The public and Council are told that they can rely on the expertise and impartiality of City staff to ensure that applications are being undertaken in compliance with all of the requirements under the Vancouver Charter and the City’s own established rules, policies and procedures.  In this instance, there was a complete failure to provide the duty of care owed by Staff to the Public, to City Council and to the City itself. 

 

Through Freedom of Information requests, we have uncovered serious mistakes in the process followed by City staff, while bringing 28 Floors (2538 Birch St.) to Public Hearing.  We have advised the Mayor, Council and staff of these errors, and the legal risks that they create.  Despite this, the City is still proceeding to Public Hearing. 

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On June 20, 2018, Council approved the Broadway Plan and Interim Rezoning Policy ("IRP").  This set into motion the development of a plan for the section of Broadway from Clark to Vine, in coordination with the Skytrain extension to Arbutus.  The IRP limits rezonings in the scope area during the planning process, in order prevent anything that might conflict with or impede the planning process.  It provides three special exceptions under which rezonings would be considered during the Broadway Plan, and detailed requirements that must be met in order to qualify for those exceptions (Exhibit 1).  

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The Interim Rezoning Policy, Policy 1, states that:

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“Where, at the time of adoption of this rezoning policy, there is an active rezoning application or where a recent application for rezoning advice has been received, and the applicant has received a written response stating that a rezoning application would be considered (within the past three years), the application will be considered.”

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Therefore, in order to qualify for an exception under Policy 1, the two possible conditions are:

• An active rezoning application, OR

• A recent application for rezoning advice (rezoning enquiry) AND the applicant has received a written response stating that a rezoning application would be considered.

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During discussion about the Referral Report for 2538 Birch St. at the Council meeting on June 9, 2020, staff gave factually incorrect advice to Council, and Council based its decision upon this misrepresentation when voting to refer the rezoning report to Public Hearing.  Staff responded to questions from Council stating, “...to your question this was an active zoning enquiry prior to the date so it does meet that test...” (Exhibit 2).  This confirmed that an application for rezoning advice (aka “Rezoning Enquiry” or “Enquiry”) had been received prior to June 20, 2018, the date on which Council approved the Broadway Plan and IRP, and by way of this answer, also confirmed that the Applicant had met the requirements of Policy 1 of the IRP. 

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In actuality, neither the rezoning application (received May 17, 2019), nor the application for rezoning advice (Exhibit 3) and the written response stating that a rezoning application would be considered (Exhibit 4), had been received prior to June 20, 2018.  The only application received by the City prior to June 20, 2018, in relation to this rezoning, was an application dated February 16, 2018, to participate as one of the first 20 projects in the Moderate Income Rental Housing Pilot Program (“MIRHPP”), (Exhibit 5).  The MIRHPP application was a preliminary step, not requiring the submission of any drawings and was not equivalent to the required application for rezoning advice (rezoning enquiry).  That application to participate in MIRHPP was initially rejected by the City on March 19, 2018, due to conflicts with the upcoming Broadway Plan. 

 

Click here to see the timeline of events

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Emails acquired through Freedom of Information (“FOI”) requests show that, at a Housing Leadership Meeting in April/May 2018, then Councillor Raymond Louie and the City Manager, Sadhu Johnston, challenged staff about "the interim rezoning policy and whether any sites that had proposed MIRHPP would be considered." (Exhibit 6).  On June 12, 2018, the Applicant for 2538 Birch St. was invited to participate in the MIRHPP (Exhibit 7).  One of the terms of that invitation was that the applicant had to submit “a formal application for rezoning advice (rezoning enquiry)”.  Per Planning correspondence, the Applicant submitted its rezoning enquiry on July 25, 2018, which was after the IRP was passed by Council on June 20, 2018.  Therefore, this application is subject to the Interim Rezoning Policy. 

 

Staff at the Council meeting on June 9, 2020, knew or ought to have known that the application for rezoning advice was received after June 20, 2018, and in representing the application as having been received prior to June 20, 2018, misled Council (Exhibit 8).  As a result, Council based its decision to proceed to a Public Hearing on an entirely inaccurate representation of the critical facts.  Councillors and, indeed, residents were told by staff that the requirements of the Interim Rezoning Policy had been satisfied, when this was indisputably not the case.

 

In correspondence received through FOI requests, staff wrote to Gill Kelley, attempting to assert that the letter sent to the Applicant by staff on June 12, 2018, “provided written confirmation that the proposal was selected to participate in the pilot program and conditional confirmation that a future rezoning application could be considered, subject to the proposal proceeding through the standard rezoning process” (Exhibit 8).  In fact, when staff responded to the Applicant on June 12, 2018, it was “regarding your pre-enquiry application for 1296 West Broadway under the Moderate Income Housing Pilot Program (MIRHPP)” (Exhibit 7).  This was a response to the Applicant’s MIRHPP Pre-Enquiry Application, inviting the Applicant to participate in MIRHPP, not a response to the Applicant’s Rezoning Enquiry. 

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Policy #1 does NOT contemplate the MIRHPP Pre-Enquiry Application process (Exhibit 2).  It specifically states that the “rezoning application or a recent application for rezoning advice and a written response stating that a rezoning application would be considered” must have been received before adoption, in order for Policy 1 to apply, and none of these things happened until well after June 20, 2018.  The June 12, 2018, letter does not state that a rezoning application would be considered.  The City’s response to the Applicant’s Rezoning Enquiry does state that a rezoning would be considered, but this was received on October 2, 2018 (Exhibit 4).  Moreover, the City clearly did not consider the MIHRPP Pre-Enquiry Application a substitute for the Rezoning Enquiry in 2018, since the June 12, 2018, letter instructed the Applicant to proceed through the standard Rezoning Enquiry process.

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Clearly, staff have “put its finger on the scale” in this matter, and sought to advance a project which, if approved, would set a significant precedent for the proposals put forward for the future development of the Broadway Corridor (Exhibit 9).  This contravenes the intent of the Interim Rezoning Process which states that,

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"Generally rezonings will not be considered in the Broadway Plan Study area while the Broadway Plan process is underway, in order to not pre-empt or divert the planning process with rezonings which set new directions or preclude options that could emerge during the process."  

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We have asked that Council delay the Public Hearing for 2538 Birch St. until such time as Council has the opportunity to investigate this matter and reconsider its decision in light of the facts disclosed herein.

 

Based on the information that we have uncovered, the City’s policies dictate that Council withdraw its referral to Public Hearing for the 2538 Birch St. rezoning, since it was based on the incorrect advice of staff.  Moreover, since the 2538 Birch St. rezoning application did not originally qualify for exemption from the Broadway Plan Interim Rezoning Policy, the rezoning should not be considered by City Staff or Council until after such time as the Broadway Plan is approved and the Interim Rezoning Policy is rescinded.

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Staff have significantly undermined the public’s confidence in the City and Council, and the safeguards which are purportedly there to ensure the interests of all parties are equitably represented.  In doing so, they have caused the integrity and fairness of the entirety of the City’s governance to be brought into question.

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