A recent court ruling has affirmed the City of Vancouver's legal authority to grant temporary development permits in violation of the zoning bylaw.
A neighbourhood group called F.C.R.A. False Creek Residents Association filed a petition in court last year seeking a judicial order setting aside a decision by the director of planning on July 24, 2014.
On that day, Brian Jackson approved a three-year extension to a development permit for One West Holdings Ltd. (known as Concord Pacific).
Jackson's decision enabled the company to maintain a sales-presentation centre and a parking area on its northeast False Creek property between B.C Place Stadium and Science World.
The residents' group argued that the marketing centre was not in accordance with the zoning bylaw. That's because the bylaw restricts this site, part of what's known as Sub-area 9, to "park and recreational uses and customarily ancillary uses".
Therefore, FCRA lawyer Bob Kasting argued in court that the city had no authority to use Sub-area 9 for any purpose not allowed in the zoning bylaw.
Justice Robert Sewell dismissed this argument, concluding that Section 565 of the Vancouver Charter allows all provisions of the zoning bylaw to be overridden. However, the city must meet one of five tests laid out in the legislation.
The first of the five tests in the Vancouver Charter is that "enforcement would result in unnecessary hardship". This was the only ground that could be invoked in this case, according to the decision.
Sewell also rejected the residents' group's claim that Jackson failed to consider last year whether Concord Pacific would indeed experience "unnecessary hardship" had the extension not been granted.
"The evidence before me established that the Director of Planning considered substantially all of the material that had been before the Development Permit Board at the time it first approved the Development Permit and when it granted the first extension, the reasons for those decisions and the circumstances as they existed," Sewell wrote in his decision. "This record was capable of providing a basis on which the Director of Planning could reasonably have reached the conclusion that it would have caused Concord unnecessary hardship to relocate its presentation centre."
In the next paragraph, Sewell added: "I am satisfied there was material before the Director of Planning on which this individual could reasonably have concluded that enforcing the land use restrictions in the Zoning Bylaw would have caused Concord to incur expense without corresponding benefit to the City or its residents."
Ruling reviews history of the area
Sewell's decision noted that the north side of False Creek was traditionally a centre of industrial activities from the completion of the Canadian Pacific Railway in the 19th century to the 1980s.
The provincial government bought many properties in advance of hosting a World's Fair in 1986, later selling much of the land to Concord Pacific.
However, the judge noted, environmental contamination from previous industrial uses remained "a major impediment" to development of the site in the 1980s.
The city, province, and Concord Pacific then agreed to move contaminated soil from construction sites to areas that would later be designated as parks.
This would be done in phases as development proceeded over a long period of time.
The toxin-laden dirt would be sealed to prevent these contaminants from escaping into the natural environment.
"Sub-area 9 is one of the areas designated for soil placement and park use," Sewell wrote.
The judge's ruling noted that by 2014, only two areas of the Concord lands were left undeveloped: Sub-area 6C and Sub-area 9.
Park can't be built until another area is developed
Sewell pointed out that provisions of the zoning bylaw can by relaxed by the development permit board or the director of planning. This ability to act outside the zoning bylaw is possible "where literal enforcement would result in unnecessary hardship".
Meanwhile in 1984, the city created a new comprehensive development district for the north shore of False Creek, which encompassed all the lands later owned by Concord Pacific.
The False Creek Policy Broadsheets were created in 1988 by the city. They stated that interim uses "should be facilitated provided they are compatible with anticipated permanent uses, the shorelines and water experience and views across the water".
However, these interim uses required time limits and "should be moveable, low intensity, or low in capital investment", the judge noted.
The False Creek official development plan, which was approved two years later, "contemplated the extension of the existing Creekside Park into Sub-area 9". This is the park that runs from Science World north along the waterfront, stopping at the giant parking lots east of B.C. Place.
Complicating things even further is an agreement reached more than 14 years ago between the city, province, and Concord Pacific.
This deal enabled the B.C. government to move contaminated soils to Sub-area 9 (site of the marketing centre) from the Abbott Street outfall site, Sub-area 6A, and Sub-area 6C.
It's important to note that the three parties have not yet agreed on a Creekside Park soils relocation plan.
According to Sewell's ruling, the official development plan states that the Creekside Park extension will take place "in conjunction with the development of Sub-areas 6A or 6C, whichever is the last to proceed".
In 2005, the city granted a development permit to the company to build a temporary presentation centre on Sub-area 9. It opened in 2008, received a three-year extension in 2011, and another three-year extension in 2014.
Viaduct removal must come first
The future of the north side of False Creek will be transformed by the possible removal of the Georgia and Seymour viaducts.
Sewell stated in his ruling that the city has "advised Concord that it will not consider rezoning Sub-area 6C" until the future of the viaducts is determined.
"The viaducts are located in close proximity to the False Creek North lands," Sewell wrote. "The City commissioned a two-year study of that proposal, which was to be followed by a two-year detailed design and planning process."
Because Sub-area 6C still hasn't been developed, Concord Pacific has maintained that it can't legally turn Sub-area 9 into a park.
That's because contaminated soil from Sub-area 6A would have to be moved to Sub-area 9 to be buried and sealed before any future greenspace could be developed.