B.C. Court of Appeal ruling reveals that senior city staffers followed a script in rejecting 105 Keefer Street application

The City of Vancouver is the respondent in a legal fight with a Beedie company that began in 2017 over a proposed nine-storey condo project

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      One of the most contentious development-permit fights in recent Vancouver history occurred over a parking lot at 105 Keefer Street.

      In the latest chapter, Beedie (Keefer Street) Holdings Ltd. won a concession from B.C.'s highest court to let it file applications for judicial orders, These can be sought to force the city to produce documents and allow for the cross-examination of witnesses.

      The ruling noted that three top city staffers on the development permit board in 2017—Jerry Dobrovolny, Gil Kelley, and current city manager Paul Mochrie—all followed a script prepared by one of Kelley's underlings in rejecting Beedie's application.

      This revelation came in an appeal of an earlier B.C. Supreme Court ruling declining a full trial in Beedie's case against the City of Vancouver.

      It's unusual for a petitioner in a judicial-review application to be allowed to cross-examine witnesses. That's because these cases normally proceed by way of affidavit evidence.

      However, Beedie failed in its bid to convert its court petition under the Judicial Review Procedure Act into a lawsuit, which would involve a full trial.

      "As of yet, Canadian courts have not indicated a willingness to 'judicialize' administrative law by regularly allowing trials of the decision-making processes of administrative tribunals or, subject to existing exceptions, by expanding the scope of admissible evidence beyond the record in judicial review cases," wrote Justice Mary Newbury in a decision supported by two other B.C. Court of Appeal justices.

      In 2017, the city's development permit board voted 2-1 against the Beedie company's application for a nine-storey condo with retail and cultural space on the main floor.

      It was Beedie's fifth and final attempt to develop the property before taking legal action against the city. The company's efforts were vehemently opposed by Chinatown heritage advocates.

      Newbury acknowledged in her ruling that "the company stands to experience a considerable loss in terms of the decline in value of the subject property as a result".

      Jerry Dobrovolny, Gil Kelley, and Paul Mochrie all followed a script prepared by one of Kelley's underlings.

      Top city staff, not council, vetoed final application

      The recently appointed city manager, Paul Mochrie, was the only member of the development board to vote in favour.

      Two former senior staff members, Jerry Dobrovolny (now chief administrative officer at Metro Vancouver) and Gil Kelley (the recently departed general manager of planning, urban design and sustainability) voted against the application.

      The company wanted to develop 111 condos on a parking lot near the Chinatown Memorial Monument at Keefer and Columbia streets.

      In pursuit of that goal, Beedie paid a development application fee of $103,156 to the city.

      The Urban Design Panel recommended approval pending certain conditions. Those included reconsidering the design of the glazed massing and glazed divider units, and adding vibrancy to the colour choice.

      However, the Chinatown Historic Area Planning Committee refused to endorse the project. Its chair stated that a nine-storey market-housing project would contribute to gentrification.

      Ninety-five people later spoke at a raucous development board hearing.

      The development permit board refusal came after council had earlier voted against a rezoning application for a 12-storey building with 106 market condos and 25 social-housing units.

      The City of Vancouver has denied Beedie's allegation that the development permit board acted in bad faith.

      Two documents prepared

      According to the recent B.C. Court of Appeal ruling, Kelley asked Anita Molaro, then the assistant director of planning for urban design and development review, "to prepare two 'background' documents for the Board" in 2017.

      One set out reasons for supporting the application; the other explained why not to do so.

      These pro and con positions were voiced nearly word for word by the members of the development permit board.

      The B.C. Court of Appeal ruling stated that Molaro "understood she was preparing a 'script', given that she opened the 'Con Position' with 'One of the Board Members states...'  "

      There was no advance notice to Beedie that these scripts had been written.

      In 2018, city council passed a bylaw downzoning the property.

      "Discussions between Beedie and City officials nevertheless continued after a new mayor was elected in March 2019," Newbury wrote. "At a meeting that month, the new mayor expressed the hope that the impasse could be resolved."

      There were "informal meetings" held—and some involved Kelley and Mike Magee, a former Vision Vancouver campaign manager and the first chief of staff to former mayor Gregor Robertson.

      "According to an email sent by Mr. Magee, Mr. Kelley wanted to 'bring the project back to DP' and said he had 'suggestions on architects that could work with [Beedie] to bring something back in and would like to facilitate that happening.' " 

      Mike Magee, a former chief of staff to ex-mayor Gregor Robertson, tried to resolve the impasse between Beedie and the City of Vancouver.
      Charlie Smith

      However, Beedie managing partner Rob Fiorvento deposed that he had received less encouraging reports back from Magee and former city councillor Raymond Louie. These indicated that "there were no further avenues ahead in terms of specifics of what kind of new project would be potentially successful".

      Fiorvento also pointed out that 111 development permit applications similar to Beedie's had received the green light from the development permit board from 2012 to 2017.

      "He deposed that all but two of these applications had been approved and that all the approvals included conditions to be satisfied prior to the issuance of the permit," Newbury wrote.

      This document showing Anita Molinaro's script was included in the court decision.