after this article appeared, she said her comment was just part of a speculative discussion; see the update below.)

    The written report to the new councillors will be made public, Alto said, and they’re expected to review all the staff reports, emails, letters, video submissions and presentations made at the hearing. Alto said the new councillors have also been told they can’t receive new comments about Missing Middle from the public. “What the previous Council did—personally I think was the wrong decision, as you know, because I wanted it concluded that day [September 8]—it left the current Council in a position where it can’t receive new information, because the time for providing information has ended. So, for example, if you write to me now, and say, ‘Here’s my opinion about Missing Middle, and this is why,’ I’m actually not permitted to know that.”

    That advice hasn’t been followed rigorously, because some new councillors have had public discussions about Missing Middle since they were sworn into office on November 3. On November 8, Matt Dell spoke at the annual general meeting of the Gonzales Neighbourhood Association, and got an earful of complaints that big Missing Middle projects will denude Victoria’s urban tree canopy and reduce the value of neighbouring properties. (It’s a “huge issue,” Dell replied. “My worry about Missing Middle was that Victoria was going to be the only municipality doing it.”) Dave Thompson has held a number of coffee chats, and the day after one on December 5, a member of Homes For Living’s online housing-advocacy forum posted that he’d discussed Missing Middle and its timeline with Thompson. 

    Of course, no judge is going to beat up councillors for simply wanting to hear from constituents, and at least one court has said new information that wasn’t presented at a public hearing really has to be of a “technical or expert nature” to jeopardize a bylaw. But new, potentially “technical” information has come forward since September—including from BC’s new premier.

     

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    Marianne Alto welcomes the province’s new housing targets, which Missing Middle might help fulfill — and premier David Eby hints might be rewarded with infrastructure cash

     

    On November 21, David Eby announced his new Housing Supply Act, which gives the Province the powers to set housing-construction “targets” for fast-growing municipalities with the biggest housing needs, and to legally compel those municipalities to permit housing if they fall behind. At the press conference, then-housing minister Murray Rankin didn’t say which municipalities were on the Province’s Naughty list, but did cite a few that were already “great examples” of creating supply, including Victoria. (The City’s latest housing update says 1,503 net new homes proceeded to construction in 2021, well over the City’s own target of 1,000 per year.)

    Reporters at the press conference noted that Eby had said during his campaign for the NDP leadership that he would eliminate single-family zoning in urban areas and permit triplexes. Why were such measures missing from his announcement? “I remain committed to those, but there’s work that has to happen on many of those proposals,” Eby replied. That suggests his mandated rezonings aren’t coming any time soon—and Victoria, if it passes Missing Middle early next year, may serve as a unique showroom for housing types the NDP is reluctant to impose elsewhere.

    Reporters generally regarded the Province’s targets as punishments, but Mayor Alto saw them differently. “I really welcome this legislation today,” she said at the press conference. “The City of Victoria has already taken a number of very important steps to simplify building processes, and to accelerate the building of affordable housing. But we can’t do enough of it, fast enough, alone. We need the Province to support and push us, to push all local governments to build more and more affordable homes, in every neighbourhood in every municipality across BC.”

    The reasons for such enthusiasm weren’t immediately clear. But the next day, at a speech to the BC Non-Profit Housing Association, Eby hinted why municipalities would want to hit their targets: to tap into a new, still-undefined reservoir of infrastructure cash. “It comes down to a coordinated plan, working together, where your project is encouraged by the city, because it helps them meet the target so they can unlock funds from the provincial government for the things every community needs,” Eby told his audience. “For the swimming pools, for the trails, for the arenas, for the things that make communities great.” 

    If Victoria surpasses its housing targets, might the Province reward the City with a new Crystal Pool? 

    “Gosh, I hope so,” Mayor Alto told me, laughing. “That is my hope, and certainly that was the implication, you’re correct, but we haven’t heard any details, and I don’t think anyone else has either, about what that actually might look like.”

    Alto said she hoped the Province would pick Victoria for the first round of housing targets, because it would be an “easy win” for Eby. “We are one of the municipalities that’s very much on board with the need to create housing,” she said. “So I see Victoria as being an excellent example of what’s possible, and it’s my hope actually that Victoria will be one of the—however many, 10 or 12—beginning group of municipalities that he’s going to look for to see how this works.”

    It’s still unclear how the Province will select those municipalities. It says the housing targets will be developed “in consultation” with local governments, using their own data, which suggests resistant municipalities could argue they haven’t been growing much, and therefore don’t need more housing. (It’s also unclear how the targets will be applied regionally: if Victoria willingly signs on, do laggards like Saanich and Oak Bay get a free pass?) But given the City’s unique position at the forefront of Missing Middle, the mayor’s hope Victoria gets selected for Eby’s targets, and the prospect of provincial money for satisfying them—a prudent councillor might see all that as new information, justifying further consideration of the bylaws.

    Perhaps Lisa Helps was just being overly cautious when she said the City would need another public hearing on Missing Middle. But the previous Council, and evolving circumstances, have also created a situation where passing the bylaws without another hearing is legally questionable. One suspects the new councillors got advice in their recent closed meetings that speeding ahead could potentially leave them vulnerable to a court challenge—but the majority, emboldened by the fact that they spoke in favour of Missing Middle and got elected, voted to proceed without a new hearing anyway.

    That’s just speculation, of course. It’s up to citizens to demand a more complete explanation of what actually happened.

     

    UPDATE: On January 6, I spoke with Lisa Helps. She said the above article was “problematic,” and considered writing a letter to FOCUS in response, but didn’t. She told me she did not receive legal advice that another public hearing would be needed for Missing Middle. Though she undoubtedly knows much about the process of passing legally defensible bylaws from her eight years as mayor, she told me her election-night comment was just speculative “riffing,” to fill in a TV-panel discussion. The article has been edited accordingly.
    It sounds like the new Council may have considered another hearing: on January 3, Mayor Alto told CFAX the Council received “a number of options,” with “legal advice attached,” on how to proceed. So far, however, it seems the Council majority prefers to simply review the late-summer hearing, rather than reopen it—despite the ongoing emergence of new information that wasn’t before the public at the time. (In a December 30 interview with CTV, for example, premier Eby effectively confirmed that Victoria will be one of the municipalities selected to meet the Province’s new housing targets.) We should know more when the Missing Middle initiative comes back before the Council on January 26.

    Ross Crockford is a Victoria writer. This article is purely informational and is not intended to provide legal advice of any kind. No one should act, or refrain from acting, based solely upon the materials provided in this article without first seeking appropriate legal or other professional advice.

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