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Land use controls : flexibility and discretion Hughes, Willard Gerald 1982

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LAND USE CONTROLS - FLEXIBILITY AND DISCRETION by WILLARD GERALD HUGHES B.A. Univers i ty of A lber ta , 1973 A THESIS SUBMITTED IN THE REQUIREMENTS MASTER PARTIAL FULFILLMENT OF FOR THE DEGREE OF OF ARTS in THE FACULTY OF GRADUATE STUDIES SCHOOL OF COMMUNITY AND REGIONAL PLANNING We accept th is thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA October, 1982 © W i l l a r d Gerald Hughes, 1982 In presenting t h i s thesis i n p a r t i a l f u l f i l m e n t of the requirements for an advanced degree at the University of B r i t i s h Columbia, I agree that the Library s h a l l make i t f r e e l y available for reference and study. I further agree that permission for extensive copying of t h i s thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. I t i s understood that copying or publication of t h i s thesis for f i n a n c i a l gain s h a l l not be allowed without my written permission. Department of C<y**i/wuM»jft^  QL~JL VJU^O^SI P/<uwu^  The University of B r i t i s h Columbia 1956 Main M a l l Vancouver, Canada V6T 1Y3 Date 'QcA^o^r fe j ?Z, DE-6 (3/81) - i i -ABSTRACT Zoning has existed in North America since the ear ly 1900's and has evolved from the t rad i t iona l sel f -execut ing Euclidean zoning approach to the recent use of f l e x i b l e zoning techniques involving increased d iscret ionary judgement by delegated boards and o f f i c i a l s . This study examines the evolut ion and increased use of f l e x i b l e zoning techniques which afford greater opportunity for c rea t i v i t y and innovat ion, and allows for ind iv idua l ized treatment of projects compared to the t r a d i -t ional approach of pre-determined, r i g i d regulat ion which often inh ib i t s and responds poorly to changing public needs. However, because these techniques are more f l e x i b l e and decisions more discret ionary, they are more d i f f i c u l t to administer, have the potential for abuse, and involve greater public r i s k . The thesis examines the concept of administrat ive d i s c re t i on , and formulates a conceptual framework which i den t i f i es three preconditions which must be provided in a d iscret ionary zoning system in order to inform and control d iscret ionary judgements. F i r s t , a substantive basis is required comprised of two par ts : a) a tech-nical basis in standards; b) a pol icy basis in a comprehensive plan. Th i rd ly , procedural safeguards are required to prevent abuse, and increase openness and accountab i l i t y . The second part of the thesis examines the Ci ty of Vancouver land use control systemcwith respect to the nature and extent of administrat ive d iscre t ion and i t s re la t ionsh ip to the conceptual framework. I t reveals that wide d iscret ionary powers are granted to Vancouver boards /o f f i c ia l s (the Development Permit Board and the Director of Planning). The study concluded that the Vancouver d iscret ionary zoning system complies with the intent of the conceptual framework; however, major de f ic ienc ies in - i i i -the Vancouver l e g i s l a t i o n and process are i d e n t i f i e d . Comments and sug-gestions are offered towards compliance with the conceptual framework and achievement of planning ob ject ives. The study revealed that there is no universal answer to the question of what i s the optimum balance between f l e x i b i l i t y and cer ta in ty in land use regu la t ion. The two extremes of complete unfettered d isc re t ion or complete ri.gidi.ty are not des i red. Rather, what is needed is f l e x i b i l i t y with r es t r a i n t . Discret ion must e x i s t , yet i t must be part of a continuous comprehensive planning process which of fers substantive guidance and safe-guards, and is exercised by competent boards /o f f i c ia l s to whom decis ion making has been delegated. - iv -TABLE OF CONTENTS CHAPTER PAGE I Introduction 1 A. Objectives of the Study 2 B. Def in i t ions of Terms 3 C. Scope and Limitat ions of the Study 5 D. Methodology and Sources of Data 5 E. Organization of Study 6 II F lex ib le /D isc re t ionary Zoning - Evolution 9 and Conceptual Framework A. Rise of F lex ib le /D isc re t ionary Zoning . 9 B. Discret ion and Discret ionary Zoning Process 14 1. Discret ion and Administrat ive Adjudication . . . . 14 2. Process of Discret ionary Zoning 17 C. Substantive Basis and Procedural Safeguards for . . . . 21 Discret ionary Zoning Decision Making 1. Substantive Basis 21 a) Technical Bas is : Standards 21 b) Po l icy Bas is : Comprehensive Plan 22 2. Procedural Safeguards 24 D. Discret ionary Zoning and the Courts 26 E. Summary 28 _ v -PAGE III F l e x i b i l i t y / D i s c r e t i o n a r y Zoning - Techniques 32 A. Trad i t ional Techniques . . 33 1. The Variance 33 2. Rezoning (Spot Zoning) 34 B. Recent F lex ib le Techniques 36 1. Planned Unit Development (PUD) 36 2. Incentive Zoning 38 3. Performance Zoning 40 C. Summary 42 IV Case Study - Vancouver Discret ionary Zoning 45 A. Introduction 45 B. Prov inc ia l Enabling Leg is la t ion - Discret ion 46 C. Vancouver Leg is la t ion - Discret ionary Zoning 49 1. Introduction 49 2. Zoning and Development Bylaw 3575 . . 54 a) Descript ion of Leg is la t ion - Discret ionary . . 55 Zoning Administration b) Analysis of Legis la t ion - Discret ionary . . . . 60 Zoning Administrat ion c) Discret ionary and Tradi t ional Zoned Areas . . . 62 d) Discret ion and Discret ionary Zoned Areas . . . 65 3. Other Leg is la t ion 69 a) P o l i c i e s , Guidel ines, Plans 70 b) Development Permit Board and Advisory Panel . . 71 Bylaw 4876 4. Summary 71 vi PAGE D Vancouver Process • Discret ionary Zoning 75 1. Introduction 75 2. Development Permit Process 75 a) Flow Chart 75 b) Descript ion of Process 77 c) Analysis of Process 79 3. Summary 82 E. Conclusions 86 F. Summary . 93 V. Epilogue 96 BIBLIOGRAPHY 103 APPENDICES 106 Appendix I. Vancouver Charter; Sections 559-573 I I . Vancouver Zoning and Development Bylaw 3575; Section 3 I I I . Vancouver Zoning and Development Bylaw 3575; RS-1 D i s t r i c t Schedule IV. Downtown D i s t r i c t O f f i c i a l Development Plan Bylaw V. C i ty of Vancouver Plans, P o l i c i e s , Guidelines VI. Development Permit Board and Development Permit Advisory Panel Bylaw 4876 - v i i -LIST OF FIGURES FIGURE PAGE 1. C i ty of Vancouver, Tradi t ional and Discret ionary 52 (ODPs) Zoned Areas 2. C i ty of Vancouver, O f f i c i a l Development Plan Areas 53 3. C i ty of Vancouver, Development Permit Process 76 4. C i ty of Vancouver, Discret ionary Zoning Matrix 85 - v i i i -ACKNOWLEDGEMENTS I express my appreciat ion to facu l ty advisors B. Wiesman and W. T. Lane for the i r invaluable guidance and encouragement throughout the thes i s . I also extend grat i tude to the s ta f f of the Ci ty of Vancouver Planning Department for the i r ongoing assistance and cooperation in the case study. In pa r t i cu la r , I thank my wife Wendy and daughters Shannon and Jennifer for the i r ever present patience and support. - 1 -CHAPTER I  INTRODUCTION Zoning is the s ingle most commonly used legal device for regulat ing land use. Its o r ig in can be traced back to 19th Century Germany.1 Although there were examples in Eastern Canada and in New England of statutes r e s t r i c t i n g bui ld ing height, s i z e , and setbacks in the ear ly 1900s2, the o f f i c i a l s tar t of comprehensive zoning in North America was 1916 with the passage of a zoning bylaw for New York C i t y . Ear ly land use regulat ion was r i g i d , with neg l ig ib le opportunity for f l e x i b i l i t y and d iscre t ion in i t s administ rat ion. Such approach is referred to as Eucl idean, named after a 1926 Court decision estab l ish ing the v a l i d i t y of zoning in the U.S.A.3 Since then, however, zoning has changed and i t s administrat ion has become much more demanding and time consuming. The fami l i a r "as of r i gh t " or se l f -executing nature of the Euclidean zoning system has large ly been replaced.4 Rather than resolv ing most land use issues when the zoning bylaw is adopted with pre-determined regulat ions, more development issues are being decided at the time development is proposed. This allows opportunity for greater c r e a t i v i t y , innovat ion, and ind iv idua l ized treatment of pro jects . And because many of the tools are more f l e x i b l e , and the decisions more d iscre t ionary , i . e . judgment by publ ic o f f i c i a l s is involved, they are d i f f i c u l t to administer and involve greater publ ic r i s k . - 2 -A. Objectives of the Study This study examines the growing use of f l e x i b l e zoning techniques involv-ing increased d iscre t ion in the i r administ rat ion, and the delegation of author i ty to o f f i c i a l s . It also examines the necessity to control and inform th is d i sc re t i on , and in pa r t i cu la r , establ ishes precondit ions for the exercise of d i sc re t i on . These precondit ions, or the conceptual framework, are intended to minimize the potent ia l for abuse, and increase r a t i o n a l i t y and comprehen-siveness in decision making. The thesis w i l l also examine the C i ty of Vancouver's d iscret ionary zoning system with respect to the nature and extent of d iscre t ion granted the admini-s t ra t ion and the compliance with the conceptual framework establ ished ea r l i e r in the thes i s . The ob ject ives, then, are twofold. The f i r s t is to es tab l ish a conceptual framework for the proper exercise of d iscre t ion in a zoning system in order to minimize abuse, and provide a pos i t ive planning t o o l . The second is to determine Vancouver's compliance with such framework. Hopeful ly, the f indings of the study w i l l make a contr ibut ion to the small but increasing l i t e ra tu re on d iscret ionary zoning, and ra ise some issues which may ass is t the Ci ty of Vancouver in i t s approach to land use con t ro l . - 3 -B. Def in i t ion of Terms Several planning terms are used frequently throughout the thes i s , and may be open to mis in terpreta t ion. Consequently, these terms are defined at th is stage in order to better understand the complex and judgmental concept of d iscret ionary zoning. Discret ion - Indiv idual ized appl icat ion of administrat ive judgment which allows a var iable response and solut ion to a problem. F lex ib le Techniques - land use controls which permit wide development options through the exercise of d i sc re t i on . Discret ionary Zoning a f l e x i b l e land use control system whereby development approval occurs by permission and not by regu la t ion ; granted by an authori ty exerc is ing d i sc re t i on . Euclidean Zoning - The t rad i t i ona l as of r igh t or se l f -execut ing zoning in which regulat ions are e x p l i c i t and r i g i d ; administrat ive d iscre t ion i s neg l i g i b le . Negotiation - A process whereby a developer submits a proposal to publ ic o f f i c i a l s , and, in the ensuing process agreement i s reached on the precise nature of the development to be permitted; a primary element of d iscret ionary zoning. Outright Zoning -- 4 -uses and development standards which are determined in advance and s p e c i f i c a l l y authorized in a bylaw and require mandatory compliance. Condit ional Zoning d iscre t ion authorized by express provis ion granting permission to depart from the general provis ions of a zoning bylaw. Comprehensive plan a ser ies of documents set t ing for th po l i c i es for the future of the community which taken together cover a l l of the c r i t i c a l considerations in physical development. Po l icy Broad statements of object ives of a publ ic body that form the basis for enacting l eg i s l a t i on or for making dec is ions. Standards - spec i f i c quant i tat ive development regulat ions such as lot area, frontage, yards, densi ty, parking, performance standards. Guidelines - in terpret ive statements intended to help generate a unique so lu t i on ; may be a mixture of narrow standards and broad po l i cy . - 5 -C. Scope and L imi tat ion of the Study This study of land use control i s focused on d iscret ionary zoning and in pa r t i cu l a r , on the controls and l im i t s to d iscre t ion necessary to enable d iscret ionary zoning to be a pos i t i ve regulatory device. It must be noted, however, that a d iscret ionary zoning system r e l i e s on the ent i re planning process in support of i t s administ rat ion. As a r esu l t , the thesis w i l l delve into several areas of planning, but often only s u p e r f i c i a l l y because of the vastness and complexity of related elements. The emphasis i s on administrat ive d i sc re t i on , exercised by o f f i c i a l s /boa rds exerc is ing powers delegated by a l e g i s l a t i v e body. The study, however, recognizes the frequent d i f f i c u l t y in d i f f e ren t i a t i ng among l e g i s l a t i v e , adminis t rat ive, and quas i - j ud i c ia l act ions, even by delegates of such powers. D. Methodology and Sources of Data The conceptual framework was formed from an extensive review and synthesis of planning and legal l i t e ra tu re on land use con t ro l , with emphasis on innovations and f l e x i b l e techniques involving administrat ive d i sc re t i on . The bulk of the l i t e ra tu re was from the U.S.A. but the di f ferences in planning and zoning l eg i s l a t i on between Canada and U.S.A. is recognized. - 6 -Resources f o r the Vancouver case study came p r i m a r i l y from the C i t y a d m i n i s t r a t i o n , p a r t i c u l a r l y the Planning Department. Information was gathered from t h e i r planning l i b r a r y and f i l e s , r e p o r ts to C o u n c i l , personal interviews with p r o f e s s i o n a l and t e c h n i c a l planning s t a f f , members of boards, a C i t y lawyer, and from attending Development Permit Board and Board of Variance meetings. Extensive review was given to the p r o v i n c i a l Vancouver Charter and C i t y of Vancouver Zoning and Development Bylaw. The nature of the study d i d not n e c e s s i t a t e the use of resources outside the C i t y a d m i n i s t r a t i o n . E. Organization of Thesis Chapter I introduces the t h e s i s , e s t a b l i s h e s the context and o b j e c t i v e s of the study. It d e f i n e s important terms, the scope and l i m i t a t i o n s , and describes the or g a n i z a t i o n of the t h e s i s . Chapter II examines the increased use of f l e x i b l e zoning techniques i n v o l v i n g c o n s i d e r a b l e a d m i n i s t r a t i v e d i s c r e t i o n . The basic elements of d i s c r e t i o n are reviewed, and the need f o r l i m i t s and c o n t r o l s on d i s c r e t i o n i s i d e n t i f i e d . A conceptual framework i s e s t a b l i s h e d i n Chapter II r e q u i r i n g three p r e c o n d i t i o n s to the e x e r c i s e of d i s c r e t i o n a r y zoning to minimize p o t e n t i a l f o r abuse, and to provide the maximum p u b l i c b e n e f i t . The response of the Courts to the d i s c r e t i o n a r y zoning i s also examined. Chapter III examines f i v e f l e x i b l e zoning techniques which involve the ex e r c i s e of varying degrees of d i s c r e t i o n . T r a d i t i o n a l techniques examined are the zoning variance and the rezoning. Recent f l e x i b l e techniques include - 7 -Planned Unit Development (PUD), incent ive zoning, and performance zoning. The re la t ionsh ip of these techniques to the conceptual framework is also analyzed. Chapter IV is the case study of the Ci ty of Vancouver's land use control system which grants considerable d iscre t ion to b o a r d s / o f f i c i a l s . This chapter reviews the Vancouver system against the conceptual framework establ ished in Chapter II and draws relevant conclusions. Chapter V is the f i n a l chapter which synthesizes the f indings of the thesis and integrates the conceptual framework and case study of Chapter IV. Direct ions for further research are discussed. - 8 -Footnotes CHAPTER I 1. B. Wiesman, "Land Planning and Development", Course, Faculty of Commerce, U.B.C. , Vancouver, 1972, p. 53. 2. Kent Gerecke, Robert McCrea, et a l , "Toward a New Canadian Zoning", study, Univ. of Waterloo, 1974, p. 3. 3. V i l l age of Eucl id (Ohio) V. Ambler Realty Co. , 272 U.S. 365, 47 S . C t . , 114 (1926) 4. Michael Meshenberg, "The Administrat ion of F lex ib le Zoning Techniques", ASPO, Planning Advisory Serv ice, Report No. 318, 1975, p . l . - 9 -CHAPTER II FLEXIBLE/DISCRETIONARY ZONING - EVOLUTION AND CONCEPTUAL FRAMEWORK This chapter begins in Section A by comparing t rad i t i ona l Euclidean zoning to the more recent d iscret ionary zoning techniques, and examining the response to the increased use of the l a t t e r . Section B then examines "d i sc re t i on " in i t s basic administrat ive elements, followed by a review of the d iscret ionary zoning process. The exercise of administrat ive d iscre t ion po ten t ia l l y opens the system to abuse and a rb i t ra r iness . To minimize the potent ia l for abuse, but yet maintain d iscret ionary zoning's pos i t ive elements such as f l e x i b i l i t y and c r e a t i v i t y , i t i s necessary to estab l ish a substantive basis for the exercise of d iscre t ion and to impose procedural safeguards. Three prerequis i tes for d iscre t ion are discussed in Section C. Section D b r i e f l y examines the Court 's response to d iscret ionary zoning techniques, followed by a chapter summary in Section E. A. RISE OF FLEXIBLE/DISCRETIONARY ZONING The c r i t i c s of t rad i t i ona l r i g i d Euclidean s ty le zoning question both i t s performance and basic foundation. C r i t i c s charge that : 1. It can be misused to permit destruct ion of valuable h i s t o r i ca l s i tes and resources. 2. It leads to design monotony. - 10 -3. It bears l i t t l e re la t ionsh ip to r a t i ona l l y developed publ ic plans and p o l i c i e s . ^ 4. It decides too much too soon - before there is a ra t iona l basis for determining how land should be used.2 5. It is the t a i l that wags the planning dog.3 6. It establ ishes a r e l a t i v e l y f ixed approach to land use design while development factors cont inual ly change.4 7. It t y p i c a l l y takes a negative approach - can only r e s t r i c t and prohib i t .5 8. It is in c o n f l i c t with r e a l i t y - the system prescribes to a s ta t i c end state concept of land use con t ro l . ° 9 . It is based on the un rea l i s t i c assumption that the " ideal c i t y " is a pattern of contrast ing d i s t r i c t s that r i g i d l y separate incompatible u s e s . 7 In e f fec t , the c r i t i c s assert that the whole system is outdated and that i t i s incapable of dealing with the complex and often-competing s o c i a l , economic, and environmental issues surrounding urban land development. It was o r i g i n a l l y expected that the zoning ordinance would determine in advance how a communities land would be used and developed, and that publ ic debate and formal adoption of the ordinance would minimize the need for d iscret ionary judgments in i t s administ rat ion. However, i t has not worked out in the neat, order ly and e f f i c i e n t manner ant ic ipated. John Reps recognized that zoning had abandoned many of i t s p r i n c i p l e s , and that "we have unnecessari ly prolonged the existence of a land use control device conceived in another e r a " . Reps asked "would i t not be desirable to construct a system of development controls in which informed d iscret ionary judgment plays the dominant or at least a larger ro le?" He went on to suggest such d iscre t ion should be guided by a community plan and a set of development standards and object ives.8 - 11 -Reps also addressed serious objections which may be raised against d iscret ionary zoning - claiming the "new approach" v io la tes the cherished pr inc ip les of cer ta in ty and p r e d i c t a b i l i t y that are supposed to be v i r tues of the present system of d i s t r i c t s , use l i s t s and elaborate development standards. r Reps responded that : "This theory, however, is deeply undercut by the multitude of zoning amendments, improper var iances, specia l exception permits, f l oa t i ng zone approvals, and unenforced v i o l a t i ons . What remains is the structure of cer ta in ty without the substance - a mere facade of respectable pred ic t -a b i l i t y masking the pract ice of unguided administrat ive and l e g i s l a t i v e d i sc re t i on . Would a system such as I have proposed, with d iscret ionary judgments f i rm ly based on an o f f i c i a l plan serv ic ing as Haar's "impermanent cons t i tu t ion" and guided by stated development goals and standards, fundamentally reduce the degree of cer ta in ty that now preva i ls? I submit that i t would not, and that i t would be more honest to present the meat of r e a l i t y rendered of i t s semantic fa t ."9 The inc lus ion of d iscret ionary authori ty in local land use control systems has increased tremendously. However, i t is s t i l l a long way from an order ly , organized system. What ex is ts now is the widespread use of "wait-and-see" techniques that provide communities with an opportunity to make f i n a l development decisions at the time development occurs. To the "o ld " f l e x i b l e techniques such as variances and rezonings have been added many new devices to meet special development considerat ions. These include incent ive (bonus) zoning, impact zoning, f l oa t i ng zones, over lays, PUD, TDR, etc - each f l e x i b l e device allows considerable d iscret ionary authori ty to delay or respond to development which i s about to occur and to speci fy in deta i l how such development is to occur. The extent of f l e x i b i l i t y - 12 -and administrat ive d iscre t ion var ies widely among techniques and j u r i s d i c t i o n s . Increasing governmental d iscre t ion is a s ign i f i can t administrat ive departure from the old sel f -execut ing or as-o f - r igh t zoning system. They key ingredient of th is approach is i t s f l e x i b i l i t y . Because many of these tools are more f l e x i b l e and decisions more d iscre t ionary , i . e . judgment by publ ic o f f i c i a l s is involved, they are d i f f i c u l t to administer and involve greater publ ic r i s k . The increasing re l iance on d iscret ionary land use controls can be at t r ibuted to many fac to rs . Fishman iden t i f i es f i ve fac to rs : 1. Disi l lusionment with t rad i t i ona l techniques that l im i t development opt ions; 2. Larger scale of land development involving complex in te r re la t ionsh ips ; 3. Land use controls are expected to meet wider publ ic ob jec t ives ; 4. A greater sophis t ica t ion of a l l actors in the development process; 5. A f l e x i b l e system is necessary to work within an evolving several t i e r system of land development con t ro l .1° The trend toward f l e x i b l e d iscret ionary zoning techniques has received a mixed response. Those who favour d iscret ionary zoning controls over t rad i t i ona l as -o f - r igh t system argue: they permit the land use control process to be more responsive to complex s o c i a l , economic, and environmental object ives and problems; they permit wider u t i l i z a t i o n of the most appropriate planning and development methods in a given s i t ua t i on ; they increase opportunity for the use of cost-saving development methods; - 13 -they more read i l y permit the implementation of special community object ives such as increased housing opportunity or protect ion of environmentally sens i t ive areas; they may open up the administrat ive process to c loser publ ic scru t iny ; and they are much better suited to the larger scale at which most f r inge area development occu rs .H Others express strong reservations about the a b i l i t y of local government to administer d iscret ionary controls wisely and see serious dangers in the i r growing use. Concerns inc lude: the secrecy attending most negot iat ions, which opens up the p o s s i b i l i t y of , or at least charges of , deal making, br ibery, and ex to r t ion ; a l legat ions that communities make arb i t ra ry and excessive demands of developers and, conversely, that developers can often put things over on unsuspecting communities, whose c i t i zens must then bear the resu l t ing cos ts ; the i n a b i l i t y to predict l i k e l y development and hence the i n a b i l i t y to plan and program future publ ic cos ts ; the uncertainty of present residents about what w i l l be bu i l t nearby and i t s ef fect on the i r taxes; and the opportunity to exercise de facto exclusionary po l i c i es under the guise of cooperation.12 The answer to these reservations about d iscret ionary controls does not l i e in abandoning them. The benefi ts from the f l e x i b l e techniques are considerable. They key is to assure that a so l i d basis and adequate safeguards ex is t in the use of d iscret ionary cont ro ls . This w i l l be discussed in Section C of th is chapter. - 14 -B. DISCRETION AND DISCRETIONARY ZONING PROCESS This section is divided into two par ts . Part one examines d iscre t ion and administrat ive adjudicat ion, in i t s basic elements, from the perspective of two legal scholars . Part two discusses the process of d iscret ionary zoning, and in pa r t i cu la r , negot iat ion. 1. Discret ion and Administrat ive Adjudication D iscre t ion , in i t s legal sense, may be defined as: "the la t i tude of decision within which a court or judge decides questions ar is ing in a par t i cu la r case not expressly contro l led by f ixed rules of law, according to the circumstances, and according to the judgment of the court of judge."13 Or, more simply, d iscre t ion is "an ind iv idua l ized appl icat ion of admini-s t ra t ive judgment which allows var iable response and solut ion to problems evolving from changing c o n d i t i o n s " ^ An administrat ive body is said to possess d iscret ionary power when a choice of solut ion to a given s i tua t ion i s allowed or provided for in law. Such is the case in most administrat ive bodies in the municipal planning se t t i ng . A doctoral thesis by E.D. Fo l l i c k en t i t l ed "The Element of Discret ion Inherent in Administrat ive Adjudicat ion" (1969) examines the far reaching impl icat ions of d iscre t ion inherent in administrat ive ad jud ica t ion . * 5 Fo l l i ck - 15 -concludes that with the l e g i s l a t i v e , execut ive, and j u d i c i a l aspects of government fused into the administrat ive un i t , the p o s s i b i l i t i e s of d iscre t ion in each phase of administrat ive action are considerable. He goes on to say that f l e x i b i l i t y is of the essence to p rac t i ca l and meaningful regulat ion demanded of modern government, and that d iscre t ion plays a v i t a l ro le in such adaptab i l i t y . Fo l l i c k states that d iscre t ion accorded an administrat ive agency must have guidel ines and procedural safeguards. The l eg i s l a tu re , in delegating power authorizing d i sc re t i on , must c l ea r l y del ineate the condit ions and circumstances in which the administrat ive d iscret ionary power i s to operate. However, the leg is la tu re should not grant complete d iscre t ion to an admini-s t ra t i ve agency which would en t i re l y circumvent the l e g i s l a t i v e process. He goes on to say that the leg is la tu re should not s t ipu la te that the administrat ive adjudicat ive process contain the least d iscre t ion poss ib le , for undue res t r i c t i ons would deny administrat ive operation of the creat ive and adaptable stance intended for r e a l i s t i c solut ion of diverse and spec ia l ized problems. Fo l l i c k stresses that both the rule-making and adjudicat ive agencies are contro l led through statutory requirements of the leg is la tu re and by j u d i c i a l review of procedures by the courts reducing the potent ia l for abuse. The d isc re t ion inherent in administrat ive adjudicat ive allows an agency to formulate diverse po l i c i es commensurate with the object ives of the governing l e g i s l a t i o n . The courts have requested the administrat ive t r ibunal to evolve - 16 -procedures and po l i c i es from the statutory d iscre t ion granted, rather than to re l y on questionable legal precedents from the courts which have unknown a p p l i c a b i l i t y . The evolut ion of generalized procedures boundarizes d iscre t ion for the guidance of future conduct. F o l l i c k ' s point here can be applied to the use of d iscret ionary zoning techniques and the need for procedural safe-guards and a substantive basis for decision making in order to "boundarize" d i sc re t i on . Fo l l i c k bel ieves that the larger issue of administrat ive d iscre t ion is not a matter of standards, but rather that d iscret ionary action must be subject to st ipulated safeguards in order to insure fa i rness and due process in agency ac t ion. The presence of safeguards does not prevent d isc re t ion with respect to the substance of the agency proceedings, but rather ensures natural j u s t i c e . Fo l l i c k concluded that the explorat ion of the many phases of administrat ive d isc re t ion reveals the necessity for f l e x i b i l i t y and adaptab i l i t y on the part of agency technique and organizat ion. The times and technological change simply demands i t . J . L. Jowell in "Law and Bureaucracy" (1976) examined the merits and defects of law to control administrat ive d i s c r e t i o n . 1 6 His f ind ings , in general , were that such legal techniques are often mixed blessings and that the i r benefi ts from the bureaucracy's perspective were frequent ly of fset by the i r burdens from the perspective of some or a l l of the bureaucracy's c l i e n t e l e . - 1 7 -He found that ru les could provide for r e l a t i v e l y uniform appl icat ion and cer ta in ty . Rules could also encourage administrat ive i n teg r i t y by inh ib i t i ng a rb i t ra r iness . On the other hand, the existence of a " ru le " does not guarantee i t s qua l i t y , f a i rness , or generosity. The seeker of " i nd i v idua l i zed" j us t i ce may resent being placed in a category shie ld ing decision makers from considering unique circumstances. The by-product of cer ta in ty and uniformity i s f requent ly legalism and r i g i d i t y . Jowe l l ' s f indings can by applied to the planning context where Euclidean zoning was the " ru le " and provided uniformity and cer ta in ty . However, Euclidean zoning was seen as unacceptable and consequently, d iscret ionary zoning with " ind iv idua l treatment" is viewed as a v iable subst i tu te . 2. Process of Discret ionary Zoning F lex ib l e zoning techniques involve more than the t rad i t i ona l determination of compliance by an administrat ive o f f i c i a l . While they vary in procedural complexity, each requires some evaluation by local o f f i c i a l s before approval i s granted; and many require extended negot iat ions. A considerable element of administrat ive d iscre t ion enters the p ic tu re . The in jec t ion of d isc re t ion necessitates more stages in the approval process. Substantial professional s k i l l s are needed, and more publ ic bodies - 18 -become involved in making dec is ions. And often due to extended negot iat ions, increased time is required compared to the administrat ion of conventional regulat ions. Negotiation i s a bargaining process. There are three basic in terest groups involved in th is process: 1. land owner/appl icant/developer/consultants; 2. publ ic review authori ty - planners, and elected o f f i c i a l s , agencies of loca l governments; and 3. general publ ic .1? It is the f i r s t two groups which d i r ec t l y par t ic ipa te in the negot iat ions, pa r t i cu l a r l y the planner and appl icant . The general publ ic is general ly afforded an opportunity to be heard at publ ic hearings. A key issue in negotiat ions is the need to maintain an open process within defined gu ide l ines. The give and take of bargaining may lend i t s e l f to one side t ry ing to take advantage of the other: "It is a human process which p i t s personal i t ies against one another, and the stronger party usual ly wins."18 However, the negotiat ion process ra ises some important questions as to who gets to talk to who, about what and when. Statutory and common law rules of procedure usual ly provide that decisions are made only af ter a publ ic hearing at which a l l interested part ies have a chance to present the i r case. Rules of natural j us t i ce must not be ignored. Sensi t ive negot iat ions, however, do require some privacy - but privacy can go too f a r . Unnecessari ly r e s t r i c t i v e l im i ta t ion on the negotiat ion process might e f f ec t i ve l y preclude - 19 -use of many f l e x i b l e techniques. A balance needs to be sought between protect ing the r ights of a l l par t ies and recognizing the way the process works. Meshenberg out l ines the fol lowing procedural gu ide l ines: 1. The minimum amount of negotiat ion should occur in p r iva te . Minutes should be taken of negotiat ing sessions. 2. The negotiat ion process should be separate from the decision making process. Decision makers should not take part in negot iat ions. 3. The publ ic hearing should be a meaningful rather than pro forma publ ic par t i c ipa t ion to assure the publ ic that decisions are not made in advance.19 Meshenberg goes on to say that even with the most ca re fu l l y drafted ru l es , not every community is able to bargain e f f ec t i ve l y in the publ ic in te res t , or , more broadly, to administer the new d iscret ionary cont ro ls . He says that the e f fec t i ve negotiator should demonstrate the fo l low ing : 1. Competence (experienced and sophist icated) 2. Professional ism (recognize and protect publ ic in terest) 3. Eth ica l behaviour (non discr iminatory) 4. Comprehensiveness (wide view). 5. Knowledge of regulat ions (understand intent of regulat ions and p o l i c i e s ) ™ Babcock examines the zoning process, pa r t i cu l a r l y the control of d iscret ion.21 He states that f i r s t l y , nothing is so important to a successful scheme of land use regulat ion as d iscre t ion in i t s administrat ion. Secondly, - 20 -nothing is more subject to destruct ive abuse than that administrat ive d i sc re t i on . The remedy, according to Babcock, is not to take the d iscre t ion away, but rather to so inform and control i t as to make i t a pos i t i ve t o o l . Babcock's view i s that many of the innovations, dealing with new procedures, techniques, and re l iance on the "p lan" are not the key elements. Babcock states that one must accept that zoning is essen t ia l l y p o l i t i c a l in nature, and the ideal of zoning implementing a long term comprehensive plan i s a " v i r t ua l imposs ib i l i t y " . Therefore, he states that reform should neither overly stress comprehensive planning nor el iminate d i sc re t i on , but rather that "when the pr ivate sector proposes a change, the d iscre t ion to grant or deny i t be exercised openly, honestly, and on the basis of as thorough an inquiry and as f u l l a pa r t i c i pa -t ion as poss ib le . " Babcock concludes by emphasizing his support fo r procedural fa i rness over the "p lan" by saying: "If the system can assure the free interplay of the diverse interests and can encourage compromise and accommodation among the diverse in te res ts , then there i s much less need to be concerned with plans, regulat ions, and procedures that seek to l im i t a r t i f i c i a l l y the d iscre t ion of those entrusted with the zoning power."22 This sect ion examined d isc re t ion from both the scholar ly and d iscret ionary zoning process perspect ive. F indings, in general, are that the use of administrat ive d i sc re t i on , and d iscre t ionary zoning in pa r t i cu la r , w i l l have pos i t i ve resu l ts i f i t i s contro l led and informed. Approaches to cont ro l l ing/ in forming d iscre t ion w i l l be examined in the balance of th is chapter. - 21 -C. SUBSTANTIVE BASIS AND PROCEDURAL SAFEGUARDS FOR DISCRETIONARY ZONING  DECISION MAKING The d iscret ionary exercise of development control takes place between the extremes of r i g i d t rad i t i ona l zoning schemes and the to ta l absence of regula-t i ons . It is c lear that d iscre t ion cannot be t o t a l ; landowners need to have some reasonably c lear idea of what the community is l i k e l y to accept; and publ ic o f f i c i a l s need to be guided by some rules beyond merely the "general welfare" in deciding on development; and the system must respect p r inc ip les associated with natural j u s t i c e , or the duty to act f a i r l y . Simply stated, prerequis i tes for the exercise of d iscre t ion include the existence of a substantive planning bas is , and the provis ion of procedural safeguards. The substantive basis includes two aspects: a technical basis (standards), and a broad po l icy basis (a comprehensive plan).23 These three prerequis i tes to the exercise of d iscre t ion form the conceptual framework of the thesis and w i l l now be discussed in more d e t a i l . 1. Substantive Basis (a) Technical Bas is : Standards These are predominantly technical standards in the form of development regulat ions, such as bulk and s i te control regulat ions, including height, FSR, and parking. Often they include technical c r i t e r i a used to ca lcu la te and - 22 -measure external e f fects and to develop more f l e x i b i l i t y ( i . e . performance standards pertaining to noise, t r a f f i c , sunl ight , e t c ) . These standards may be part of a given zone, or of general app l i ca t ion . Regulation by performance allows more f l e x i b i l i t y than does the Euclidean system of regulat ion by use, bulk and s i t e con t ro l . These standards are general ly derived from the f indings of an overa l l planning study, and used to prevent ad hoc decision making. Codi f ica t ion of establ ished pr inc ip les into development regulat ions occurs where spec i f i c l im i t s are des i red, and where d iscret ionary judgment is to be avoided. The regulat ions are general ly non- interpretat ive and r i g i d in the i r app l i ca t ion . The spec i f i c standards are tools to implement broader ob ject ives, forming the second part of the substantive bas is , the comprehensive p lan. (b) The Po l icy Bas is : Comprehensive Plans This section discusses the merits of comprehensive plans as a guide in the exercise of d iscret ionary zoning. In general terms, a comprehensive plan sets out community goals and future patterns of development. Its legal e f fect is l im i ted , due par t ly to i t s generalized concepts which are usual ly incapable of precise in te rpre ta t ion . Ear ly zoning saw the need to coordinate land use controls with long range planning. Most prov inc ia l enabling l e g i s l a t i o n , and the U.S.A. Standard Zoning Enabling Act , now require zoning to be in accordance with a - 23 -comprehensive p lan. Notwithstanding the common l e g i s l a t i v e requirement, debate continues on the theory vs . pract ice of the zone/plan re la t ionsh ip . However, with increasing re l iance on d iscret ionary controls where f i n a l decisions are made at the time of development, the need for a plan that gives some d i rec t ion and provides a po l i cy basis for decis ion making becomes more acute. Simply, the plan should become the basis against which decisions can be made. Heeter discusses the need for a change in comprehensive planning away from the r i g i d long range p lan, i f the plan is to provide a real basis for the administrat ion of d iscret ionary zoning.24 He states that i t seems that long range planning and a s ta t i c Euclidean system are complementary; thus, i t appears log ica l that re ject ion of the s ta t i c control system for a f l ex i b l e /d i sc re t i ona ry system would also necessitate re ject ion of long range planning, at least to some extent. He acknowledges the need for long range planning for cer ta in purposes; however, the emphasis should be on short range programmatic planning to work with a f l e x i b l e , dynamic control system. Babcock echoes the desire for shorter term, narrower, and program oriented planning to work with d iscret ionary control systems: "Planning that focuses on development of spec i f i c programs to solve i nd i v i dua l , immediate problems in a way that contr ibutes to the long term rea l i za t i on of broader goals and object ives is planning of a sort to achieve a s ign i f i can t ro le in the development of c i t i e s . " 2 5 Heyman on the same subject s ta tes : - 24 -" . . . a physical planning process that seeks to formulate f l e x i b l e , long range object ives based upon problem oriented analysis and in re la t ion to phys ica l , soc ia l and economic problems and goals, provides a reasoned basis for a short term program plans . . . i f we are to foster higher amenity l eve l s , the dynamics of development requires f l e x i b l e government response. Both f l e x i b i l i t y and par t i cu la r i zed requirements threaten fa i rness . Detai led and wise comprehensive planning, however, can provide a basis for muting that threat."26 In summary, to adapt to d iscret ionary zoning, the plan should be f l e x i b l e , po l i cy or iented, short term program or iented, but yet with broad long term object ives. The balance between long term " v i s i on " and short term "rea l ism" seems necessary in the plan and is a formula that cannot eas i l y be def ined. Every s i tua t ion is d i f fe ren t , but the important point i s that a plan is necessary to give d i rec t i on , some cer ta in ty , and to provide a po l icy basis for d iscret ionary zoning dec is ions. Without a broad po l i cy bas is , the use of standards become questionable, and the d iscret ionary zoning process is more l i k e l y to operate in a piecemeal and ad hoc manner. In order to be of service to the f l e x i b l e implementing t o o l , the plan must become part of an ongoing dynamic planning process subject to change and not a s ingle s ta t i c document. 2. Procedural Safeguards The increasing use of delegated d iscret ionary zoning places addi t ional pressures on the process. It becomes more c r i t i c a l to impose safeguards to address fundamental issues of f a i rness , openness, and r a t i o n a l i t y . 'One must not forget to balance the rules of natural j us t i ce (s imi la r to , although more narrow than, due process in the U.S.A.) with the merits and substances of d iscret ionary zoning techniques. In general , the rules of - 25 -natural j us t i ce involve two p r i nc i p l es : 1) par t ies must be given adequate notice and opportunity to be heard (audi alteram partem); 2) the adjudicator must be d is in terested and unbiased (nemo judex in causa sua).27 A fundamental r igh t in Canada is the ru le or supremacy of law. What i t means general ly is government by law, not man; or , the cer ta in ty of legal procedures; or , the absence of untrammelled o f f i c i a l power; or , the protect ion of the c i t i z e n against unknown and unpredictable author i ty . Increasing d iscret ionary powers given to administrat ive o f f i c i a l s and a consequent narrowing of the ru le of law have resulted in increasing government complexity.28 Some say that with increased zoning f l e x i b i l i t y , that cer ta in ty of law must come to mean an acceptance of procedural fa i rness and good fa i t h rather than advance spec i f i ca t ion of regulat ions and plans.29 De Smith says that "every authori ty which is under a duty to act j u d i c i a l l y , or adjudicate, must fol low the procedural requirements of natural j u s t i c e " . He continues "there is ample authori ty than an obl igat ion to act j u d i c i a l l y in accordance with natural j us t i ce may be incurred by a body exerc is ing d iscret ionary administrat ive powers which ser ious ly encroach on ind iv idual in teres ts" .30 i t fol lows then that the exercise of d iscret ionary adjudicatory powers by a delegated administrat ion must fo l low rules of natural j u s t i c e . Some place more emphasis on f a i r process than on standards and plans as safeguards against abuse of d i sc re t i on . Babcock states that notwithstanding the importance of an overal l plan in d iscret ionary zoning, that : - 26 -"we are convinced . . . that the conscientious implementation of mundane procedural safeguards w i l l do more to r a t i ona l i ze l o c a l l a n d use regula-t ion than a book f u l l o f . revo lu t ionary ideas or a shel f f u l l of mu l t i -coloured master p lans, J - 1 -A lso , Gerecke, in a study of Canadian zoning, concluded that i t was not technical de f ic ienc ies where the major problems ex is ted , but rather the lack of emphasis on procedural innovation and fa i rness.32 The standards of fa i rness in adjudicat ion cannot be higher than those prescribed in common law, or contrary to enabling l e g i s l a t i o n . However, there are several c r i t e r i a re la t ing to natural j us t i ce that must be respected in the d iscret ionary zoning process. These include provis ion of not ice , opportunity to be heard, f a i r and impart ia l decision maker, record of dec is ion , j u d i c i a l review.33 D. DISCRETIONARY ZONING AND THE COURTS The nature of d iscret ionary zoning techniques subjects them to a l legat ion of abuse. In def in ing general ly the l im i t s to d i sc re t i on , in Phaneauf v.  Corp. du V i l l age and -St. Hughes, 61 Que K.B.8.3 the Appeal Court establ ished th i s p r i n c i p l e : "The l eg i s l a t i on cannot ant ic ipate every case down to the smallest d e t a i l s . Therefore, in order to be i n t ra v i r e s , a bylaw need only be within the general powers of the l e g i s l a t u r e " . Administrat ive law has la id down some general p r inc ip les for the exercise of d iscret ionary powers by administrat ive bodies. The delegates may exercise - 27 -d iscre t ion only within the prescribed l im i t s in the enabling s ta tu tes. The power sha l l not be used a r b i t r a r i l y or d iscr iminate ly . Only relevant matters sha l l be considered in exerc is ing d i sc re t i on . The d iscret ionary power sha l l not be used for unauthorized purposes. The Courts then have concerned them-selves pr imar i ly with a narrow reading of enabling statutes.34 Canadian courts general ly do not in ter fere in the planning process unless they f ind j u r i s d i c t i o n a l or legal defects; e .g . improper delegat ion, act ing beyond or without author i ty , unfai r treatment. Laux says that "Courts should not be second guessing planners, but they should always be avai lab le to ensure that o f f i c i a l s are not exceeding the i r author i ty".35 The Courts then w i l l continue to play an important ro le in j u d i c i a l review to ensure the protect ion of a l l involved. S i m i l a r l y , in the U.S.A. , the Courts have found l i t t l e in d iscre t ionary zoning that renders i t i n v a l i d , per se, so long as i t i s applied f a i r l y and equal ly and, increas ing ly , evidence is presented that the appl icat ion of such techniques supports a community p lan. Meshenberg reports that the Courts are increasingly supporting d iscret ionary decisions where a d i rec t re la t ionsh ip to stated community po l i c i es ex is t .36 Reps addresses the potent ia l for court challenges of d iscret ionary zoning techniques: "We have l i t t l e to fear from courts reviewing the l e g i s l a t i v e basis of such an approach to land development con t ro l . The l i t t l e band of rad ica ls in 1916 pushed the j u d i c i a l clock further ahead in the i r time when they - 28 -introduced comprehensive zoning than we would do in ours by pressing for addi t ional d iscret ionary powers".37 In summary, i f the substantive and procedural prerequis i tes for d iscre t ion as iden t i f i ed in Section C of th is chapter are followed cons is tent ly and uniformly, in accordance with enabling l e g i s l a t i o n , i t would appear that challenges to d iscret ionary zoning w i l l have less chance of success. E. SUMMARY Tradi t ional Euclidean zoning has survived from i t s inception in the ear ly 1900's. Characterized by predetermined regulat ions and neg l ig ib le administrat ive d i sc re t i on , i t has been under increasing c r i t i c i s m , mainly due to i t s r i g i d i t y and i t s unresponsiveness to changing s i tua t ions . The react ion has been a rapid r i se in the use of d iscret ionary zoning, characterized by considerable delegated administrat ive authori ty and f l e x i b l e techniques. Although i t s merits include greater innovation, c r e a t i v i t y , and capacity to respond to development when proposed, d iscret ionary zoning has a major potent ia l danger for abuse. From analysis of the l i t e ra tu re on d iscre t ion and d iscret ionary zoning, a conceptual framework is establ ished which requires three prerequis i tes for the proper exercise of d iscre t ion in the administrat ion of f l e x i b l e zoning techniques. They are a substantive bas is , comprised of 1) technical standards ( regulat ions) , and 2) broad po l icy bas is , or comprehensive planning (dynamic, - 29 -short term or iented) . Th i rd ly , the provis ion of procedural safeguards in the form of rules of natural j us t i ce are required to ensure fundamental issues of fa i rness and openness. These three substantive and procedural precondit ions to the exercise of d i sc re t i on , comprise the conceptual framework for the study. Chapter III w i l l examine f i ve spec i f i c f l ex i b l e /d i sc re t i ona ry techniques with respect to the i r intent and the i r re la t ionsh ip to the three prerequ is i tes . Chapter IV w i l l examine the Ci ty of Vancouver land use control system, which has considerable administrat ive d i sc re t i on , in the spec i f i c context of the three prerequis i tes out l ined in th is chapter. - 30 -Footnotes CHAPTER II 1. Michael J . Meshenberg, "The Administration of F lex ib le Zoning Techniques". ASPO, Planning Advisory Serv ice, Report No. 318, 1975, p. 3. 2. David Heeter, "Toward a More Ef fec t ive Land-Use Guidance system", ASPO,  Planning Advisory Serv ice, Report No. 250, 1969, p. 8. 3. Michael Goldberg and Peter Horwood, Zoning: Its Costs and Relevance For  The 1980s. (Canada: The Fraser Ins t i tu te , 1980), p. 27. 4. Rehenhamp Sacks Wells and Associates, Inc. , ASPO, and David S to lo f f , "Innovative Zoning: A Local O f f i c i a l ' s Guidebook", 1977, p. 4. 5. I b i d . , p. 6. 6. Jan Z. Krasnowiecki, "The Basic System of Land Use Cont ro l " , in The New  Zoning, ed. Norman Marcus and Mari lyn Groves (New York: Praeger, 1970), p. 4. 7. I. Michael Heyman, "Innovative Land Regulation and Comprehensive Planning", in The New Zoning, ed. Norman Marcus and Marilyn Groves (New York: Praeger, 1970), p. 24. 8. John W. Reps, "Requiem for Zoning" ( lecture 1964), p. 6. 9. I b i d . , p. 10. 10. Richard P. Fishman, ed . , Housing For A l l Under Law (Massachusetts: Ba l l i nger , 1978), p. 219. 11. Meshenberg, Op. C i t . , p. 1. 12. I b i d . , p. 2. 13. Edwin D. F o l l i c k , "The Element of Discret ion Inherent in Administrat ive Adjudicat ion" Thesis, Blackstone Law School, Chicago, 1967, p. 2 14. I b i d . , p. 3. 15. Ib id. 16. Jef f rey L. Jowe l l , Law and Bureaucracy (New York: Dune11 en, 1975). 17. Fishman, Op. C i t . , p. 277 18. Meshenberg, Op. C i t . , p. 7 19. Ib id . - 31 -20. I b i d . , p. 8. 21. C l i f f o r d L. Weaver and Richard F. Babcock, Ci ty Zoning (Chicago: Planner 's Press, 1979). 22. I b i d . , p. 276. 23. Meshenberg, Op. C i t . , pp. 10, 11. 24. Heeter, Op. C i t . , p. 9. 25. Weaver, Babcock, Op. C i t . , p. 265. 26. Heyman, Op. C i t . , p. 65 27. W. T. Lane, "Selected Readings in Law for Local Publ ic Administ rators" , (U .B .C . , 1979), p. 1X-11. 28. I b id . , p, 1X-1. 29. Zwanette Pereboom, "Discret ion and Land Use Decision Made by Planners", Law 254 paper, U.B.C. 1979, p. 3. 30. S. A. DeSmith, DeSmith's Jud ic ia l Review of Administrat ive Act ion , ed. J . M. Evans, 4th ed. (London: Stevens and Sons, 1980), p. 77. 31. Weaver, Babcock, Op. C i t . , p. 273. 32. Ken Gerecke, Robert J . McCrea et a l , "Toward a New Canadian Zoning", Univers i ty of Waterloo 1974, p. 52. 33. S. A. DeSmith, Op. C i t . , p. 195. 34. Pereboom, Op. C i t . , p. 20. 35. Robert Cournoyer, "Sharing Space", from Urban Forum, Summer 1975, p. 10. 36. Meshenberg, Op. C i t . , p. 17. 37. Reps, Op. C i t . , p. 66. - 32 -CHAPTER III FLEXIBLE/DISCRETIONARY ZONING - TECHNIQUES Chapter II examined the increasing use of d iscret ionary zoning techniques, and in par t i cu la r i den t i f i ed three var iables in the d iscret ionary zoning process which must be properly addressed to minimize abuse of d iscre t ion and to enable pos i t i ve publ ic benef i ts . The prerequis i tes to d isc re t ion are: 1) technical standards, 2) comprehensive p lan, 3) procedural safeguards. Chapter III w i l l incorporate the conceptual framework of Chapter II with an examination of several f l e x i b l e techniques which have evolved over time in response to the perceived negative features of r i g i d as-o f - r igh t Euclidean zoning. Trad i t ional responses such as the rezoning and the variance w i l l be examined, followed by more recent f l e x i b l e techniques such as PUD, incentive zoning, and impact zoning. These techniques were selected because of the i r tendency to involve some degree of administrat ive d iscre t ion in the granting of a r ight to develop, and because of the i r operation within the conventional framework of land use regula t ion. A l l techniques are, by themselves, neut ra l . Their success depends on how they are used - i f the d iscre t ion granted is abused, then resu l ts may be worse than i f no f l e x i b i l i t y ex is ted. On the other hand, i f d iscre t ion is exercised in a responsible manner, respecting substantive and procedural requirements, then i t s ro le can be pos i t i ve . - 33 -The extent of , and l im i t s to , d iscre t ion in the t rad i t i ona l f l e x i b i l i t y responses ( i . e . var iance, rezoning) are d i f ferent from recent f l e x i b l e techniques (PUD, incent ive, impact) since the former i s based on Eucl idean, pre-determined regulat ions whereas the Tat ter 's foundation is the broader wait-and-see approach. This review is not intended as an in-depth analysis of the performance of each technique, but is rather a broad overview of the intent of the technique, and i t s re la t ionsh ip to the d iscret ionary prerequis i tes iden t i f i ed in Chapter I I . A. Tradi t ional Techniques 1. The Variance Zoning bylaws were intended from the beginning to be ordinances of general a p p l i c a b i l i t y that provided d i f fe rent regulatory standards for d i f ferent sections of the community. As such, i t was ant ic ipated that there would be instances in which a par t i cu la r zoning r e s t r i c t i o n would impose an unanticipated hardship upon an ind iv idual property owner. For th is reason, most zoning enabling l eg i s l a t i on has granted local author i t ies a safety va lve, ca l led a variance to relax the terms of the zoning ordinance in order to provide r e l i e f from "undue hardship or d i f f i c u l t y " . ! The power to grant va r ia t i ons , however, is probably one of the most frequently employed and misunderstood grants of power in zoning enabling - 34 -l e g i s l a t i o n . 2 It i s a power which has frequently been abused by granting va r ia t ions , espec ia l l y use va r ia t ions , ind iscr iminate ly without reference to the statutory condit ions which qua l i fy the authori ty to grant va r ia t ions . Notwithstanding the existence of enabling l e g i s l a t i o n , a major complaint is that too much d iscre t ion l i e s with these bodies. There i s a general opinion that more rules are required wherever f l e x i b i l i t y is being considered and d iscre t ion involved.3 Most variance boards are staf fed by laymen and act independently. Jud i c ia l review is an issue in a small proportion of cases, and then only on the narrow grounds of an i l l e g a l granting or obvious favour i t ism.4 Notwithstanding c r i t i c i s m , there i s considerable support for the use of the variance procedure judging in part from i t s continued existence despite the introduct ion of more sophist icated methods of achieving f l e x i b i l i t y . 2. Rezoning (Spot Zoning) Spot zoning, or the pract ice of i nd i v idua l l y zoning small parcels in a large and otherwise homogenous area, has been used since the inception of zoning, and can probably be characterized as the f i r s t technique to in jec t f l e x i b i l i t y . 5 However, spot zoning is often c r i t i c i z e d for i t s lack of inc lus ion in a comprehensive plan and piecemeal approach to planning. Jud ic ia l and administrat ive reception to spot zoning in Canada has tended to be more receptive and l i be ra l than the U.S.A. The Supreme Court of Canada - 35 -decision in Scarborough v. Bondi appears to recognize that i t i s sometimes necessary to t reat land d i f f e ren t l y , and the precedential e f fect of th is decis ion has tended to f a c i l i t a t e the use of spot zoning throughout Canada.6 Even the U.S.A. Courts are becoming more receptive to spot zoning, as long as an ind iv idua l ized zoning is "related to something broader and beyond i t s e l f " . There must be evidence of " r a t i ona l i t y " and "equa l i t y " , often l inked to the " in accordance with a comprehensive plan" requirement. 7 The decision in spot zoning appl icat ions rests general ly with the l eg i s l a t i ve body, which is capable of exerc is ing considerable d iscret ionary powers. Depending upon procedural safeguards, and commitment to the compre-hensive p lan, i f any, or other c r i t e r i a , the ef fect of spot zoning can be s i g n i f i c a n t . These two t rad i t i ona l methods of f l e x i b i l i t y evolved from the Euclidean pre-determined land use control system, and often were "attached" to a r i g i d system, which made the piecemeal e f for ts of these two devices somewhat less successfu l . Po l i c y , instead of being made broadly and genera l ly , often f e l l to being made on an i nd i v i dua l , ad hoc basis by the Board of Appeals on one hand (var iance), and by the l eg i s l a t i ve body on the other (rezoning). Often, ind iv idual d iscret ionary decisions occurred in the midst of inconsistent appl icat ion of procedural safeguards, and without the benef i t of a technical or po l icy substantive bas is . Notwithstanding de f i c i enc ies , these two o r ig ina l techniques to in jec t f l e x i b i l i t y into a r i g i d system continue in use today. - 36 -B. Recent F lex ib le Techniques Pr ior to the 1960's, zoning gave the appearance of a r i g i d and i n f l e x i b l e system where each use i s assigned to i t s proper p lace. Provisions for f l e x i -b i l i t y rested pr imar i ly with the variance and rezoning. Since then, there has been an increasing trend to have zoning systems whereby the terms of permissible development could be negotiated at the time of development. This trend began with use of special permits to control the development of incompatible uses and has culminated in recent years in the use of such techniques as f l oa t ing zones, incentive zoning, impact zoning, TDR, PUD. In these techniques each proposed development may be judged on the basis of i t s ind iv idual circumstances - use, design, amenit ies, hours of operat ion, t r a f f i c , se rv i c ing , e t c . , rather than on the basis of p robab i l i t i es and detai led pre-stated regulat ions. Following is a b r ie f analysis of three f l e x i b l e techniques and the i r re la t ionship to the three prerequis i tes for d iscret ionary zoning. 1. Planning Unit Development (PUD) a) Descript ion One of the ea r l i es t forms of f l e x i b l e zoning, PUD combines elements of zoning and subdivis ion regulat ions, permitt ing large scale developments to be planned and b u i l t as a un i t , and allowing greater f l e x i b i l i t y in s i t i ng - 37 -bu i ld ings , mixture of land uses, arrangement of open spaces, and the preserva-t ion of natural features.8 i t s two key elements are the appl icat ion of controls to the ent i re development rather than to ind iv idual parce ls , and the requirement of d iscret ionary review to assure that s i t e designs are consistent with publ ic ob ject ives. The PUD is usual ly included as a d i s t r i c t within the zoning ordinance, and implemented af ter extensive negotiations through a publ ic rezoning amend-ment (e .g . C i ty of Vancouver CD1 zone). The one feature common to v i r t u a l l y a l l PUD ordinances is the requirement for a s i t e plan review involv ing extensive negotiat ion and d iscret ionary judgment made by administrators, concluding with agreement on a spec i f i c development pro ject . b) Relat ionship to Standards, Comprehensive Plan, Safeguards The degree of p r io r spec i f i ca t ion of standards is often an issue in the use of the PUD technique. Neither the extreme of detai led standards for a l l PUD elements nor that of complete f l e x i b i l i t y is des i red. Some elements (e .g . densi ty , open space, parking, run o f f , serv ic ing) can and should be contro l led through numerical standards. Other elements need not be since there are better and more f l e x i b l e ways to achieve desired resu l t s . Given wide design opt ions, i t i s essent ia l that qua l i f i ed professionals be involved on both sides and that c lear statements of object ives e x i s t . PUD's of fer many opportunit ies for achieving po l i c i es stated in a comprehensive plan - opportunit ies not avai lab le or even negated through the - 38 -more t rad i t i ona l techniques. Results such as improved housing design, mixed use developments, density var ie ty , preservation of natural features, and other publ ic object ives are possible under PUD. Most bylaws require PUD consistency with the comprehensive p lan. As with most f l e x i b l e zoning techniques, there are a number of r i sks and dangers i f the PUD is misused. It is essent ia l that strong safeguards be bu i l t into the process, pa r t i cu l a r l y since development options i n i t i a l l y are so wide. 2. Incentive Zoning (Bonus Zoning) a) Descript ion Incentive zoning represents a pos i t i ve approach to zoning as compared to the more r e s t r i c t i v e , negative t rad i t i ona l approach. Essen t i a l l y , incentive zoning is a trade off between the community and the property owner. In exchange for something that the community views to be in i t s i n te res ts , but which i t might otherwise be unable to require (e .g . open space, d i rec t access to parking, an arcade, p laza , construct ion of publ ic f a c i l i t y ) , the developer is given a bonus, usual ly in the form of permission to bui ld at a higher densi ty. Bonus provis ions have been u t i l i z e d most frequent ly in high density d i s t r i c t s of centra l c i t i e s (e .g . New York, San Francisco, Vancouver). Since developers are usual ly not res t r i c ted in bonusing, there has been l i t t l e l i t i g a t i o n on incentive zoning.9 Bonus provisions can be administered as of r ight or through a special permit process. - 39 -b) Relat ionship to Standards, Comprehensive P lan, Safeguards Objectives desired from an incentive zoning approach must be stated c l ea r l y and based on careful study ( i . e . they must fol low a p lan) . The standards (bonus provis ions) should be spel led out so a l l par t ies are aware of the l i m i t s , the process, and the cos ts /benef i t s , and can act accordingly. Arb i t rary appl icat ion is thereby reduced. Mary Brooks in "Bonus Provisions in Central C i ty Areas" (1970) out l ines four c r i t i c a l steps in draf t ing a bonus system, that i f omitted, reduces i t s pos i t i ve e f fec t : 1. Establ ish the purpose of the bonus system. 2. Select the amenities desired in the area. 3. Determine the spec i f i c bonuses to be granted. 4. Decide how to administer. 1 - 0 Bonus provisions can strongly support a comprehensive plan by a pos i t ive focus on the elements that are necessary to achieve the desired r esu l t s . Bonuses and incent ive^ have been used r e l a t i v e l y l i t t l e and only to accomplish narrow publ ic purposes. Their potent ia l expansion to achieve wider community object ives is worthy of serious study. - 40 -3. Performance Zoning (Impact Zoning) a) Descript ion Performance zoning employs quant i tat ive c r i t e r i a for the placement of land uses as compared to the more subject ive t rad i t i ona l zoning d i s t r i c t s . Instead of estab l ish ing permitted uses within a d i s t r i c t on the basis of a lengthy l i s t , incompat ib i l i ty is avoided through spec i f i c c r i t e r i a for a par t i cu la r use. It is zoning by performance not by use. The use ei ther complies with the standards or is not allowed. Impact zoning is highly f l e x i b l e while protect ing nearby res idents . It can act as guide to change and allows for increased d i v e r s i t y . i l Better information gathering and analysis techniques have permitted greater re l iance on performance standard zoning and the development of impact zoning techniques. Such techniques provide greater f l e x i b i l i t y by al lowing consideration of more var iables in the decision making process. b) Relat ionship to Standards, Comprehensive P lan, Procedural Safeguards The intent of performance zoning is to replace the t rad i t iona l , use spec i f i ca t ions with a broad set of numerical standards. However, the f i e l d i s new and the standards are at present l im i ted . Their most successful app l i ca-t ion to date has been indus t r ia l performance zoning (e.g. noise, g la re , smoke, t r a f f i c ) . - 41 -A performance zoning system cannot replace the process by which a community sets the po l i c i es or object ives that the i r land use controls are implementing. Rather, performance zoning provides so l i d information for decision making, but decisions must s t i l l be made through the establ ished process. The advantage of these models i s that they allow communities to estab l ish pol ices in a comprehensive plan and determine zoning matters through d iscre t ion in a more del iberate and informed manner.12 The negotiat ing aspect of zoning may be reduced subs tan t ia l l y mainly due to c lea r l y i den t i f i ed guides to decision making.13 The administrat ive ob jec t i v i t y of performance standards is not questioned. However, the o r ig ina l determination of standards involves some degree of value judgment. Moreover, the highly sophist icated technology associated with these techniques makes administrat ion somewhat d i f f i c u l t . Impact zoning techniques are r e l a t i v e l y new and have l im i ta t i ons . However, they can serve to s i g n i f i c a n t l y contr ibute to a substantive basis and i f used in a process employing procedural safeguards, impact zoning techniques w i l l serve to inform and improve the qua l i ty of d iscret ionary dec is ions. These f l e x i b l e techniques are only three of a multitude of separate or cross breeds of innovation in land use con t ro l , a l l oriented toward the "wait-and-see" approach. One must remember that although the techniques of fer much to both the community and developer, through f l e x i b l e provisions allowing - 42 -innovat ion, they are open to abuse in that d iscret ionary powers are used. It is c lear that there must be boundaries. Total d isc re t ion is to inv i te abuse. C. SUMMARY This chapter applied the theoret ica l f indings of Chapter II to the consideration of f i ve f l e x i b l e zoning techniques in use today which involve a considerable exercise of d i sc re t i on . Administrat ive d iscre t ion was neg l ig ib le in Euclidean s ty le zoning as a l l regulat ion was pre-determined. The f l e x i b i l i t y in that system came f i r s t l y from the var iance: a granting of r e l i e f from requirements of the bylaw due to "hardship" - administered by an administrat ive t r i buna l ; and secondly, from spot zoning: ind iv idua l parcel rezoning having l i t t l e regard to a comprehensive p lan, granted by the l eg i s l a t i ve body. These techniques enabled some f l e x i b i l i t y , but were often done piecemeal, contrary to po l i cy , and without a planning bas is . They were used as a band-aid so lu t ion , ignoring the more fundamental problem of the Euclidean system. A lso , three recent f l e x i b l e techniques involving the exercise of d iscre t ion were examined - PUD, incentive zoning, impact zoning. Each technique uses a "wait and see" approach, o f fers considerable f l e x i b i l i t y , and can act pos i t i ve l y to encourage innovative ways to use land and achieve community goals. With the wide d iscret ionary powers in these techniques, i t becomes paramount that such d iscret ion be informed. Each f l e x i b l e technique responds to the requirements of the conceptual framework in providing a substantive basis for decision making and including procedural safeguards in i t s process. - 43 -Chapter II establ ished a conceptual framework for the exercise of d i sc re t i on . Chapter III has described f i ve f l e x i b l e techniques involv ing d i sc re t i on , and discussed the potent ia l use of each tool in providing f l e x i b l e responses to changing land use needs. In a l l cases, however, a d iscret ionary judgment i s part of the dec is ion . In so doing, the importance of the provisions of the conceptual framework are demonstrated. Without a substantive basis and procedural safeguards, decision making becomes open for arb i t ra r iness and abuse. - 44 -Footnotes  CHAPTER III 1. Marl in R. Smith, "Zoning Boards of Appeal" , Zoning: Mirror of C r i s i s , Dept. of Urban and Regional Planning, Univers i ty of I l l i n o i s , 1971. 2. I b i d . , p. 49. 3. Jagdev Singh Dh i l l on , "The Zoning Board of Appeal" , Planning Thesis, U .B .C . , Vancouver, 1966, p. 168. 4. Brian J . Por ter , "The Land Use Contract" , Planning Thesis, U.B.C. , Vancouver, 1973, p. 70. 5. I b i d . , p. 67. 6. I b i d . , p. 68. 7. Michael J . Meshenberg, "The Administrat ion of F lex ib le Zoning Techniques", ASPO, Planning Advisory Serv ice, Report No. 318, 1975, p. 18. 8. I b i d . , p. 19. 9. I b i d . , p. 43. 10. Mary Brooks, "Bonus Provisions in Central C i t y Areas" , ASPO Planning  Advisory Serv ice, Report No. 257, 1970, p. 10. 11. Kent Gerecke, Robert McCrea, et a l , "Toward a New Canadian Zoning", Univers i ty of Waterloo, 1974, p. 38. 12. Meshenberg, Op. C i t . , p. 55. 13. Gerecke, Op. C i t . , p. 42. - 45 -CHAPTER IV CASE STUDY - VANCOUVER DISCRETIONARY ZONING  A. INTRODUCTION Chapters II and III out l ined the evolution of d iscret ionary zoning tech-niques involv ing delegation of administrat ive d iscre t ion to municipal o f f i c i a l s . The study iden t i f i ed three prerequis i tes for the exercise of d iscret ionary zoning: a technical basis (regulatory standards) and a po l i cy basis (compre-hensive plan) to inform d i sc re t i on ; and t h i r d l y , procedural safeguards to prevent the abuse of delegated author i ty . This chapter examines the Vancouver land use control system, and in par t i cu la r the nature/extent of d iscre t ion re la t i ve to the three prerequ is i tes . Section B reviews the enabling l eg i s l a t i on contained in the Vancouver Charter. Section C examines the Vancouver d iscret ionary zoning system beginning with a b r ie f h is to ry , followed by a review f i r s t l y of Vancouver d iscret ionary zoning l e g i s l a t i o n , and secondly the approval process. The chapter ends with conclusions pertaining to the Vancouver d iscret ionary zoning system re la t i ve to the three prerequ is i tes . The study of d iscret ionary zoning w i l l focus on the l eg i s l a t i on and approval process associated with development permit review where d iscret ionary powers are exerc ised. In f ac t , f igures for 1980 show that 90% of a l l app l i ca -t ions for development involve d i sc re t i on . Of a to ta l of 1638 appl icat ions in 1980, only 137 were for outr ight uses . l - 46 -It should be noted that th is study is not an analysis of the performance and resu l ts of d iscret ionary zoning, nor of processing e f f i c i ency . Rather, i t i s a focused examination of the nature/extent of d iscre t ion in the system as of July 1, 1982 and i t s compliance with the conceptual framework presented in Chapter I I . B. PROVINCIAL ENABLING LEGISLATION This section examines the powers granted to Vancouver, by the Vancouver Charter, in par t i cu la r with respect to the extent/nature of d iscret ionary powers in land use con t ro l . Part XXVII of the Charter s p e c i f i c a l l y deals with Planning and Development, in Sections 559 to 573 (Appendix I ) . Sections 561 to 563 are the provisions for O f f i c i a l Development Plans (ODP). An ODP is a plan adopted by Council " for the future physical development of the c i t y or any part thereof, whether expressed on drawings, reports or otherwise, and whether complete or p a r t i a l " . Section 561 provides that a Council may prepare a development plan for the C i ty or part thereof. Section 562 gives Council authori ty to , by bylaw, adopt the Plan as the O f f i c i a l Development Plan. Section 563 i den t i f i es the legal af fect of adoption. It is c r i t i c a l to note that the Plan i f adopted by bylaw in accordance with the enabling l e g i s l a t i o n , i s binding on a l l par t ies .2 Section 563 reads: - 47 -Undertakings, Official Development Plan 563. (1) The adoption by Council of a development plan shall not commit the Council to undertake any of the developments shown on the plan. (2) The Council shall not authorize, permit or undertake any deve-lopment contrary to or at variance with the official development plan. (3) It shall be unlawful for any person to commence or undertake any development contrary to or at variance with the official develop-ment plan. Section 565 grants Council the power to prepare a Zoning Bylaw. It i s not mandatory to do so. Subsections a-j of Section 565 prescr ibe the contents of a Zoning Bylaw, including regulat ing uses, bu i ld ings , bulk standards and creat ing zones of no uniform regulat ions requir ing Council approval as to the form of development (e .g . CD-I) . Section 565A out l ines addi t ional areas which Council may address by bylaw. Subsection (d) is important to th is study as i t enables Vancouver Council to delegate to any o f f i c i a l / boa rd wide powers of d iscre t ion re la t ing to zoning matters. Section 565A(d) reads: (d) delegating to any official of the city or to any board composed o f such officials such powers of discretion relating to zoning matters which to Counci l seem appropriate;, It i s th is provis ion which is the key to d iscre t ion in Vancouver's land use control system. Once the powers have been delegated, the Council has no j u r i sd i c t i on there in , except that i t can by bylaw remove or amend those delegated powers. - 48 -Section 565A(i) i s an important omnibus clause which gives Council the r ight by bylaw to proh ib i t uses for a var ie ty of reasons including publ ic safety and amenity. Section 565A(i) reads-: (i) prohibiting the erection, use or occupancy of any building or the use or occupancy of any land unless due provision is made for public safety and amenity, sanitary facilities, water supply, and drainage. With respect to ( i ) i t i s of in terest to note that delegation i s not expressly granted to o f f i c i a l s / b o a r d s . It i s debatable whether subsection (d) is su f f i c ien t to give such author i ty , and whether subjects such as publ ic amenity or publ ic safety are "zoning matters" as stated in (d) . In any event, boards and o f f i c i a l s are in pract ice acting as though they have these powers. Provisions for rezoning, pa r t i cu l a r l y procedural safeguards, are included in Section 566. Sections 572 and 573 speci fy the requirements and mandate for the Board of Variance including membership, c r i t e r i a for judging appeals ( i . e . hardship), and procedural safeguards. In sum, the Charter 's provisions and controls respecting d iscret ionary zoning, and in pa r t i cu la r development permits, are rather l imi ted re la t i ve to the three prerequ is i tes . Regarding a technical basis ( regula t ions) , the Council ma^ adopt a zoning bylaw, and the contents are broadly def ined. Secondly, a po l icy basis is provided in that an O f f i c i a l Development Plan may - 49 -be adopted. Th i rd ly , procedural safeguards are not spec i f ied with respect to development permits, except for appeals and rezonings. There are no provisions for appeal or review at a higher level than the local Board of Variance. The Council may grant powers of d iscre t ion on zoning matters to boards and o f f i c i a l s as deemed appropriate. However, they may not act contrary to any O f f i c i a l Development Plan. In sum, the Charter grants wide d iscret ionary powers to boards and o f f i c i a l s . Such d iscret ionary authori ty is l imi ted only by the requirement to comply with any ODP. The Charter 's control over, and requirements of , Vancouver are l imi ted in terms of statutory prescr ip t ion of required substantive c r i t e r i a or administrat ive procedures. Vancouver then has considerable freedom of sel f-determinat ion in zoning matters. C. VANCOUVER LEGISLATION - Discret ionary Zoning 1. Introduction In 1974, the C i t y of Vancouver made a major change in the i r system of land use con t ro l , opting for a more f l e x i b l e system involv ing increased d iscre t ion by o f f i c i a l s . This was decided after a lengthy debate and in response to complaints s im i la r to those out l ined in Chapter II ( i . e . r i g i d bylaws hamper c r e a t i v i t y ; lack of publ ic involvement, e t c . ) . The former system was largely sel f -execut ing with pre-stated regulat ions and minimal d i sc re t i on . - 50 -The new system is a mixture of f i xed cont ro ls , f l e x i b l e guidel ines and po l icy statements/plans. It allows the C i ty more d iscre t ion and enables more decis ion making at the time of development. The object ive of the "new" zoning has been described as "neighborl iness" with sunl ight preservat ion, view pro tec t ion, topographic adaption, soc ia l / rec rea t ion amenit ies, safety , a l l deemed to be part of th is neighbourl iness.3 Total d iscret ionary zoning ( i . e . a l l development at the d iscre t ion of the Ci ty) is used in a large portion of the Ci ty - in par t i cu la r in areas under-going redevelopment pressures, and where publ ic response is most c ruc ia l and decision making more complex. Discret ionary zoning means that a l l development is at the d isc re t ion of the approving authori ty - techn ica l l y nothing i s permitted by r igh t and a l l uses and development regulat ions are d iscre t ionary . It i s control by permission, not by regu la t ion. This does not mean that the zoning provisions are ignored; but rather , that cer ta in f l e x i b i l i t y ex is ts in administering the prov is ions, as long as publ ic object ives are not unduly compromised. Areas now under such zoning include Downtown (DD), West End (WED), False Creek (FCCDD), Central Waterfront (CWD), and are a l l covered by O f f i c i a l Development Plans. A l l development in these areas is cond i t iona l , and d iscre t ion may be exercised within the prescribed l im i t s of the enabling l e g i s l a t i o n . This w i l l be discussed in more de ta i l in part 2 of th is sect ion. A part t r a d i t i o n a l , part d iscret ionary approach (hereafter ca l led t rad i t i ona l ) i s used in the balance of the C i ty where areas are, fo r the most par t , stable and estab l ished. Each zone includes a mixture of outr ight uses (no d iscret ion) and condi t ional uses (d iscre t ionary) . Development regulat ions - 51 -are r i g i d for outr ight uses, and d iscret ionary for condi t ional uses (again, su f f i c i en t j u s t i f i c a t i o n must be presented to re lax the regu la t ions) , (see Figures 1 and 2) . - 52 -FIGURE 1 LEGEND VANCOUVER TRADITIONAL AND DISCRETIONARY (ODP's) ZONED AREA ^ TRADITIONAL f"| DISCRETIONARY (ODP's) N - 53 -I ~1\ LEGEND VANCOUVER OFFICIAL DEVELOPMENT PLANS (ODP) AREAS WED- WEST END DISTRICT DD- DOWNTOWN DISTRICT FCCDD- FALSE CREEK COMPREHENSIVE DEVELOPMENT DISTRICT CWD- CENTRAL WATERFRUNT DISTRICT FIGURE 2 A N - 54 -2. Zoning and Development Bylaw 3575 The Zoning and Development Bylaw (ZDB) i s the mechanism for con t ro l l i ng land use in the C i t y . Its s t ructure, not unl ike most North American bylaws, includes sections on de f i n i t i ons , administ rat ion, enforcement, zoning d i s t r i c t s , and regulat ions. Each zone has an intent c lause, followed by outr ight approval uses ( t rad i t i ona l zoned areas on ly) , condi t ional approval uses, development regulat ions (e .g . Floor S i te Ratio (FSR), yards) and in some cases spec i f i c provis ions for the re laxat ion of regulat ions. An applicant requires an approved development permit pr ior to development. The approving authori ty for development permits is ei ther the Development Permit Board (DPB) or Director of Planning (D of P ) , and in cases of appeal the Board of Variance (B of V) . Counc i l ' s involvement is on a broad po l icy basis and i t acts as approving authori ty fo r ODPs, gu ide l ines, and po l i c i es which provide support fo r the d iscre t ionary land use control system. Council also decides on rezonings (by bylaw), and on rare occasions advises the DPB on development permits. In general , Council involvement in development permit review is minimal, as i t has been delegated to o f f i c i a l s / boa rds . There are some notable exceptions which have occurred as bylaw changes over time have provided addi t ional safeguards with respect to cer ta in d iscret ionary powers exercised by the delegated author i ty . For example, Council must grant pr ior approval to f l oo r space bonuses in the DD and WED O f f i c i a l Development Plan areas; to relax maximum permissible f l oo r space in the FM-1 D i s t r i c t ; ^ and to re lax regulat ions for apartment housing for e lder l y c i t i z e n s . 5 Furthermore, Council i s at times asked for advice and input on p o l i t i c a l l y sens i t ive and - 55 -controvers ia l appl icat ions under consideration by the DPB. The decision making on the appl icat ion however rests with the delegated body, and not Counc i l . In general , Counc i l ' s involvement remains in broad po l i cy formulation and leaves the ongoing development permit processing to delegated o f f i c i a l s and boards. The fol lowing review of ZDB leg i s l a t i on focuses on d iscre t ion and development permits. Part (a) reviews the basic administrat ive provis ions of the ZDB, and i den t i f i e s d iscret ionary powers. Parts (b) and (c) examines Vancouver's t rad i t i ona l and d iscret ionary zoning systems, respect ive ly . (a) Descript ion of Leg is la t ion - Discret ionary Zoning Administrat ion Section 3 of the Zoning Bylaw i s the municipal ly adopted enabling l eg i s l a t i on for def in ing d iscret ionary powers in administering zoning and development permits. Section 3 (Appendix II) has evolved piecemeal over time. It is somewhat cumbersome and requires considerable in terpretat ion and cross reference to other prov is ions. Decision making on development permits rests with two au thor i t i es , the D of P and the DPB (the B of V is a t h i r d , but on appeals of decisions of the D of P or DPB on hardship grounds only, and is not considered in the study). The D of P is the head o f f i c i a l of the Planning Department. The DPB is an administrat ive board composed of three voting members (senior C i ty o f f i c i a l s -- 56 -D of P (chairman), Director of Socia l Serv ices, C i ty Engineer) and an Advisory Panel of s ix c i t i zen members. The D of P and DPB exercise powers on behalf of Council v ia Section 3.1.2 of the Zoning Bylaw. Section 3.1.2 reads: It shall be the duty of the Director of Planning and the Development Permit Board to exercise on behalf of Council such powers as are hereby expressly delegated to them. The extent and l im i ts of the i r respective powers are broadly out l ined in Section 3 (with addi t ional provis ions af fect ing the DPB contained in the DPB Bylaw, to be discussed l a t e r ) . The zoning d i s t r i c t s themselves may further guide d iscre t ionary powers. However, the source of power l i e s in Section 3 of the Zoning Bylaw. Section 3.3.1 recognizes d iscre t ion and gives authori ty to the D of P/DPB to exercise d isc re t ion in approving development permits with or without condi-t i ons , or refusing them. Discret ion ex is ts to refuse a condi t ional use, notwithstanding compliance with the Bylaw. Section 3.3.1 reads: ' In dealing with applications for development permits the Director of Planning or the Development Permit Board may in every case and in accordance with the provisions of this By-law grant such permits either unconditionally or subject to conditions, including a limitation in time, or may refuse such permits. The key provisions out l in ing the authori ty of the DPB and D of P are Section 3.2.4, and 3.3.3 and 3.3.4 respect ive ly . - 57 -The DPB in 3.2.4 i s granted power to relax provis ions of the Bylaw (Zoning Bylaw) in exerc is ing d i sc re t i on . Section 3.2.4 reads: The Development Permit Board, in the exercise of its jurisdiction, may relax the provisions of this By-law. In granting any relaxation, the Board shall have regard to the intent of this By-law. the regulations and policies of any Official Development Plan, and such other policies as Council may from time to time determine., including design guidelines. Although the l eg i s l a t i on allows re laxat ion of the provis ions of the Zoning Bylaw, i t provides c lear d i rec t ion to the Board to have regard for cer ta in c r i t e r i a in doing so; s p e c i f i c a l l y , "have regard to" the intent of the Bylaw, regulat ions and po l i c i es of any ODP, and other Council p o l i c i e s . "Have regard to" requires considerat ion, d i f fe rent from mandatory "comply w i th" . The j u r i s d i c t i o n of the DPB is a l l condi t ional uses, (except as spec i f ied in Section 3 .3 .3 . below). Section 3.3.3 describes the key authori ty of the D of P in deal ing with development permits. The leg i s l a t i on allows the D of P to process a l l condi t ional uses not considered by the Board ( i . e . those determined by s ta f f to be r e l a t i v e l y non-contentious). In so doing, the l eg i s l a t i on authorizes the D of P to exercise h is d iscre t ion in considering development, notwith-standing provis ions of the Zoning Bylaw. However, s im i la r to the DPB, l i m i t a -t ions on d iscre t ion are contained in Section 3.3.4 requir ing the D of P not to exercise his d iscre t ion i f cer ta in substantive issues have not in his opinion been complied wi th. Sections 3.3.3 and 3.3.4 read: - 58 -3.3.3 Notwithstanding the provisions of this By-law or any other By-law, and unless he receives a notice of objection from any member of the Development Permit Board, the Director of Planning may in his discretion either approve, approve subject to conditions, or refuse applications for development permits for which the ton-sent of the Development Permit Board would otherwise be re-quired. 3.3.4 The Director of Planning shall not exercise his discretion pursuant to subsection 3.3.3 above where, in his opinion: (a) The development would have a significant effect on the existing immediate environment; (b) The development would create traffic implications that could affect the general environment; (c) The height or density of any proposed building would not be in keeping with the general building heights or density in the immediate environment; (d) There may be possible significant buildings of heritage merit on the site or in the surrounding area that may be adversely affected by the development; (e) The design is not of an acceptable standard and may adversely affect public amenity, in which case the Director of Planning may first request advice from the Urban Design Panel; (f) The development is such that special public amenities could be considered for density bonus or other special advantages; or (g) The proposed development could affect any public policy objectives, established or potential, including future transit locations and open space needs. To c l a r i f y , Sections 3.3.3 and 3.3.4 were establ ished for p rac t i ca l reasons to allow the D of P to d i r ec t l y process items not of major impact so - 59 -as to reduce the work load of the DPB, and enable appropriate a l loca t ion of time and resources between them in the review of app l ica t ions . Both the DPB and D of P operate on a c i t y wide basis ( j u r i sd i c t i on of the DPB was expanded from the central c i t y to the ent i re c i t y in 1980). This w i l l be discussed further in Section D - Process. The broad powers of the DPB and D of P are outl ined in Sections 3.2.4 and 3 .3 .3 /3 .3 .4 . However, Section 3 fur ther prescribes more spec i f i c provis ions for def in ing and guiding d iscret ionary powers of the DPB and D of P. For example, Section 3.2.1 and 3.2.3 grant the D of P power to relax provis ions respecting r e l a t i v e l y minor technical matters (such as addit ions to bu i ld ings , setbacks, screening, ba lconies) . Moreover, Section 3.2.3 requires that the D of P be sa t i s f i ed that any property owner l i k e l y to be adversely affected by such re laxat ion be n o t i f i e d . Sections 3.2.5 and 3.2.6 grant the DPB/D of P power to re lax provisions dealing with heritage s i tes where l i t e r a l enforcement would not allow restora-t ion of s i t e s , again subject to cer ta in substantive precondi t ions, and n o t i f i -cat ion requirements. Furthermore, considerable power is granted to the DPB/D of P in 3.3.2 whereby any appl icat ion could be refused notwithstanding compliance with the Zoning Bylaw, i f any of s ix condit ions e x i s t . Section 3.3.2 reads: - 60 -3.3.2 Notwithstanding the. provisions of this. By-law. a development permit may be refused if the development in respect of which application is made: (a) Does not conform to an amendment to the Zoning and Development By-law for which a formal application has been made prior to the application for the development permit;» (b) Refers to a site or a portion thereof required for any civic purpose, in which case the Director of Planning shall refer the application to the City Council for authority either to negotiate with the applicant or to issue the development permit; (c) Would prejudice the future subdivision of the property; (d) Refers to a site where adequate drainage, sanitary facilities or water supply are not available; (e) Would in the opinion of the City Engineer adversely affect the public safety; or (f) Would in the opinion of the Director of Planning or the Development Permit Board adversely affect public amenity. If matters of design are involved, the application may first be referred to the Urban Design Panel for consideration and advice. (b) Analys is of Leg is la t ion - Discret ionary Zoning Administrat ion Sections 3.2.4 and 3.3.3/3.3.4 are the key provis ions in out l in ing the d iscre t ionary powers of the DPB and D of P. Considerable qua l i f i ed d isc re t ion i s granted to both author i t ies in that they can relax bylaw prov is ions. Section 3.2.4 requires the DPB to "have regard to " Zoning Bylaw in tent , regu la t ions, and po l i c i es of any ODP, and a l l - 61 -Council p o l i c i e s . The D of P, in considering condi t ional uses not handled by the DPB v ia 3 .3 .3 /3 .3 .4 , is to "not exercise d iscre t ion where . . . in his opinion" seven planning c r i t e r i a cannot be s a t i s f i e d . These c r i t e r i a are, by necessi ty , i n te rp re t i ve , judgmental, and d i f f i c u l t to determine (otherwise they would be quant i f ied and provided as regulat ions in each zone). Nonethe-l e s s , they provide a substantive foundation for his dec is ions. The other provis ions of Section 3 address spec i f i c subject areas where d iscre t ionary power i s fur ther guided. Section 3.3.2 i s important, however, as i t s p e c i f i c a l l y grants power to refuse appl icat ions notwithstanding compliance with the bylaw, i f any of 6 condit ions ( a to f ) e x i s t . This provis ion reserves the r ight for the Ci ty to "change the rules in the middle of the game" for reasons of publ ic in te res t . However, th is prerogative must not be abused. Although rare ly used in p rac t i ce , potent ia l ex is ts here for abuse and uncertainty given the wide uncontrolled d i sc re t i on . For example, such provis ions could be used to refuse an outr ight use; or could f a c i l i t a t e p o l i t i c a l interference under the guise of planning ra t iona le . A lso , the range of e l i g i b l e s i tuat ions is broad and highly subject ive (e .g . how is publ ic safety or publ ic amenity def ined). One safeguard here is that any decision can be appealed to the B of V. However, in order to reduce uncertainty, the provisions should be made more s p e c i f i c , and at the leas t , provide for mandatory no t i f i ca t ion /hear ing to reduce the potent ia l for misuse. In sum, the key provisions of 3.2.4 and 3.3.3/3.3.4 provide wide d iscret ionary powers to the DPB and D of P. The author i t ies are to "have regard to" and "not exercise d iscre t ion where", in the context of speci f ied - 62 -planning c r i t e r i a . Of course, they must exercise considerable judgment in determining compliance with these in terpretat ive c r i t e r i a . Such interpretation/judgment i s a large part of d iscret ionary zoning. The l eg i s l a t i on in Section 3 at l eas t , despite l im i ta t i ons , recognizes the need fo r , and provides a substantive basis to inform d iscret ionary dec is ions. The framework i s provided in Section 3 - the next step l i e s with the procedural safeguards, decision makers, and the process i t s e l f to respond to these provis ions in a competent and professional manner. Parts (c) and (d) w i l l examine the l eg i s l a t i on in Trad i t iona l and Discret ionary zoned areas, respect ive ly , to discern the extent and nature of d iscre t ion in these two areas. (c) Discret ion in Tradi t ional Zoned Areas This part reviews the t rad i t i ona l zoned areas to discern the extent/nature of d iscre t ion and i t s re la t ionsh ip to the three prerequis i tes . In these areas, d iscre t ion ex is ts pr imar i ly with respect to condi t ional uses. Outright uses are permitted as a r i gh t . To examine d iscre t ion in t rad i t i ona l zoned areas, a review w i l l be done of a typ ica l d i s t r i c t , the RS-1 One Family Dwelling D i s t r i c t . This zone is general ly representative of the other 30 or so zones. (The RS-1 Zone Schedule i s provided in Appendix I I I ) . o - 63 -The intent clause i s l i s t e d f i r s t , ident i fy ing the purpose of the zone. Second is outr ight approval uses where no d iscre t ion may be exercised.6 Section 3 l i s t s the condi t ional approval uses allowing the d isc re t ion of the DPB, or D of P (v ia 3 .3 .3) . A standard provis ion in a l l t rad i t i ona l zones preceeds the l i s t of condi t ional uses, which out l ines the basic l im i ta t ions /cons idera t ions in exerc is ing d i sc re t i on . Section 3 and 3.1 of the RS-1 schedule reads: 3 Conditional Approval Uses 3.1 Subject to all other provisions of this By-law. including Section 3.3.3. and the provisions and regulations of this Schedule, the Development Permit Board may approve any of the uses listed in Section 3.2 including such conditions or additional regulations as It may decide, provided that before making a decision it: (a) considers the intent of this schedule and the recommenda-tions of any advisory groups, plan or guidelines approved by Council for the area; and (b) notifies such adjacent property owners and residents it deems necessary. Technica l ly , the DPB is required to decide upon a l l condi t ional uses. However, as out l ined e a r l i e r , the D of P v ia Section 3.3.3 of the Zoning Bylaw can act in place of the DPB, i f the matter is deemed by s ta f f to be nonconten-t i ous . In any event, e i ther authori ty can relax any provis ion of the Bylaw subject to the general condit ions of 3.2.4, and 3.3.3 and 3.3.4, and also can impose such condit ions and addi t ional regulat ions as i t may decide as stated in 3.1 of RS-1. - 64 -Section 3.1(a) of RS-1 requires consideration of guidel ines approved by Counci l , and i s s imi lar to the requirements of Section 3 of the Zoning Bylaw. Section 3.1(a) also requires consideration of the recommendations of any advisory group. The approving authori ty is then required to consider, but not necessar i ly comply with these prov is ions. However, i t is important to note that po l i c i es and guidel ines do not ex is t for t rad i t i ona l zoned areas. Only in areas undergoing redevelopment pressures and/or having unique issues, such as K i t s i l ano and Fairview Slopes, are guidel ines in p lace. Consequently, the exercise of d iscre t ion in many t rad i t i ona l zoned areas lacks a substantive basis in terms of po l icy and th is could lead to arb i t ra ry and ad hoc decision making. This i s c r i t i c a l , given the wide d iscret ionary powers for condi t ional uses, and the extensive and varied uses l i s t ed as condi t ional uses in t rad i t i ona l zoned areas. Section 3.1(b) requires no t i f i ca t i on of adjacent owners and residents as deemed necessary. This i s a procedural safeguard to open the system to the publ ic and to enable neighbourhood views to be considered. However, th is provis ion is op t iona l , and as such, without fur ther q u a l i f i c a t i o n , could resu l t in no no t i f i ca t i on and no neighbourhood input. This s i tuat ion in a system with considerable d iscre t ionary powers a l located to o f f i c i a l s , represents a r i sk and could resu l t in uncertainty and arb i t ra ry decision making. Section 4 Regulations l i s t s development regulat ions. Authori ty is granted to relax the regulat ions for condi t ional uses (Section 3.2.4 and 3.3.3 - 65 -of Zoning Bylaw), and include such condit ions or addi t ional regulat ions as i t may decide as stated in Section 3.1 of RS-1. Regulations for outr ight uses cannot be re laxed. In sum, although considerable d iscre t ion ex is ts in the l eg i s l a t i on with respect to the t rad i t i ona l zoned areas, such power i s , con t ro l led somewhat by l eg i s l a t i on which requires consideration of speci f ied c r i t e r i a , and provides for optional n o t i f i c a t i o n . Considerable respons ib i l i t y is placed on the process followed by the approving author i ty . Some def ic ienc ies e x i s t , and w i l l be further examined la ter in the chapter. (d) Discret ion in Discret ionary Zoned Areas Council has acted within the broad enabling powers of the Charter in approving ODPs for four areas of the C i t y ; the West End (WED), Downtown (DD), False Creek (FCCDD), Central Waterfront (CWD). These four areas are true d iscret ionary zoned areas - t echn ica l l y , nothing is permitted out r ight . In each area, Council has adopted by bylaw, a Plan to regulate development wi thin the boundaries of these areas. Included in the Plan is a combination of regulat ions, p o l i c i e s , and guidel ines a l l involving considerable d i sc re t i on . The Plan then functions in part as a regulatory zoning bylaw, and in part as broad po l icy statement. A key point to remember here with respect to the l im i ts on d iscre t ion is that the enabling prov inc ia l l eg i s l a t i on requires compliance with any ODP. Therefore, any exercise of d iscret ion beyond the Plan l im i t s is without legal support. - 66 -The Downtown D i s t r i c t O f f i c i a l Development Plan w i l l be examined to determine the nature/extent of d iscre t ion and re la t ionsh ip to the study's three var iab les . (See Plan in Appendix IV). Council approved the ODP for Downtown by Bylaw 4912 in 1975, as provided for in Section 653 of the Charter. The Plan is not part of the Zoning Bylaw. The intent of the ODP Bylaw is to regulate the development of Downtown Vancouver, and in par t i cu la r t o : (1) T o improve the general environment of the Downtown District as an attractive place in which to live, work, shop, and visit. (2) T o ensure that all buildings and developments in the Downtown District meet the highest standards of design and amenity for the benefit of all users of the Downtown. (3) T o provide for flexibility and creativity in the preparation of development proposals. (4) T o encourage more people to live within the Downtown District. (5) T o support the objectives of the Greater Vancouver Regional District as referred to in "The Livable Region 1976/1986" as issued March 1975, to decentralize some office employment to other parts of Greater Vancouver by discouraging office developments considered inappropriate in the Downtown District. (6) T o improve transportation Downtown by encouraging greater transit usage, discour-aging automobile usage for journeys to work, and by maintaining automobile access for non-work trips including shopping, business and entertainment. The ODP provides the general framework for the preparation of development proposals. Permits are processed in accordance with the Zoning Bylaw. The ODP preamble states that "considerat ion of any development permit w i l l be based upon the regulat ions and requirements of the ODP and upon such guidel ines as Council may determine". It i s emphasized that "guidel ines approved by Council form an in tegra l part of the development control procedure - 67 -f o r Downtown, and that the DPB s h a l l be s a t i s f i e d that the s p i r i t and i n t e n t of such g u i d e l i n e s have been f u l f i l l e d . " The ODP recognizes that f l e x i b i l i t y should be granted to those preparing proposals, and acknowledges that "a s i g n i f i c a n t degree of d i s c r e t i o n i s given to the DPB in the i n t e r p r e t a t i o n of r e g u l a t i o n s , p o l i c i e s , and g u i d e l i n e s " . The ODP Bylaw has a se c t i o n on i n t e r p r e t a t i o n i n which a d i s t i n c t i o n i s made between r e g u l a t i o n s and i n t e r p r e t a t i v e requirements: 1. Regulations are set out f o r land use; maximum standards f o r b u i l d i n g d e n s i t y (FSR), parking, height. D i s c r e t i o n e x i s t s only up to the maximum p r e s c r i b e d . 2. I n t e r p r e t i v e requirements are set out with respect to permitted height, s o c i a l and r e c r e a t i o n amenities; design. These are f l e x i b l e g u i d e l i n e s open to i n t e r p r e t a t i o n . The ODP has 6 s e c t i o n s . Section 1 Land Use o u t l i n e s 9 broad c a t e g o r i e s of use which may be permitted, "subject to such cond i t i o n s and r e g u l a t i o n s as may be pr e s c r i b e d by the DPB". Use catego r i e s are a l l i n c l u s i v e , from r e s i d e n t i a l , commercial, o f f i c e , park, i n s t i t u t i o n a l , to h o t e l s . The only uses not permitted are medium and heavy i n d u s t r y . Section 2 R e t a i l Use C o n t i n u i t y r e q u i r e s the DPB to re q u i r e r e t a i l uses i n c e r t a i n areas, and to encourage same in others. However, the co n d i t i o n s and design are at the d i s c r e t i o n of DPB. Section 3 Density i s regulated by Floo r Space Ratio (FSR). A maximum FSR l i m i t i s p r e s c r i b e d i n 8 d i f f e r e n t d e n s i t y areas. The maximum i s not given - 68 -as a r i gh t . In order to achieve the maximum, the proposal must sa t i s f y the d iscret ionary judgments of the DPB largely based on Council approved guidel ines and p o l i c i e s . There is no "guaranteed" minimum. Section 4 Height of Bui ldings spec i f ies a maximum for 4 d i f fe rent height areas, except that the DPB, in i t s d i sc re t i on , can permit bui ld ings of excess height, subject to cer ta in technical c r i t e r i a as out l ined in the gu ide l ines, up to a maximum of 450 fee t . Section 5 Parking and Loading i den t i f i es cer ta in maximum parking requi re-ments, given the object ive of reducing t r a f f i c congestion and commuter parking. Some d iscre t ion is granted the DPB, re la t i ve to surface parking design, loading space, again subject to q u a l i f i c a t i o n s . Section 6 Socia l and Recreational Amenities and F a c i l i t i e s is provided in order to ensure these amenities are included for the enjoyment of downtown residents and employees. It is made up of two par ts ; f i r s t , is a l i s t of anc i l l a r y f a c i l i t i e s (saunas, day care, tennis courts) which, i f provided, w i l l not be included as part of FSR. Secondly, bonuses can be granted in the form of increased FSR i f "any pub l i c , s o c i a l , or recreat ion f a c i l i t i e s " are provided (subject to demonstrated need for any f a c i l i t y and pr ior Council approval). C r i t e r i a are out l ined to guide decisions of the DPB. No l im i t s on the amount of the bonus is s tated, but an addit ional and unique safeguard here is that the decision must receive pr io r Council approval. - 69 -In addit ion to ODP r i g i d regulat ions (within which d iscre t ion cannot exceed the st ipu lated requirements - e .g . height, parking, FSR (except i f e l i g i b l e for bonus)), and the ODP i t s e l f , Council has approved a set of Downtown Guidelines by resolut ion for the DD area to act as support documents in the exercise of d i sc re t i on . The Guidelines are th ree fo ld : 1. Planning Po l i c i es - broad po l icy statements dealing with four subjects: growth; land use and densi ty ; movement; urban form. 2. Design Guidelines - to form the basis for development proposals and to replace the r i g i d yard requirements; s ix subjects are addressed: publ ic open space; soc ia l and c u l t u r a l ; view; environment; physical design; parking. 3. Character Areas - 13 d i f fe rent areas in the Downtown which h igh l ight the present and future desired character; with recommendations. These in terpretat ive "Guidel ines" were prepared in recognit ion of the need for a substantive basis for decision making where considerable d iscret ionary power e x i s t s . 3. Other Leg is la t ion In addit ion to the ZDB and ODPs, there is addi t ional l eg i s l a t i on approved by Council which is an integral part of d iscret ionary zoning in Vancouver. These inc lude: - 70 -(a) P o l i c i e s , Guidel ines, Plans Approximately 50 documents under various names such as p o l i c i e s , gu ide l ines, and plans have been adopted by Council by resolut ion or bylaw since 1975 pr imar i ly to inform the pub l i c , development industry, planning s ta f f , and approving au thor i t i es , on cer ta in planning goals and ob ject ives, and the ways and means of achieving them. (A complete l i s t of these documents i s included in Appendix V). Their purpose is to act as a support in the negotiat ion and decision making process to reduce uncertainty and a rb i t ra r iness . The importance of a substantive basis in d iscret ionary decision making has at least been recognized judging from the number of documents under various names. However, a major d i f f i c u l t y with these documents is the i r lack of c l a r i t y , consistency, currency, and the i r piecemeal app l i ca t ion . The l inkage/di f ference among po l i cy , gu ide l ines, and regulat ions i s often not c l ea r , and format not uniform making interpretat ion and appl icat ion d i f f i c u l t . The d i f f i c u l t y here may not be so much with substance per se, as i t i s with organizat ion and structure.7 More fundamentally, what is lacking is an overal l development strategy or comprehensive plan that e x p l i c i t l y states Vancouver's goals and ob ject ives. Ex is t ing now is only a scattered and imp l i c i t strategy based on assumptions and on varied p lans /po l i c i es /gu ide l i nes . An overa l l comprehensive plan for the ent i re C i t y would provide a consolidated and c learer consensus, would balance a l l i n te res ts , and serve as integrated guide for decision making. - 71 -(b) Development Permit Board and Advisory Panel Bylaw 4876 This Bylaw (Appendix VI) out l ines the duties and membership of the Board and Panel. The Bylaw content is res t r i c ted to basic organizat ional issues. However, some safeguards to minimize abuse and provide for openness are included; for example, there is a requirement to hear any representat ions, receive submissions, and decisions are to be made in pub l i c . However, no requirement for no t i f i ca t i on is provided in the bylaw. Furthermore, an Advisory Panel of 6 c i t i z e n members i s created by th is bylaw to attend a l l meetings and make submissions to the Board pr ior to a l l dec is ions. These safeguards are in addit ion to the substantive requirements l i s t ed in Section 3.2.4 of the Zoning Bylaw. 4. Summary of Vancouver Leg is la t ion - Discret ion Vancouver's l eg i s l a t i on grants the approving author i ty , the D of P and DPB, considerable d iscret ionary powers. Their powers are l imi ted somewhat by requirements to consider the intent of zones and regulat ions, p o l i c i e s , and gu ide l ines. Moreover, the l eg i s l a t i on requires no t i f i ca t i on as deemed necessary by the approving author i ty . The ODP areas have an addit ional l im i t on the exercise of d i sc re t i on , in that i t cannot be exercised so as to contravene the Plan requirements. Relat ing back to the conceptual framework in Chapter I I , three prerequis i tes - 72 -to the exercise of d iscre t ion were out l ined. Vancouver l eg i s l a t i on appears to at least recognize the need to inform and safeguard d i sc re t i on . General ly, the l eg i s l a t i on responds to the three prerequis i tes as fo l lows : 1. Technical Standards: Regulations Development regulat ions and standards re la t ing to bui ld ing bulk and yards are provided in a l l zones. Authori ty ex is ts in the l eg i s l a t i on for the D of P/DPB to relax these provis ions as out l ined in Section 3 of the Zoning Bylaw, notwithstanding the spec i f i c regu la t ion. However, such re laxat ion shal l occur only af ter cer ta in in terpret ive precondit ions are sa t i s f i ed as spec i f ied in Section 3. Further, the provisions in ODPs and in condi t ional use sections of the ZB, grant power to impose such condit ions and addi t ional regulat ions as deemed necessary. However, in no circumstance can any re laxat ion and exercise of d isc re t ion contravene the requirements of any ODP. Outright approval uses are speci f ied in t rad i t i ona l zoning areas. Their regulat ions cannot be relaxed (except by the Board of Variance) as they are outside the j u r i s d i c t i o n of the DPB wherein author i ty ex is ts to re lax . Condit ional approval uses include a l l uses in ODP areas and those l i s t ed as such in t rad i t i ona l zoned areas. The D of P/DPB has authori ty to exercise d iscre t ion to relax the zoning prov is ions, up to maximum prescribed in any ODP. Again, guidance to the exercise of d iscre t ion is provided in Section 3 of the Zoning Bylaw. - 73 -2. Po l icy Bas is : Comprehensive Plan A substantive po l i cy basis is provided in various forms ranging from guidel ines to po l i c i es to plans out l in ing broad planning ob ject ives. These apply in a l l ODP areas and in scattered parts of the t rad i t i ona l zoned areas. Although lacking in c l a r i t y and comprehensiveness, these documents do serve a useful function in guiding the exercise of d iscret ionary judgment. However, a C i ty wide comprehensive plan giving ongoing d i rect ion for future growth does not e x i s t . 3. Procedural Safeguards Provis ion for no t i f i ca t i on where "deemed appropriate" ex is ts through-out the l e g i s l a t i o n . Leg is la t i ve provisions are more extensive for the DPB v ia provisions of the DPB Bylaw, than for the D of P where the only l e g i s l a t i v e constraints are contained in Section 3 of the Zoning Bylaw. No express provis ions address issues of b i a s / p a r t i a l i t y , the second component of natural j u s t i c e . However, DPB meetings are pub l i c , and having an Advisory Panel provides some publ ic scrut iny . Moreover, there always ex is ts the opportunity to appeal the decision of the D of P or DPB to the B of V. Furthermore, there is a f i n a l option open for j u d i c i a l review. A further safeguard, a lbe i t subt le , i s that the l e g i s l a t i v e body is the master and can remove the delegated approving authori ty at any time. Such master-servant re la t ionsh ip must be recognized. - 74 -In sum, the Vancouver l eg i s l a t i on provides wide d iscret ionary authori ty to planning o f f i c i a l s and boards.. Within prescribed ODP l im i ts and excluding outr ight uses in t rad i t i ona l zoned areas, the D of P/DPB can re lax provisions where i t w i l l not, in the i r judgment, contravene the substantive/procedural l im i t to the i r d iscre t ion as out l ined in the l e g i s l a t i o n , pa r t i cu l a r l y Section 3 of the Zoning Bylaw. Further, they have authori ty to include such condit ions and addi t ional regulat ions on condi t ional uses as they may decide. Moreover, the l eg i s l a t i on grants power to refuse an appl icat ion that complies with the regulat ions. Technical ly speaking, there are no development r ights for condi t ional approval uses. Notwithstanding that the l eg i s la t i on requires spec i f ied j u s t i f i c a t i o n to re lax prov is ions , and to exercise d i sc re t i on , the bottom l ine is that the l eg i s l a t i on provides considerable d iscret ionary powers to planning o f f i c i a l s and boards.8 The Vancouver system with wide d iscret ionary author i ty places pressure on the process and the planning s ta f f in working with the l eg i s l a t i on to achieve pos i t i ve r esu l t s . Section D w i l l examine issues re la t i ve to the Process. - 75 -D. VANCOUVER PROCESS - Discret ionary Zoning 1. Introduction Discret ionary zoning places considerable pressure on the process i t s e l f as was out l ined in Chapter I I . For example, addi t ional inputs are necessary to properly address judgments and to provide for extensive negotiat ion compared to the se l f -execut ing Euclidean Zoning. This Section examines the development permit process with the aid of a flow chart . An analysis of the process re la t i ve to the l eg i s l a t i on and three prerequis i tes is provided. Information was gathered large ly from Ci ty f i l e s and resources, attending DPB meetings, and extensive interviews with technical and professional C i ty planning s ta f f . 2. Development Permit Process (a) Flow Chart Figure 3 i s the stated development permit process/Flow Chart which explains the ent i re process s tar t ing with pre-appl icat ion inqui ry , through negot iat ion, and concluding with a decision on the issuance of a development permit. - 76 -FIGURE 3 CITY OF VANCOUVER DEVELOPMENT PERMIT PROCESS COMPLETE D PA FOLLOWING APPROVAL OF PRELIMINARY OPA PRELIMINARY MEETING WITH THE APPLICANT • PLANNING • ENGINEERING • SOCIAL PLANNING APPLICATION N EHOOIHY r~VI DEVELOPMENT PERMIT APPLICATION 'PRELIMINARY OR COMPLETE i ft ni i r DIRECTOR OF PLANNING PLAN CHECKERS AND DEVELOPMENT PLANNERS PROCESS DP A SITE VISIT HISTORY. LIAISON WITH OTHER DEPARTMENTS AND CO-ORDINATION WITH APPLICANT 3 JE 7TT\ STAFF COMMITTEE • PLANNING • ENGINEERING • SOCIAL PLANNING • BUILDING • HEALTH REFERRAL TO: • PLANNING • ENGINEERING • BUILDING SOCIAL PLANNING URBAN DESIGN PANEL 3L APPROVAL OR '—N REFUSAL I — ] / \ 7^ DEVELOPMENT PERMIT BOARD REVISIONS IF K CONDITIONAL ) APPROVAL I V PERMIT ISSUED BOARD OF VARIANCE ADVERTISEMENT LOCAL AREA PLANNING COMMITTEE CHECK WITH CITY COUNCIL Source: Eight Years A f t e r by C i t y of Vancouver Planning Department; October, 1981 - 77 -The process is large ly se l f explanatory; however, there are several subtle issues that require c l a r i f i c a t i o n , some of which may not be part of the flow chart . (b) Descript ion of Process The D of P and DPB are the key f igures since they are the f i n a l decision makers. However, the i r decision is preceeded by considerable administrat ive a c t i v i t y . Appl icat ions for outr ight approval uses (non discret ionary) are handled according to the Bylaw and are not considered further in th is study. If appl icat ion is for a condi t ional approval use, than a senior planning s ta f f member determines i f the appl icant should go before the D of P or DPB for dec is ion , as provided for in Section 3.3.3 of the Zoning Bylaw. This s ta f f determination (to refer to e i ther the D or P or DPB for decision) is not based on l eg i s l a t i ve d i rec t ion but is an internal administra-t ive arrangement whereby the DPB is only assigned the "major app l ica t ions" (those deemed to be of major impact, complexity, or controversy). The D of P considers those appl icat ions deemed to be " r e l a t i v e l y minor, or non-content ious". Of a l l condi t ional use appl icat ions submitted, the D of P considers 90%; and the D of P, personal ly considers a few of these. The balance are considered by s ta f f designated by him. - 78 -The s ta f f judgment on who decides (D of P or DPB) is important because appl icat ions submitted to the DPB are processed more r igorously than those considered by the D of P. Even so, the option does remain to refer an item to the DPB at a la ter stage i f "deemed necessary by s ta f f " (e .g . considerable c i t i z e n input, major issues a r i s e ) . In any event, the appl icat ion proceeds through an i n i t i a l process including c i r cu la t i on to other departments, and plan checking. Since the l eg i s l a t i on grants d iscre t ion to relax prov is ions, a varying amount of negotia-t ion occurs between the s ta f f and appl icant . Staf f is to "have regard" to the regulat ions and intent of the zone, any approved Council p o l i c i e s , gu ide l ines, or p lans, and to exercise sound judgment accordingly. Trade-offs are common among the varying object ives of the d i f ferent par t ies involved. The Urban Design Panel and any loca l area planning committees are advised of the app l i ca -t ion and provide input. The option also ex is ts to not i fy nearby property owners by l e t t e r . The decision to not i fy i s at the d iscre t ion of s ta f f , to in e f fec t , determine for a neighbourhood whether a proposed project warrants the i r input. A l l comments received are considered in rendering a dec is ion . If considerable response is received, a publ ic meeting may be held to c l a r i f y posi t ions and seek compromises pr io r to any dec is ion . For non DPB scheduled items ( i . e . those deemed minor, non content ious), the D of P (or designate) w i l l make a decision on the appl icat ion af ter gather-ing a l l the necessary information, in accordance with the d iscret ionary powers that are granted. No further steps are general ly required.9 - 79 -For items going to the DPB, fur ther safeguards and steps in the process are required. The item goes before a development permit s ta f f committee (Senior C i ty O f f i c i a l s ) for recommendation pr io r to the DPB meeting. A lso , i t i s C i ty po l icy to place a notice of the appl icat ion in the newspaper, and post a sign on the property (1976 Council p o l i c y ) , at least 10 days pr io r to the meeting. The DPB meetings held every Monday are open to the pub l i c . The Board hears a presentation on each item from planning s ta f f with a recommenda-t ion to approve with/without condi t ions, or to refuse. A wri t ten s ta f f report is also submitted advising of the app l i ca t ion 's compliance with the zone or plan in quest ion, re la t ionsh ip to Council guidel ines and p o l i c i e s , and the response, i f any, to no t i f i ca t i on and advertisement. The appl icant i s then given the opportunity to be heard, as is anyone e l se . Pr ior to a dec is ion , the Chairman (D of P) requests input from each member of the Advisory Panel (representatives from the general pub l i c , design professionals and development indust ry) . The three member Board then votes in publ ic on the appl icat ion and gives reasons for the i r dec is ion . In cases of dispute or i f further input is needed, the Board may request p r io r Council advice. Any decision of the D of P or DPB can be appealed to the Board of Variance. (c) Analysis of Process The Flow Chart shows the importance of the process to the d iscret ionary zoning system. The need for competent decision makers has been referred to e a r l i e r . However, i t i s also important for a l l the component parts of the process to be e f f ec t i ve . Planning Department s ta f f are, in pa r t i cu la r , key - 80 -actors in the process given the wide administrat ive options open to them. Moreover, they have a major inf luence on the outcome since the decision maker is often not involved un t i l presented with the i r f i n a l recommendation. Consequently, s ta f f responsible for negotiat ion must exh ib i t the qua l i t i es iden t i f i ed in Chapter I I : competence, professional ism, e th ica l behavior, sound judgment, comprehensiveness, and knowledge of regulat ions. Of course, the s ta f f and decis ion makers are l imi ted in the i r ro le by many factors including the provisions in the l e g i s l a t i o n , the process i t s e l f , and qua l i t y of documents adopted to inform the exercise of d i sc re t i on . The linkage among p o l i c i e s , guidel ines and regulat ions must be c l ea r , and the substance be comprehensive and current to be of assistance in the process. The Vancouver development permit process and use of d iscre t ion has been under some scrut iny by the C i ty i t s e l f and some outside bodies since i t s inception in 1974. For example, three separate reviews and formal discussion occurred in 1978 and 19791° focussing pr imar i ly on the development permit process. The general consensus of these reviews was that the basic f l e x i b l e d iscret ionary development control system and the D of P/DPB system was working w e l l . Cr i t i c isms related to the length of time of uncertainty for app l ica t ions. It was f e l t the process took too long, was too complex, and that there was no cer ta in ty un t i l a decis ion was made. The recommendation from these reviews was pr imar i ly to increase the speed of the process, thereby reducing the time of uncertainty. Substantive issues re la t ing to a substantive planning basis and procedural safeguards, while addressed, were of r e l a t i v e l y less s ign i f i cance . - 81 -Some s ta f f have acknowledged that time pressures and pre-occupation with the process and expediency has resu l ted , at t imes, in a " f l y by the seat of your pants, based on experience" approach. Such expedient response may be p o l i t i c a l l y acceptable and may reduce c r i t i c i s m in the short term, but decisions without proper foundation could undermine planning object ives and the d iscret ionary zoning process. In general, however, s taf f expressed basic sa t i s fac t ion with the process, notwithstanding the i r recognit ion that pressures for expediency may have at times resulted in only essent ia l elements being analyzed and "somewhat super-f i c i a l " treatment of a l l the issues. However, despite de f i c i enc ies , Planning s ta f f ( including the D of P) are supportive of the current system, and the nature and extent of d iscret ionary powers they possess. The question of f a i r ness / impa r t i a l i t y / b i as ar ises as the decision makers (DPB, D of P) are c i t y o f f i c i a l s (as required by the Charter) . Both the fact and appearance of fa i rness is required in decision making. Several national studies have been done on the re la t i ve advantages of d i f fe rent decision process systems, with a var ie ty of conclusions. No f i rm answer e x i s t s . However, Vancouver should examine th is issue ca re fu l l y to see i f an al ternate system (e .g . Hearing Examiner) may achieve a greater publ ic benef i t . The issue of appeals also ra ises concern. F i r s t , the author suggests that provis ion of appeal is necessary given the wide d iscret ionary powers granted. However, the current mechanism, the Board of Variance, may not be appropriate. The Board of Variance is a lay body establ ished to consider - 82 -minor variances because of hardships, and i t s capacity to address the complexit ies and subt le t ies of major projects is questionable. Again, examination could be given to other options such as widening the Board's mandate, the creation of a Prov inc ia l appeal body, or even appeal to the l e g i s l a t i v e , po l icy making body, Ci ty Counci l . 3. Summary of Process The stated process, in general , mirrors the l eg i s l a t i on in that i t provides the mechanism for d iscret ionary decision making as prescr ibed. The study's three prerequis i tes are incorporated into the process. A substantive basis in terms of regulat ions and po l icy is the foundation for the extensive negotiat ions which occur. Procedural safeguards are included in the process such as n o t i f i c a t i o n , appeal, advertisement, signage, and input from non-ci ty bodies, although many are op t iona l . The d iscret ionary zoning process is an administrat ive arrangement combining l e g i s l a t i v e requirements with administrat ive procedures deemed relevant by Planning s ta f f . Consequently, considerable leeway and respons ib i l i t y is given to a l l par t ic ipants in the process, in pa r t i cu la r , the planning s ta f f . Given the wide d iscret ionary administrat ive options ava i lab le to s ta f f in the process, i t is often d i f f i c u l t to comprehend or predict the steps or outcome of the process. While acknowledging that substantive provisions must be in terpret ive in a d iscret ionary zoning system, the process of decision making should not be. A nebulous process can enhance the power of - 83 -those in con t ro l , thereby making process comprehension d i f f i c u l t and threatening overa l l f a i rness . It may therefore be concluded that there is need to c l a r i f y , document and increase cer ta in ty in the process. The process analysis and i t s complexity demonstrates the importance of coherence in a l l of i t s components. Competent planning s ta f f i s required, in par t i cu la r negotiators who make judgments/trade-offs on appl icat ions and f i n a l i z e recommendations. A lso , the process and Flow Chart shows there are less procedural safeguards required of the D of P in the exercise of d i sc re t i on , than the DPB. As a resu l t , the potent ia l fo r abuse increases given the D of P's wide d iscret ionary powers. From a review of external studies of the system indicated e a r l i e r in th is sec t ion , s ta f f reports to Counci l , and interviews with s ta f f describing constant pressures for rapid permit issuance, i t seems there may be a higher re la t i ve p r i o r i t y on process expediency than on planning substance and procedural safeguards. If such a judgment is accurate, planning object ives could be compromised. In sum, notwithstanding that the l eg i s l a t i on and process addresses the three prerequis i tes of the study, there are several c r i t i c a l de f ic ienc ies which could jeopardize the success of Vancouver's d iscret ionary zoning system. Section E, the f i n a l part of th is chapter consol idates the f indings and concludes th is study. - 84 -Figure 4 is a chart which summarizes in matrix form several var iables associated with the exercise of d iscre t ion in the issuance of development permits by the two decision makers examined in the study, the D of P and DPB (the B of V is also included for information). In pa r t i cu l a r , the chart out l ines the approving au thor i t i es ' re la t ionsh ip to the three prerequis i tes to the exercise of d i sc re t i on , and should be of assistance in comprehending the conclusions and in c l a r i f y i n g Vancouver's d iscret ionary zoning system and i t s conformance with the three prerequis i tes of the study. LEGISLATIVE AUTHORITY AREA OF JURISDICTION EXTENT/NATURE of DISCRETION CONCEPTUAL FRAMEWORK T H R F . F . P R E C O N D I T I O N S TO DISCRETIONARY ZONING DECISIONS „ SUBSTANTIVE. BASIS 1 PROCEDURAL SAFEGUARDS Technical Basis P o l i c y Basis CD NUMBER OF APPLICATIONS (1980) FURTHER APPEAL DIRECTOR of P L A N N I N G (D of P) Vancouver Charter (Sec. 565 and 565A) • Zoning and Development Bylaw 3575 (Sec. 3.3.1) City wide • outright uses > conditional uses (deemed "minor") • General Source Zoning Bylaw Sec. 3.3.3 and 3.3.4 • Cannot con-travene ODP • Regulations of Zoning Bylaw and ODP |»50 Council adopted plans, p o l i c i e s , guidelines •No Citywide comprehensive plan • Optional n o t i f i c a t i o n provisions • outright 137 • c o n d i t i o n a l 1182 • relaxation of regulation! 230 B of V DEVELOPMENT PERMIT BOARD (DPB) • Vancouver Charter (Sec. 565 and 565A) • Zoning and Development Bylaw 3575 (Sec. 3.3.1) [•Development Permit Board Bylaw 4876 Cit y wide •conditional uses (deemed "major") • General Source Zoning Bylaw Sec. 3.2.4 • Cannot con-travene ODP •Regulations of Zoning Bylaw and ODP •50 Council adopted plans, p o l i c i e s , guidelines •No Citywide comprehensive plan • Optional n o t i f i c a t i o n provisions • Council p o l i c y to "post" s i t e s (major appln) • DPB Bylaw requirements - public - hearings - advt. • cond i t i o n a l 89 B of V BOARD of VARIANCE (B of V) [•Vancouver Charter (Sec 572 and 573) |.B of V Bylaw 3844 City wide • appeal only Cannot con-travene ODP • Technically none • Technically none (except "hardship") 1 Optional n o t i f i c a t i o n provisions Meetings i n public Advertise required 328 none (Charter 573 (6)) For information only (not part of study) - 86 -E. CONCLUSIONS A. Wide d iscret ionary powers are granted to , and exercised by, Vancouver planning boards and o f f i c i a l s . B. The Vancouver d iscret ionary zoning l eg i s l a t i on and process, in general terms, complies with the intent of the conceptual framework outl ined in Chapter I I , which required three precondit ions pr ior to the exercise of d iscre t ion to prevent abuse and ad hoc decis ion making. A substantive basis is required in two forms: (1) Technical Bas is : Standards; (2) Po l icy Bas is : Comprehensive Plan. Th i rd ly , procedural safeguards are required in the process to prevent abuse of delegated d i sc re t i on . In general : 1) Spec i f i c technical standards or development regulat ions are provided for each zone in the Zoning Bylaw and regulat ion provis ions of ODPs, where i t is deemed necessary to make requirements s p e c i f i c . 2) A broad po l icy basis is found in a ser ies of documents (approximately 50) approved by C i ty Council since 1974 under various names, such as p o l i c i e s , p lans, gu ide l ines. In general , these documents are intended to be somewhat f l e x i b l e and in terpret ive to provide d i rec t ion and foundation in making ind iv idual d iscret ionary dec is ions. However, no c i ty-wide comprehensive plan e x i s t s . - 87 -3) Procedural safeguards are out l ined in the Zoning Bylaw, ODP, DPB Bylaw, resolut ions of Council and internal administrat ive procedures. Safeguards include no t i f i ca t i on prov is ions, r ight of appeal, and in cer ta in s i tuat ions r ight to hearing, posting of s igns, publ ic meetings, input from non c i t y bodies, e tc . C. Notwithstanding apparent broad compliance with the conceptual frame-work, several major de f ic ienc ies in the Vancouver d iscret ionary zoning system can be iden t i f i ed re la t i ve to the three prerequ is i tes . The study concludes that the fo l lowing de f ic ienc ies ex is t creat ing the potent ia l for abuse, and arb i t ra ry decision making: Def ic iencies re la t ing to Substantive Prerequis i tes (Technical  Standards and Po l icy Basis) 1. Confusion ex is ts among documents approved by Council intended to provide a substantive basis to guide d iscret ionary judgments. More than 50 documents under t i t l e s such as gu ide l ines, p o l i c i e s , p lans, have been adopted. However, in general , they do not provide a workable foundation for decision making but often i nh ib i t change and create delay, in so far as the i r intent is not e x p l i c i t and the i r appl icat ion is often out of date. The linkages among regulat ions, gu ide l ines, and p o l i c i e s are often not c l ea r , nor are the implementation mechanisms to achieve po l i cy . The d i f f i c u l t y may not be so much with substance per se, as i t is with organization and st ructure. Consequently, increased uncertainty r esu l t s . - 88 -Comment: Consideration should be given to a program to c l a r i f y , update and ref ine a l l support documents; consolidate and separate a l l regulatory and po l icy documents; to codi fy guidel ines where establ ished pr inc ip les e x i s t ; to ensure po l i cy i s properly implemented. A substantive basis is c r i t i c a l to the system. When a proper framework e x i s t s , i t becomes easier for the planning substance to be use fu l . Discret ion must be seen as object ive decision making based on sound po l i c ies /gu ide l i nes rather than arb i t ra ry action of a delegated author i ty . 2. Condit ional uses in t rad i t i ona l zoning areas have a minimal po l icy basis for the exercise of d i sc re t i on . No o f f i c i a l development plan e x i s t s , and only in scattered areas does a Council P lan /po l i cy /gu ide l ine apply. Therefore, there i s a potent ia l for ad hoc and piecemeal decision making in these areas. Comment: Consideration should be given to preparation of a f l e x i b l e , po l i cy oriented comprehensive c i ty-wide p lan; or at the least develop interim po l icy statements/development guidel ines for a l l non ODP port ions of the Ci ty to guide the exercise of d i sc re t i on . - 89 -Def ic iencies Relat ing to Procedural Safeguards 3. The act and method of no t i f i ca t i on is d iscret ionary for condi t ional approval uses. As such, i t po ten t ia l l y threatens the openness of the d iscret ionary zoning system as i t allows re laxat ion of regulat ions without the input of the neighbourhood d i r e c t l y af fected. Comment: Consideration should be given to no t i f i ca t i on being required for a l l condi t ional uses such as within a 200 foot radius of a s i t e . It i s recognized that th is places an increased burden on process. However, in a d iscret ionary system both the fact and appearance of fa i rness and openness should outweigh process inconveniences. In f ac t , some say the only safeguard in a d iscret ionary zoning system is f u l l publ ic review. A second, more expeditious a l te rna t i ve , would be to advert ise a l l condi t ional uses in the newspaper pr ior to dec is ion , and allow publ ic input. 4. L i t t l e publ ic documentation of the process ex is ts outside of the broad l eg i s l a t i ve prov is ions . As such, uncertainty, misunderstanding, mist rust , and publ ic nonconfidence resu l t s . Considerable administrat ive leeway ex is ts in the d iscret ionary planning process and heavy pressures on s ta f f ex is t in making - 90 -prel iminary administrat ive decisions throughout the process, pr ior to decision by D of P or DPB. Moreover, the process often appears confusing and inconsis tent . Comment: Consideration should be given to preparation of a publ ic process guide. This would include the philosophy and intent of the process, followed by l eg i s l a t i ve and administrat ive procedures. This includes out l in ing options open to s ta f f in the process, and c r i t e r i a used in judgment. Such process guide would check power, and improve p r e d i c t a b i l i t y and publ ic confidence in the system. 5. Unbiased and impart ia l decis ion making is threatened i f the decision maker is also the negotiator. This can occur as the negotiator may be d i r e c t l y involved in the dec is ion , as the D of P, or on his behalf. Notwithstanding safeguards in place and the need for expert ise in the decision making, there is concern that there be substant ia l freedom from b ias . Comment: One option is to require that the decision maker not be part of the negotiat ion process. Again, the fact and appearance of fa i rness is important. Consideration could even be given to - 91 -assigning decision making power to a qua l i f i ed ind iv idual or committee outside the system, such as the Hearing Examiner approach, where expert ise and publ ic awareness s t i l l e x i s t s , but i s more l i k e l y to be free from bias and p a r t i a l i t y . Safeguards are less rigorous for the D of P, re la t i ve to DPB, notwithstanding the powers and j u r i s d i c t i o n can be very s i m i l a r . Potent ia l for abuse by the D of P appears greater. Comment: Consideration should be given to increasing the procedural safeguards in the exercise of d iscre t ion by the D of P. A possible solut ion would be to advertise a l l items to be considered by him. It may also be helpful to provide a publ ic record ind icat ing the ra t iona le for dec is ions, including compliance with po l i c i es and gu ide l ines, and minutes of any negotiations and meetings. Again, the fact and appearance of fa i rness is c r i t i c a l to i n s t i l l and maintain confidence and increase accountab i l i ty . Appeal is l imi ted to the Board of Variance, a lay body with l imi ted expert ise and j u r i s d i c t i o n . Potent ia l ex is ts for unfa i r and unqual i f ied considerat ion, given the complexity of appl icat ions before them for dec is ion . - 92 -Comment: Consideration should be given to widening the mandate and membership of the Board of Variance; or creat ing a Prov inc ia l appeal or review agency; or even providing for d i rec t appeal to Counc i l . In any event, the provis ion of the r ight to appeal a decision to a qua l i f i ed body is necessary given wide powers delegated to boards and o f f i c i a l s . General Comments 8. Consideration should be given to estab l ish ing a monitoring system, whereby the d iscret ionary zoning system and a l l i t s components ( p o l i c i e s , regulat ions, guidel ines) could be monitored against r e a l i s t i c object ives for the system on a regular bas is ; such as every two years, with an overa l l review required every f i ve years. 9. Every e f fo r t should be made to ensure high standards are maintained for se lect ion of key negotiat ing s ta f f and decis ion makers. 10. -- Amendments to the Zoning Bylaw have occurred piecemeal over time in response to ongoing pressures. Consequently, the Bylaw may not be as c lear and precise as desired in intent and in terpre ta t ion . A comprehensive rewri te would more c l ea r l y es tab l ish the ru les , and increase p red i c t ab i l i t y and cer ta in ty . - 93 -F. SUMMARY The study concludes that Vancouver d iscret ionary zoning complies with the overa l l intent of the conceptual framework. However, major de f ic ienc ies ex is t as stated in th is chapter and should be corrected to achieve greater publ ic benef i ts from the system. Improving the qua l i t y and organization of the substantive basis w i l l make appl icat ion of d iscre t ion more reasoned. Providing addi t ional procedural safeguards w i l l lessen the p o s s i b i l i t y of ad hoc and arb i t ra ry decision making. This w i l l increase cer ta in ty and publ ic confidence in the system. The substantive basis and procedural safeguards, in e f fec t , act as checks/balances and po l ice the system to ensure maximum publ ic benef i t . Unnecessarily r e s t r i c t i v e l im i ta t ions on the d iscret ionary zoning process might e f f ec t i ve l y preclude many benef i ts . A balance needs to be sought between protect ing the r ights of a l l par t ies and the p r a c t i c a l i t i e s of the way the process works. Implementing the study's suggestions into an already establ ished and workable system, although requir ing addit ional time and resources, should help to achieve a s t i l l better system more in accord with the prerequis i tes that have been i den t i f i ed . - 94 -FOOTNOTES CHAPTER IV 1. C i ty of Vancouver Planning Department, 8 Years A f te r , 1981, p. 2. 2. This requirement is d i f ferent from the provisions for the balance of the Province under the Municipal Act where the O f f i c i a l Community Plans are only binding on the actions of Counci ls . 3. C i ty of Vancouver Planning Dept., 8 Years A f te r , 1981, p. 1. 4. This appl ies to the maximum f l oo r space for commercial uses and the t ransfer of f l oo r space within the FM-1 (Fairview Slopes) area. 5. This applies to the C-3A (Commercial) D i s t r i c t ; contains unique provis ions for Council to decide in place of DPB. 6. The only exception here is that there is author i ty to refuse even an outr ight use i f any of s ix condit ions ex is t as iden t i f i ed in Section 3.3.2 of the Zoning Bylaw. The " las t resor t " p rov is ion , however, is ra re ly used. 7. The d i f f i c u l t y seems to be related to the organizat ion and structure of these support documents. For example, Council approved in 1975 a set of "planning p o l i c i e s " as part of the Downtown ODP. The fol lowing four major po l i c i es ex is t for land use and densi ty : "1) Do not increase commercial o f f i ce dens i t i es . 2) Encourage res iden t ia l developments to occur downtown. 3) Encourage conservation of areas valued by the community. 4) Adjust density controls to permit some commercial development and also encourage res iden t ia l development." However, these po l i c i es are extremely broad, have no time frame, and no implementation mechanism. To be more use fu l , what is needed, at l eas t , is a more spec i f i c statement of the object ive (even quant i f ied) , followed by ou t l in ing the nature and extent of the program necessary to achieve i t . The linkage between the po l icy and regulatory tool must be c learer . 3. In examining the Vancouver l e g i s l a t i o n , several side issues ar ise regarding the extent of d i sc re t i on , where the l eg i s l a t i on is s i l en t or the intent i s open to some in terpre ta t ion . While th is area is not central to the thesis and the conceptual framework, i t i s of in terest in a more legal sense. L i t t l e reported case law ex is ts in B.C. on t h i s . For example, the enabling l eg i s l a t i on in Section 3.2.4 gives authori ty to the DPB to " re lax p rov is ions" . While th is c l ea r l y allows authori ty to be - 95 -less r e s t r i c t i v e , does i t also give power to be more r e s t r i c t i v e , or to impose s t r i c t e r requirements (e .g . require a 30 foot height l im i t when 45 foot is permitted). While th is occurs in p rac t i ce , i t s authori ty may be questioned. A lso , with respect to approving a use not l i s t ed in a zone, the l eg i s l a t i on is s i l en t and does not s p e c i f i c a l l y preclude i t . For example, the l eg i s l a t i on says in 3.3.3 "notwithstanding p r o v i s i o n s . . . " , wherein approving a use not l i s t ed could be interpreted as in t ra v i r es . However, such action would be tantamount to a rezoning (a l e g i s l a t i v e ac t ) , and would not l i k e l y occur given the d i rec t ion to consider gu ide l ines, e tc . in making a dec is ion . However, no c lear posi t ion on th is is stated in the Vancouver l e g i s l a t i o n . 9. The Flow Chart indicates a s ta f f committee meeting considering items dealt with by the D of P, p r io r to the D of P making a dec is ion . However, in p rac t i ce , th is does not occur as the s ta f f committee meeting considers only items scheduled for the DPB. 10. Three reviews were undertaken in 1978, 1979: a) Discret ionary Zoning Seminar, sponsored by the Vancouver Planning Commission, Oct. 1978. b) Review of Central Area Development Control Powers, by Ci ty Manager's O f f i ce , 1979. c) UDI, AIBC, C i ty Hal l L ia ison Committee on Development Permit Process, 1979. - 96 -CHAPTER V  EPILOGUE Chapters II and III examined the r i se of f l e x i b l e zoning techniques involving increasing administrat ive d isc re t ion delegated to o f f i c i a l s by l e g i s l a t i v e bodies. A conceptual framework was establ ished which speci f ied three precondit ions to the exercise of d i s c r e t i o n . A substantive basis i s required in two forms: f i r s t , technical bas is : standards, and secondly, po l icy bas is : comprehensive p lan. Th i rd ly , procedural safeguards are required to minimize potent ia l for the abuse of d iscret ionary powers. Chapter III examined f i ve spec i f i c f l e x i b l e techniques in use today involv ing a considerable exercise of d i sc re t i on . The need for each technique to respond to the conceptual framework was demonstrated. Chapter IV examined the Vancouver d iscret ionary zoning system to determine the extent/nature of d iscre t ion re la t i ve to the conceptual framework. The study revealed that f i r s t , wide d iscret ionary powers were delegated to administrat ive o f f i c i a l s / b o a r d s . Secondly, the Vancouver system complied with the intent of the conceptual framework, but several major de f ic ienc ies ex is ted . The de f i c i enc ies , in general , were that a basic framework existed in the l eg i s la t i on and process, but that i nsu f f i c i en t at tent ion was given to a substantive basis in decis ion making and the provis ion of procedural safeguards. Some suggestions were made to t ighten up the system thereby reducing potent ia l for abuse, increasing cer ta in ty , r a t i o n a l i t y , and publ ic confidence in the system. - 97 -What has become increasingly evident in th is study, both from the l i t e ra tu re and from the Vancouver study, is the necessity for a land use control system to have a l l components f i rmly establ ished and working e f f ec t i ve l y . This is pa r t i cu l a r l y true in the case of d iscret ionary zoning where considerable d iscret ionary authori ty i s delegated, and rules are not determined in advance, nor is the process se l f - regu la t i ng . In addit ion to the precondit ions of substance and procedure, the study revealed an area which j u s t i f i e s restatement; that being the need for negotiators and decision makers to be of the highest competence and expert ise to make the subtle judgments and tradeoffs that are necessary. The nature of d iscret ionary zoning is such that i f the system cannot be kept f i n e l y tuned, and responsive to rap id ly changing publ ic needs, then i t s capacity to be a pos i t i ve regulatory tool diminishes. In such a case, i t may be more desirable to revert to the former Euclidean approach or at least to provide reduced f l e x i b i l i t y / d i s c r e t i o n ; in so doing, at least cer ta in ty is increased notwithstanding r i g i d i t y and other de f ic ienc ies of the Euclidean approach. This study does not promote revert ing to a Euclidean system; nor, however, does i t suggest using a complete d iscret ionary system without safeguards. Su f f i c ien t evidence ex is ts - some of which has been provided in the thesis -to discount e i ther extreme pos i t i on . The study acknowledges the need in modern society for increased delegation by the l e g i s l a t i v e body to administrat ive o f f i c i a l s . The question becomes - 98 -"how much is enough", and to what extent should provis ion of delegated powers be ascerta inable. The appropriate balance between f l e x i b i l i t y and pred ic t -a b i l i t y w i l l always be questioned. This dua l i ty w i l l never be resolved to everyone's s a t i s f a c t i o n . Evidence of th is ex is ts throughout the l i t e ra tu re and from the Vancouver study. One must acknowledge that d iscret ionary zoning is la rge ly judgmental, and often there may be no universal answer. I t i s a human, creat ive process, and w i l l often mean d i f fe rent things to d i f fe rent par t i c ipan ts . The system is by necessity complex. Moreover, uncertainty w i l l always ex is t in a d iscret ionary zoning system. Administrat ive changes can reduce the time of uncertainty, but w i l l never be able to negate i t . Pos i t i ve changes to substance (basis) and procedure w i l l increase cer ta in ty , but uncertainty w i l l always ex is t to some degree in d iscret ionary zoning by design and des i re . Ea r l i e r in the thes i s , d iscre t ion was defined as " ind iv idua l i zed app l ica-t ion of administrat ive judgment which allows a var iable response and solut ion to a problem".! In order to i n s t i l l confidence in a d iscret ionary zoning system, th is d iscret ionary act ion must be seen to be an object ive decis ion based on sound p r inc ip les rather than an arb i t rary whim of an o f f i c i a l . The d iscret ionary prerogative must not be abused. Unless conscious ef for ts are made to es tab l i sh , maintain and monitor an e f fec t i ve and. current d iscret ionary zoning system, i t w i l l not achieve maximum publ ic benef i t . Results w i l l erode and compromise the va l i d publ ic purpose intended for i t , and increase the potent ia l for abuse and capr ic ious ac t ion. - 99 -No doubt, the r i s ks are greater in u t i l i z i n g a d iscre t ionary zoning system, but the potent ia l benefi ts are also greater. A d iscret ionary zoning system should be used only i f the C i t y , desirous of greater publ ic benef i ts , i s prepared to support such desires with a planning process involving a d iscret ionary zoning mechanism which incorporates the precondit ions out l ined in the thes i s . Babcock in C i ty Zoning (1979) states tha t : " F i r s t , nothing is so important to a successful scheme of land use regulat ion as d iscre t ion in i t s admin is t rat ion; second, nothing is more subject to destruct ive abuse than administrat ive d i sc re t i on "^ Here, the remedy to the potent ia l for abuse is not to take d iscre t ion away, but rather to inform and control i t so as to make i t a pos i t i ve t o o l . RELEVANCY OF STUDY TO PLANNING It must be remembered that d iscret ionary zoning i s , simply, a tool in the planning process. Discret ionary zoning does not const i tu te planning. It i s a mechanism in the broader planning spectrum, whereby planning goals and objectives can be implemented; notwithstanding that the contrast between the " t o o l " and the "p lan" or the "planning process" is more d i f f i c u l t to determine in d iscret ionary zoning than in the Euclidean approach. In th is context, the land use control system is only as good as the planning which i t attempts to implement. If a comprehensive plan does not - 100 -e x i s t , or i s outdated, or i f l inkages among support documents such as p o l i c i e s , gu ide l ines, regulat ions, are not c l ea r , the chances for success of a d iscret ionary zoning approach are reduced. As was stated ea r l i e r in the thes i s , the concept of planning changes somewhat with a d iscret ionary system. While s t i l l acknowledging the capacity of long range planning to serve cer ta in purposes, the emphasis l i e s on short range programmatic planning as a more appropriate partner to a f l e x i b l e , d iscre t ionary zoning system. The land use control system and the plan must be dynamic and work together within an ongoing planning process, supported by procedural safeguards. A l l three prerequis i tes must be provided and work together to achieve the maximum publ ic benef i t , within a comprehensive planning process. DIRECTIONS FOR FURTHER RESEARCH This thesis examined only one area of d iscret ionary zoning, a lbe i t important, that being the need for cer ta in precondit ions to the exercise of d iscre t ionary powers by delegated o f f i c i a l s . The emphasis was on zoning structure and administ rat ion. A log ica l fo l low up to th is work is to examine the resu l ts of a d iscret ionary zoning system, such as Vancouver's. Such a study could examine a random number of projects approved under the system, against a feas ib le set of ob jec t ives, in order to make a judgment on whether the f i n a l product was better than could be achieved under a more t rad i t i ona l zoning approach. What - 101 -were the d iscret ionary elements (e.g. densi ty, design, use, i n tens i t y , e tc . )? The study could also examine the product re la t i ve to stated object ives contained in p o l i c i e s , gu ide l ines, p lans, and the incorporation of procedural safeguards into the process. This would provide an addit ional and p rac t i ca l l ink to the r e l a t i v e l y new study of d iscret ionary zoning. This study has also touched on other more basic land use control issues which require examination. For example, the thesis discussed the d i f f i c u l t y of a proper balance between f l e x i b i l i t y and cer ta in ty . Can there be a universal answer? Are there cer ta in elements that should be mandatory, and others d iscret ionary? A more fundamental issue a r i ses . What does the r i se of d iscret ionary zoning techniques mean for the future of planning? Is there l i k e l y to be increasing decision making respons ib i l i t y on the planning o f f i c i a l ? What does th is mean to the planning process and to the organizat ion and structure of the planning i n s t i t u t i o n , and to planning education? The above are but a few of many issues requir ing further examination in years to come as innovation is sought in land use control mechanisms and in the ent i re planning process. - 102 -Footnotes CHAPTER V 1. Edwin D. F o l l i c k , "The Element of Discret ion Inherent in Administrat ive Ad jud icat ion" , Thesis, Blackstone School of Law, Chicago, 1967, p. 3. 2. C l i f f o rd L. Weaver and Richard F. Babcock, "C i ty Zoning, (Chicago: Planner's Press, 1979), p. 257. - 103 -BIBLIOGRAPHY Books Barnett, Jonathan. Urban Design As Publ ic Po l i cy : Prac t i ca l Methods For  Improving C i t i e s . New York: McGraw H i l l Pub l ica t ions , 1974. Cook, Robert S. J r . Zoning For Downtown Urban Design: How C i t i e s Control  Development. Toronto: Lexington Books, D. C. Heath and Company, 1980. Evans, J . M . , ed. De Smith's Jud i c ia l Review Of Administrat ive Act ion , by S. A. DeSmith - Fourth Ed i t i on . London: Stevens and Sons Limited, 1980. Fishman, Richard P . , ed. Housing For A l l Under Law: New Direct ions In Housing, Land Use And Planning Law, a Report of the American Bar Associat ion Advisory Commission on Housing and Urban Growth. Massachusetts: Bal l inger Publ ishing Company, 1978. Goldberg, Michael and Peter Horwood. Zoning: Its Costs And Relevance For The  1980s. Canada: The Fraser Ins t i tu te , 1980. Goodman, Wil l iam I., ed. Pr inc ip les And Pract ice Of Urban Planning. Washington D . C : International Ci ty Managers' Assoc ia t ion , 1968. Haveghurst, Clark C , ed. Administrat ive D iscre t ion : Problems Of Decision - Making By Government Agencies. New York: Oceana Pub l ica t ions , Inc. 1974. Jowel l , Jef f rey L. Law And Bureaucracy: Administrat ive Discret ion And Limits  Of Legal Act ion. New York: Dunellen Publ ishing Company, 1975. L i s t o k i n , David. , ed. Land Use Contro ls : Present Problems And Future Reform. New Jersey: Centre fo r Urban Po l icy Research, 1974. Mandelker, Daniel R. The Zoning Dilemma: A Legal Strategy For Urban Change. Washington: Bobbs-Merr i l l Company, Inc. , 1971. Marcus, Norman and Mari lyn W. Groves, eds. The New Zoning: Legal , Administ rat ive, And Economic Concepts And Techniques. New York: Praeger Publ ishers, 1970. Mi lner , J . B. , ed. Community Planning: A Casebook On Law And Administrat ion. Toronto: Univers i ty of Toronto Press, 1963. Rogers, Ian Mac F. Canadian Law Of Planning And Zoning. Toronto: The Carswell Company Limited, 1981. Rose, Jerome, G. Legal Foundations Of Land Use Planning. New Jersey: Centre for Urban Po l icy Research, Rutgers, 1979. - 104 - „ Rathkopf, Arden H. The Law Of Zoning And Planning. Vo l . 3, fourth ed i t i on . New York: Clark Boardman Co. , L td . 1981. So, Frank, Israel Stol lman, et a l , eds. The Pract ice Of Local Government  Planning. Washington D . C : International C i ty Management Associat ion in cooperation with the American Planning Assoc ia t ion , 1979. Weaver, C l i f f o rd L. and Richard F. Babcock. C i ty Zoning: The Once and Future  Front ie r . Chicago: Planner 's Press, American Planning Assoc ia t ion , T979. Journals and Reports Bernstein, Richard Charles. "Vancouver's Resident ia l Design Guideline Process: A Case Study." A thesis submitted for the Degree of Master of Arts in the Faculty of Graduate Studies, School of Community and Regional Planning, U.B.C. , Vancouver, 1980. Brooks, Mary. "Bonus Provisions in Central C i ty Areas." ASPO Planning  Advisory Serv ice. Report No. 257, May 1970. Dh i l l on , Jagdev Singh. "The Zoning Board Of Appeal: A Study of i t s Role in the Implementation of Municipal Planning Po l icy in B r i t i s h Columbia." Thesis submitted for the Degree of Master of Science in Div is ion of Community and Regional Planning. U .B .C. , Vancouver, 1966. F o l l i c k , Edwin Duane. "The Element of Discret ion Inherent in Administrat ive Ad jud icat ion. " A thesis submitted for the Degree Jur is Doctor, Department of Post-Graduate Study, Blackstone School of Law, August, 1967. Gerecke, Kent, Robert J . McCrea, et a l . "Toward a New Canadian Zoning." A Study done at School of Urban and Regional Planning, Univers i ty of Waterloo, October, 1974. Harvard Law Review. "Administrat ive Discret ion in Zoning." Harvard Law Review Assoc ia t ion , Cambridge, Massachusetts, 1968-69. Hason, Nino. "The Emergence and Development of Zoning Controls in North American Mun ic i pa l i t i es : A C r i t i c a l Ana l ys i s . " Paper submitted to Univers i ty of Toronto: August, 1977. Heeter, David. "Toward a More Ef fec t ive Land-Use Guidance System: A Summary and Analysis of Five Major Reports". Information Report No. 250, American Society of Planning O f f i c i a l s (ASPO), Planning Advisory Serv ice, Sept. - Oct. 1969. Meshenberg, Michael J . "The Administrat ion of F lex ib le Zoning Techniques", ASPO, Planning Advisory Serv ice. Report No. 318, 1975. - 105 -. "The Language of Zoning: A glossary of Words and Phrases", ASPO, Planning Advisory Serv ice. Report No. 322, 1975. Porter , Brian John. "The Land Use Contract: Its V a l i d i t y as a Means of Use and Development Cont ro l " . A thesis submitted for the Degree of Master of A r t s , School of Community and Regional Planning, U .B .C. , Vancouver, May, 1973. Rahenkamp Sacks Wells and Associates, Inc. , The American Society of Planning O f f i c i a l s , and David S to lo f f . "Innovative Zoning: A Local O f f i c i a l ' s Guidebook". Report completed Nov. 1977 for U.S.A. Department of Housing and Urban Development. Rassen, Uwe Andreas. "Zoning For Comprehensive Planned Developments: A Case Study." A thesis submitted for the Degree of Master of A r t s , School of Community and Regional Planning, U.B.C. , May, 1969. Reps, John W. "Requiem fo r Zoning". Pomeroy Memorial Lecture, U.S.A. 1964. Smith, R. Mar l in . "Zoning Boards of Appeal" , Zoning: Mirror of C r i s i s . Proceedings of the Inst i tu te on Zoning, Univers i ty of I l l i n i o i s , at the Urbana-Champaign, Bureau of Urban and Regional Planning Research, Department of Urban and Regional Planning, May, 1971. S te in , Les l i e A. "The Municipal Power to Zone in Canada and the United States: A Comparative Study", Canadian Bar Review. No. 49, 1971. Vranicar , John, et a l . "Streamlining Land Use Regulat ion: A Guidebook for Local Governments". Prepared by American Planning Associat ion for Off ice of Po l icy Development and Research, Washington D . C , Nov., 1980. By-Laws and Publ icat ions Province of B r i t i s h Columbia. Vancouver Charter. Sept . , 1976. Vancouver C i ty Planning Commission. Transcript of Seminar on "How Can We Improve Our Zoning Regulations?" Oct. 5, 1978. Vancouver Ci ty Planning Commission. Goals for Vancouver. Feb. , 1980. Vancouver C i ty Planning Department. Annual Review 1981 - 1982. March 1982. Vancouver C i ty Planning Department. Eight Years A f te r . Case Study under Discret ionary Zoning in Vancouver, Oct. 1981. Vancouver C i ty Planning Department, Downtown Study Team. Downtown Vancouver:  Planning Concepts for Future Development and Process of Control of  Development. Sept . , 1974. Vancouver C i ty Planning Commission. Zoning and Development By-Law 3575, amended up to and including By-Law 5451, dated June 16, 1981. - 106 -A P P E N D I X I Extracts from the Vancouver Charter Concerning Planning Powers P A R T IX Buildings Interpretation 304. 306. Off-street Parking For Other Buildings. Off-street Loading and Parking For Commercial Buildings. In this Part, unless the context otherwise requires, "bui lding" in-cludes structures of every kind, excavations in respect of any struc-ture, and everything so attached to a structure as to constitute it real property; "construct ion" includes erection, repair, alteration, enlargement, addition, demolition, removal, and excavation. The Counci l may make by-laws:— (r) For requiring that in the construction of any building suitable provision shall be made off the street to accommodate such number of motor-vehicles as the Council may by by-law pre-scribe, and for defining and classifying such buildings, and for differentiating and discriminating according to such classification in respect of the accommodation to be provided as aforesaid; (s) For requiring that in the construction of any building used for commercial or industrial purposes, or where by the nature of its proposed use quantities of articles, materials, or merchandise will be delivered to or taken from such building, suitable provision shall be made off the street for accommodating such number of vehicles as the Council may prescribe and for off-street loading and unloading of articles, materials, or merchandise delivered to or taken from such building, and for defining and classifying such buildings, and for differentiating and discriminating according to such classification in respect of such provision, and, in the discre-tion of the Counci l , for designating the areas where such provision 'shall be required, as aforesaid and for providingthat in the discretion of the Counci l the by-law provision enacted pursuant to this paragraph may be waived and, in lieu thereof, Counci l may by by-law a c c e p t p a y m e n t of s u c h s u m of m o n e y as may b e d e e m e d - - a p p r o p r i a t e b y C o u n c i l . P A R T XXVI I Planning and Development Interpretation 559. In this Part, or in any by-law made thereunder, unless the context otherwise requires: "Bui ld ing" and "Construct ion" mean "Bui ld ing" and "Construction" as defined in section 304. , A P P E N D I X I J U N E 1 9 8 1 - 107 -"Certificate of use and occupancy" means a certificate issued by the Director of Planning or such other persons as are authorized by Coun-ci l , designating the authorized use or occupancy of any land or build-ing; "Development" means a change in the use o f any land or building, including the carrying-out of any construction, engineering or other operations in, on , over, or under land or land covered by water. "Development Plan" means a plan or plans for the future physical development of the city or any part thereof, whether expressed on drawings, reports or otherwise, and whether complete or partial. "Non-conforming" as applied to a development means that such deve-lopment was lawful when it took place but, by reason of a zoning by-law subsequently passed, does not conform to the uses permitted or regulations prescribed by such by-law. "Non-conformity" shall have a corresponding meaning. "Official Development Plan" means any development plan, whether complete or partial, which has been adopted under this Part. "Owner" shall include the agent or representative of a person owning or in possession of real property or in receipt of the rents or profits therefrom whether on his own account or as agent or trustee for any other person. "Structural Alteration" includes any work or construction which in-volves any change, modification, replacement or repair o f any support-ing member of a building including the bearing walls, columns, beams, or girders thereof. "Zoning By-law" shall include a Zoning and Development By-law. Appointment of Director of Planning 560. The Council may appoint a Director of Planning who shall have such duties and powers as the Council may from time to time prescribe. Power of entry to inspect. 560A. The Director of Planning or anyone authorized by him shall have power to enter on to any land or into any building at any reasonable time for the purpose of inspecting such land or building in order to ascertain if the provisions of a zoning by-law are being or have been carried out. Development Plans 561. The Council may have development plans prepared or revised from time to time. Such plans may: (a) Relate to the whole city, or to any particular area of the city, or to a specific project or projects within the city; (b) Be altered, added to, or extended; A P P E N D I X I J U N E 1 9 8 1 2 - 108 -(c) Designate land for streets, lanes and other public thoroughfares and for the widening of streets, lanes, and other public thorough-fares; designate sites for parks, schools, and public buildings; and designate areas for special projects, including those which require development or redevelopment as a whole. Council Powers Respecting Official Development Plan 562. The Counci l may, by by-law: (a) Adopt as the official development plan, or as a part thereof, any development plan prepared under section 561 or (b) Revise or amend the official development plan or any part thereof. Undertakings, Official Development Plan 563. (1) The adoption by Council o f a development plan shall not commit the Council to undertake any of the developments shown on the plan. (2) The Counci l shall not authorize, permit or undertake any deve-lopment contrary to or at variance with the official development plan. (3) It shall be unlawful for any person to commence or undertake any development contrary to or at variance with the official develop-ment plan. Power to Acquire Lands in Addition to Those Essential to Project 564. (1) Where a project is shown upon an official development plan, the Council may acquire any real property it considers essential to the carrying-out of the project, and in addition acquire other adjacent or neighbouring real property. Such additional real property may include: (a) The remnants of parcels, portions of which are essential to carrying out the project; (b) A n y lands which may be injuriously affected by the project; (c) Any lands which, if allowed to be built upon without restric-t ion, might become the site of buildings or structures which would prejudicially affect the full enjoyment of any building forming part of the project or the architectural effect thereof; (d) Any lands which the Council is of the opinion could be con-veniently and profitably resubdivided or rearranged and deve-loped as part of the project. Power to Purchase or Expropriate (2) The Council shall have the same right to purchase or expro-priate the additional lands as it has to purchase or expropriate the 3 A P P E N D I X I J U N E 1 9 8 1 - 109 -lands immediately necessary for the carrying-out of the project under this Act . Expenses (3) A n y expenses incurred in acquiring additional lands shall be met as part of the project, and the proceeds of any sale or other disposi-tion of the lands so acquired shall be applied, in so far as they are required, in reduction of the cost of carrying out the project. Zoning 565. The Council may make by-laws: by-law (a) dividing the city or any portion thereof into districts or zones of such number, shape or size as Counci l may deem fit; (b) regulating, within any designated district or zone, the use or occu-pancy of land and land covered by water for or except for such purposes as may be set out in the by-law; (c) regulating, within any designated district or zone, the construc-tion, use, or occupancy of buildings for or except for such pur-poses as may be set out in the by-law; (d) regulating the height, bulk, location, size, floor area, spacing, and external design of buildings to be erected within the city or within designated districts or zones; (e) prescribing, in any district or zone, building lines and the area of yards, courts, and open spaces to be maintained; and regulating in any district or zone the maximum density of population or the maximum floor-space ratio permissible; (f) designating districts or zones in which there shall be no uniform regulations and in which any person wishing to carry out develop-ment must submit such plans and specifications as may be re-quired by the Director of Planning and obtain the approval of Council to the form of development; (g) delegating to the Director of Planning or such other persons as are authorized by Council the authority to certify the authorized use or occupancy of any land or building; (h) providing for certificates of use or occupancy and providing that the use or occupancy of any land or building other than in accor-dance with the certificate of use or occupancy applicable to such land or building shall constitute a violation of the by-law and shall render the owner of the land or building liable to the penalties provided in the by-law; (i) authorizing the collection of a fee for a certificate of use or occu-pancy, which fee may vary according to the type of use or occu-pancy or the value of the land or building used or occupied; (j) describing the zones or districts by the use of maps or plans, and the information shown on such maps or plans shall form part of the by-law to the same extent as if included therein. A P P E N D I X I J U N E 1 9 8 1 4 - 110 -565A. Council may make by-laws: (a) prohibiting any person from undertaking any development with-out having first obtained a permit therefor. Such permit shall here-inafter be referred to as a 'development permit'; (b) providing that a development permit may be limited in time and subject to conditions, and making it an offence for any person to fail to comply with such conditions; (c) providing that no building permit shall be issued for the construc-tion of any building until a development permit has first been obtained; (d) delegating to any official of the city or to any board composed of such officials such powers of discretion relating to zoning matters which to Council seem appropriate; (e) providing for the relaxation in any case where literal enforce-ment would result in unnecessary hardship of any provision of; (i) a zoning by-law (provided, however, that such power to relax shall not be used to permit any construction to provide for . multiple occupancy in a one-family dwelling district nor to permit in such a district the use or occupancy of a dwelling as a multiple occupancy dwelling unless it was so used or occupied as at April 1st, 1977), (ii) a by-law prescribing requirements for buildings. Such relaxa-* tion may be limited in time and may be subject to conditions. The by-law may authorize such relaxation by the Director of Planning or by any board constituted pursuant to clause (d); (f) providing for the payment of a fee upon application for a develop-ment permit, which fee may vary accordingly to the value or type of development for which the permit is sought; (g) providing that the use or occupancy of any land or building in contravention of the provisions of a zoning by-law or the condi-tions of a development permit shall constitute a violation of the zoning by-law and shall render the owner of the land or building liable to the penalties provided in the by-law; (h) prohibiting the use or occupancy of any land or buildings on or in which a development has taken place since the eighteenth day of June, 1956, without a development permit; (i) prohibiting the erection, use or occupancy of any building or the use or occupancy of any land unless due provision is made for public safety and amenity, sanitary facilities, water supply, and drainage. 5 A P P E N D I X T J U N E 1 9 8 1 - I l l -Amendment or Repeal of Zoning By-law 566. (1) The Counci l shall not make, amend or repeal a zoning by-law until it has held a public hearing thereon, and an application for re-zoning shall be treated as an application to amend a zoning by-law. (2) Council may by by-law require every person applying for an amendment to the zoning by-law to accompany the application with a fee to be prescribed by by-law. (3) Notice of the hearing, stating the time and place of the hearing and the place where and the times within which a copy of the pro-posed by-law may be inspected, shall be published in not less than two consecutive issues of a daily newspaper published (or circu-lating) in the ci ty, with the last of such publications appearing not less than seven days nor more than fourteen days before the date of the hearing. (4) A t the hearing all persons who deem themselves affected by the proposed by-law shall be afforded an opportunity to be heard in matters contained in the proposed by-law, and the hearing may be adjourned from time to time. (5) After the conclusion of the public hearing the Council may pass the proposed by-law in its original form or as altered to give effect to such representations made at the hearing as the Council deems fit. (6) Notwithstanding the provisions of this section, where any street or part thereof has been stopped up under the provisions of any Ac t and the ownership thereof is transferred to the owner of an adjoining parcel of land, then the land formerly comprising the street or part thereof so stopped up shall be deemed to be zoned for the same purpose for which the parcel of which it has become a part is already zoned unless the Council by resolution shall otherwise direct. (7) Notwithstanding the provisions of this section, where any land zoned pursuant to this Part has been transferred to the city for street purposes, whether such street is established or opened up by the city or not, such land shall be deemed not to be zoned unless the Council by resolution shall otherwise direct. By-laws Governing Restrictions as to Height of Buildings, Size of Courts and Yards 567. Where the provisions of the zoning by-law impose requirements for a lower height of buildings, or a less percentage of a lot that may be occupied, or require wider or larger courts or deeper yards than are imposed or required by the provisions of the building by-law, the pro-vision of the zoning by-law shall govern; but where the provisions of the building-by-law impose requirements for a lower height of build-ings, or a less percentage of lot that may be occupied, or require wider or larger courts or deeper yards than are required by the zoning by-law, the provisions of the building by-law shall govern. A P P E N D I X I J U N E 1 9 8 1 6 - 112 -Nonconforming Buildings 568. (1) Non-conformity shall be divided into two types: (a) Non-conformity with respect to the use which is made of the premises; (b) Non-conformity arising out of change in the regulations gov-erning matters other than the use which may be made of the premises. (2) A building lawfully under construction at the time of coming into force of a zoning by-law shall for the purpose of that by-law be deemed to be a building existing at that time. (3) A lawful use of premises existing at the time of coming into force of a zoning by-law, although such use is not in accordance with the provisions of the by-law, may be continued; but, if such non-conforming use is discontinued for a period of ninety days, any future use of those premises shall be in conformity with the pro-visions of the by-law. The Board of Variance shall have power to allow relaxation of this provision. (4) No additions or structural alterations except those required by Statute or by-law shall be made to a non-conforming building without: (a) the approval o f the Board of Variance if the non-conformity is in respect of use; (b) the approval of the'Director of Planning if the non-conformity Isjn respect of regulations only. Fire Damage to Nonconforming Building (5) Where a non-conforming building is damaged or destroyed by fire to the extent of sixty per centum (60%) or more of its value above its foundations as determined by the City Building Inspector, whose decision shall be subject to review by the Board of Vari-ance, it shall not be repaired or reconstructed without the approval of: (a) the Board of Variance if the non-conformity is in respect of use; (b) the Director of Planning if the non-conformity is in respect of regulations only. Change in Nonconforming Use (6) A change in the non-conforming use of land or buildings may be permitted in accordance with the provisions of the Zoning and Development By-law. 7 A P P E N D I X I J U N E 1 9 8 1 - 113 -) \ Property Injuriously Affected 569 (1) Where a zoning by-law is or has been passed, amended, or repealed under this Part, or where Council or any inspector or official of the city or any board constituted under this A c t exercises any of the powers contained in this Part, any property thereby affected .shall be deemed as against the city not to have been taken or in-jur iously affected by reason of the exercise of any such powers or Dy reason of such zoning and no compensation shall be payable by the city or any inspector or official thereof. (2) Notwithstanding that the Board of Variance has relaxed the pro-visions of a by-law enacted under this Part, in determining the compensation payable by the city for the taking of lands for the widening of a street in respect of which a building line has been fixed, the city is not liable to pay compensation for or in respect of any building erected in contraventation of the by-law fixing the building line. (3) Upon the acquisition o f such lands by the city, the owner shall, upon demand by the city, remove such building or part thereof, as the case may be, and, in default thereof, the city may remove the same and the costs of such removal and any other costs indi-dental thereto shall be a debt due to the city payable by the owner of the property recoverable by action and shall be a charge on the balance of the land unless sooner paid to the city. Withholding of Permit Pending Passage of Zoning By-law 570. (1) Prior to the adoption of a zoning by-'aw, or of an official develop-ment plan, or of an amendment to a zoning by-law, or of an alter-ation, addition, or extension to an official development plan, the Council may cause to be withheld the issuance of any develop-ment or building permit for a period of thirty days from the date of application for such permit. (2) Where any permit is so withheld, the application therefor shall be considered by the Council within the said period of thirty days, and, if in the opinion of the Counci l , the development proposed in the application would be at variance or in conflict with a develop-ment plan in the course of preparation, or with an alteration, addition, or extension to an official development plan in course of preparation, or with a zoning by-law in course of preparation, or with an amendment to a zoning by-law in course of preparation, the Council may withhold the permit for a further sixty days from the expiration of the thirty-day period hereinbefore referred to, or the Council may impose such conditions on the granting of the development permit as may appear to the Counci l to be in the public interest. APPENDIX I s JUNE 198! - 1 1 4 - . (3) In the event that the Council does not within the said period of sixty days adopt any such plan, alteration, addition, extension, or by-law, the owners of the land in respect of which a development permit was withheld or conditions were imposed pursuant to this section shall be entitled to compensation for damages arising from the withholding of such development permit, or the imposition of such conditions. Such compensation shall be determined by arbitration pursuant to the Arbitration Act. Enforcement of By-law 571. (1) Any by-law passed hereunder may be enforced and the contra-vention of any regulation therein restrained by the Supreme Court upon action brought by the city, whether or not any penalty has been imposed for such contravention, and it shall be unnecessary for the Crown or the Attorney-General or any other officer of the Crown to be a party to such action. (2) Any Zoning By-law passed hereunder may be enforced and the contravention of any regulation therein restrained by the Supreme Court upon action brought by the city or by any registered owner of real property or any incorporated society representing regis-tered owners of real property in the City of Vancouver and af-fected by such by-law or regulation, whether or not any penalty has been imposed for such contravention, and it shall be unneces-sary for the Crown or the Attorney-General or any other officer of the Crown to be a party to such action. Board of Variance Establishment and Membership of Board of Variance 572. In this and the following section " B o a r d " means Board of Variance. (1) The Council shall establish by by-law a Board of five members, two to be appointed by the Counci l , two to be appointed by the Lieutenant-Governor in Counci l , and a Chairman who shall be appointed by a majority of the other appointees. The Board shall appoint a secretary and such other officials as may be required by the Board. (2) Each member of the Board shall hold office for a term of three years or until his successor shall be appointed, but a person may be reappointed for a further term or terms. (3) The Council may provide, by by-law or resolution, for the remun-eration of members of the Board, in such amounts as the Council thinks fit, and may also provide for the payment of a fee for the hearing of an appeal before the Board. (4) No person who is a member of the Advisory Planning Commission or who holds any municipal office whether appointed or elected, is eligible to be appointed or to sit as a member of the board. 9 A P P E N D I X I J U N E 1 9 8 1 - 115 -) (5) Three members of the Board shall constitute a quorum. (6) The Chairman may from time to time appoint a member of the Board as Acting-Chairman to preside in the absence of the Chair-man. (7) In the event of the death, resignation, or removal from office of any member of the Board, his successor shall be appointed in the same manner as such member was appointed, and until the ap-pointment of his successor the remaining members shall constitute the Board. (8) The Chairman may be removed at any time by the Lieutenant- " Governor in Counci) on the recommendation of the Counci l . (9) The by-law establishing the Board shall set out the procedure to be followed by the Board, including the manner in which appeals are to be lodged and the method of giving notices required under section 573. Appeals to Board of Variance 573. (1) The Board shall hear and determine appeals: (a) By any person aggrieved by a decision on a question of zoning by any official charged with the enforcement of a zoning by-law; (b) By any person who alleges that the enforcement of a zoning by-law with regard to siting, size, shape, or design of a building would cause him undue or unnecessary hardship arising out of peculiarities in the site or special circumstances connected with the development. In any such case the Board may, to the extent necessary to give effect to its determination, exempt the applicant from the applicable provisions of the zoning by-law; (c) By any person who alleges that due to special circumstances or conditions the provisions of subsection (3) of section 568 will result in undue or unnecessary hardship to him; (d) With respect to matters arising under subsections (4) and (5) of section 568. (e) by any person aggrieved by a decision by any board or tribunal to whom Council has delegated power to relax the provisions of a zoning by-law. (2) The Board shall not allow any appeal solely on the ground that if allowed the land or buildings in question can be put to a more pro-fitable use nor unless the following conditions exist: (a) The undue or unnecessary hardship arises from circumstances applying to the applicant's property only; and A P P E N D I X I J U N E 1 9 8 1 10 - 116 -(b) The strict application of the provisions of the by-law would impose an unreasonable restraint or unnecessary hardship on the use of the property inconsistent with the general purpose and intent of the zoning by-law; and (c) The allowance of the appeal will not disrupt the official deve-lopment plan. (3) The Board shall give notice to such owners of real property as the Board may deem to be affected by the appeal, and public notice of the hearing shall be given, if the matter is deemed by the Board to be of sufficient importance. For the purpose ofdetermining the names of the owners deemed to be affected, reference shall be made to the records kept by the Assessor. (4) The Board shall conduct its hearings of appeals under this section in public. (5) The decision of a majority of the members of the Board present at a hearing shall constitute the decision of the Board, which shall be rendered in open meeting and shall be recorded in writing by the secretary. In the event of the members of the Board being equally divided, the appeal shall be disallowed. (6) No appeal shall lie from a decision of the Board. (7) In allowing an appeal, the Board may impose such restrictions, limitations or conditions as may seem to it to be desirable and proper in the circumstances. (8) Council may by by-law provide that failure to comply with any restrictions, limitations, or conditions Tmposecf"b~y the Board pur-suant to subsection (7) shall constitute an offence against the by-law. 11 A P P E N D I X 1 JUNE 1981 - 1 1 7 -A P P E N D I X I I SECTION 3 ADMINISTRATION 3.1 Duties and Powers 3.1.1 Save and except as provided in subsections 3.1.3 and 3.1.4, it shall be the duty of the Director of Planning to carry out and enforce the provisions of this By-law. 3.1.2 It shall be the duty of the Director of Planning and the Development Permit Board to exercise on behalf of C ouncil such powers as are hereby expressly delegated »-o them. 3.1.3 It shall be the duty of the Director of Permits and Licenses to insure that all projects in respect of which a development permit has been issued are carried out in conformity with the terms of such development permit, for which purpose he may inspect or cause to be inspected any of such projects. 3.1.4 It shall be the duty of the Director of Permits and Licenses to keep a register of all applications for development permits and to enter therein the terms upon which a permit is issued, or the reasons for refusing the same, as the case may be, with respect to each application. Such register shall be considered a public record and shall be open for inspection by any member of the public during normal working hours. 3.1.5 The Director of Planning or his accredited representatives shall have the right of entry and may enter onto any land or into any building at all reasonable hours in order to inspect the same and to ascertain whether the provisions of this By-law are being or have been carried out. Any person interfering with or obstructing the entry of the Director of Planning or his accredited represen-tatives onto any such land or into any such building, to which said entry is made or attempted pursuant to the provisions of this By-law, shall be deemed to be guilty of an infraction of the By-law. 1 SECTION 3 J U N E 1981 - 118 -3.1.6 in the granting or refusal of development permits, and in the granting of relaxations or the imposition of conditions, due regard shall be given to the spirit and intent of the By-law as the same applies to the particular development under consideration 3.2 Relaxation 3.2.1 The Director of Planning may reiax the provisions of this By-law where, due to conditions peculiar either to the site or to the proposed development, literal enforcement would result in unnecessary hardship in any of the following cases: (a) Alterations or additions to an existing building which lacks minimum yards required by the appropriate district schedule. Any relaxation in this case shall be with respect to yard requirements only and in no case shall such yard require-ments be reduced to less than 60 percent of the amount specified in the district schedule; (b) Erection of more than one principal building on one site or sturctural alterations or additions to two or more principal buildings existing on the same site and located in a C or M District; (c) Erection of more than one principal building on one site or structural alterations or additions to two or more principal buildings existing on the same site where such principal buildings consist of town houses or apartment buildings located within any R District, subject to the arrangement of such principal buildings being satisfactory to the Director of Planning; (d) Provision of less than the required number of parking or loading spaces. 3.2.2 The Director of Planning may relax the provisions of this By-law relating to any of the following: (a) Required setbacks to off-street parking areas where, in the opinion of the Director of Planning, the landscaping provided or to be provided is adequate to warrant such relaxation, except that in a C-l or R District, no relaxation shall be granted which has the effect of reducing the front yard to less than the required depth of an adjoining front yard; SECTION 3 J L T V E 1 9 8 1 2 - 119 -(b) R e q u i r e d s c r e e n i n g o n the b o u n d a r y o f a p a r k i n g area s e r v i n g a s c h o o l , p a r k or s i m i l a r u s e o n a site i n e x c e s s o f two acres , i n c a s e s w h e r e the d i s t a n c e b e t w e e n s u c h b o u n d a r y a n d R D is t r ic ts o u t s i d e t h e site o f the p r i n c i p a l u s e s e r v e d by the p a r k i n g area is i n e x c e s s o f 250 feet; (c) T h e m a x i m u m p r o j e c t i o n o f exter ior b a l c o n i e s w i th ra i l ings i n t o r e q u i r e d y a r d s , h o r i z o n t a l d a y l i g h t c o n t r o l a n g l e s a n d l i m i t a t i o n s o n b u i l d i n g l e n g t h . 3.2.3 T h e D i r e c t o r o f P l a n n i n g , b e f o r e g r a n t i n g a n y r e l a x a t i o n p u r s u a n t to s u b s e c t i o n 3.2, s h a l l be s a t i s f i e d that a n y p r o p e r t y o w n e r l i ke ly to be a d v e r s e l y a f f e c t e d is n o t i f i e d . S u c h n o t i f i c a t i o n s h a l l b e i n the f o r m a p p r o p r i a t e to the c i r c u m s t a n c e s . If a n y p r o p e r t y o w n e r s o n o t i f i e d s h a l l ob jec t , t h e n s u c h r e l a x a t i o n s h a l l n o t be g r a n t e d , b u t the a p p l i c a n t f o r s u c h r e l a x a t i o n m a y t h e n e x e r c i s e h i s r ight o f a p p e a l to the B o a r d o f V a r i a n c e , at w h i c h t ime the r e p r e s e n t a t i o n s o f the D i r e c t o r o f P l a n n i n g a n d o f a n y s u c h p roper ty o w n e r s h a l l b e h e a r d . 3.2.4 T h e D e v e l o p m e n t Permi t B o a r d , i n the e x e r c i s e o f its j u r i s d i c t i o n , m a y re lax the p r o v i s i o n s o f th is B y - l a w . In g ran t ing a n y r e l a x a t i o n , the B o a r d s h a l l h a v e regard to the in tent o f th is B y - l a w , the r e g u l a t i o n s a n d p o l i c i e s o f a n y O f f i c i a l D e v e l o p m e n t P l a n , a n d s u c h o t h e r p o l i c i e s as C o u n c i l m a y f r o m t ime to t ime d e t e r m i n e , i n c l u d i n g d e s i g n g u i d e l i n e s . 3.2.5 In d e a l i n g w i t h a p p l i c a t i o n s f o r d e v e l o p m e n t p e r m i t s f o r b u i l d i n g s , s t r u c t u r e s , l a n d s , or parts t h e r e o f d e s i g n a t e d by C o u n c i l as M u n i c i p a l H e r i t a g e S i tes , t h e D i r e c t o r o f P l a n n i n g or the D e v e l o p m e n t P e r m i t B o a r d , as the c a s e m a y b e , m a y re lax: (a) any regulat ion of this By-law where literal enforcement wou ld result in alterations that contravene sect ion 12 of the Brit ish C o l u m b i a Heritage Conservat ion Act , or the similar sect ion of any Act that may supersede the Heritage Conservat ion Act; (b) any other p rov is ion o f this By-law. In granting any relaxation pursuant to this subsect ion , the Director o f P lanning, or the Deve lopment Permit Board, shal l have regard to the intent of this By-law, the regulat ions and pol ic ies of any Off ic ia l Development Plan, the British Co lumbia Heritage Conservation Act, s u c h other pol ic ies as C o u n c i l may f r o m t ime to time determine, and the recommendat ions o f any heritage advisory group approved by C o u n c i l . 3 SECTION 3 J U N E 1961 - 120 -3.2.6 The Director of Planning or the Development Permit Board, as the case may be, may relax any of the regulations and provisions of this By-law where literal enforcement would not allow the restoration and renovation of sites with architectural, historical, or cultural merit. Before granting any relaxation pursuant to this subsection, the Director of Planning or the Development Permit Board shall ensure that: (a) the relaxations are requested by a person having legal interest in the site in order to conserve a building (or group of buildings) which is considered to have architectural, historical, or cultural value; and (b) a formal resolution is received from the Heritage Advisory Committee or any other body established by Council for this purpose defining the aspects of the site that give it heritage merit, and supporting the proposed conservation work; and (c) notification of adjoining property owners and residents is under-taken, in a manner that is determined appropriate by the Director of Planning, consideration is given to the responses received, and if there is significant objection, the matter be referred to Council; and (d) consideration is given to the provisions of Zoning and Development By-law No. 3575 and the requirements of the District Schedule which would normally apply; and (e) consideration is given to the policies and guidelines for the area in question as may be adopted by Council. Unless the Director of Planning or the Development Permit Board otherwise directs, any relaxation granted under this subsection shall be valid only for as long as the building continues to exhibit those qualities as defined by the Heritage Advisory Committee in paragraph (b) above. Development Permits In dealing with applications for development permits the Director of Planning or the Development Permit Board may in ever/ case and in accordance with the provisions of this By-law grant such permits either unconditionally or subject to conditions, including a limitation in time, or may refuse such permits. -Notwithstanding the provisions_pf.this By Jaw. a development permit may be refused if the development in respect of which application is made: 3.3 3.3.1 3.3.2 SECTION 3 JUNE 19S1 4 - 121 -(a) Does not conform to an amendment to the Zoning and Development By-law for which a formal application has been made prior to the application for the development permit; (b) Refers to a site or a portion thereof required for any civic purpose, in which case the Director of Planning shall refer the application to the City Council for authority either to negotiate with the applicant or to issue the development permit; (c) Would prejudice the future subdivision of the property; (d) Refers to a site where adequate drainage, sanitary facilities or water supply are not available; (e) Would in the opinion of the City Engineer adversely affect the public safety; or (f) Would in the opinion of the Director of Planning or the Development Permit Board adversely affect public amenity. If matters of design are involved, the application may first be referred to the Urban Design Panel for consideration and advice. 3.3.3 Notwithstanding the provisions of this By-law or any other By-law, and unless he receives a notice of objection from any member of the Development Permit Board, the Director of Planning may in his discretion either approve, approve subject to conditions, or refuse applications for development permits for which the con-sent of the Development Permit Board would otherwise be re-quired. 3.3.4 The Director of Planning shall not exercise his discretion pursuant to subsection 3.3.3 above where, in his opinion: (a) The development would have a significant effect on the existing immediate environment; (b) The development would create traffic implications that could affect the general environment; (c) The height or density of any proposed building would not be in keeping with the general building heights or density in the immediate environment; (d| There may be possible significant buildings of heritage merit on the site or in the surrounding area that may be adversely affected by the development; 5 SECTION 3 J U N E 1981 - 122 -(e) The design is not of an acceptable standard and may adversely affect public amenity, in which case the Director of Planning may first request advice from the Urban Design Panel; (f) The development is such that special public amenities could be considered for density bonus or other special advantages; or (g) The proposed development could affect any public policy objectives, established or potential, including future transit locations and open space needs. The Development Permit Board or the Director of Planning may refer any application for a development permit to the Urban Design Panel for advice. (See By-law No. 4722. Appendix F) SECTION 3 J U N E 1 9 6 1 6 1 2 3 A P P E N D I X I I I RS-1 DISTRICT SCHEDULE 1 Intent T h e i n t e n t o f th is S c h e d u l e is to m a i n t a i n the s i n g l e - f a m i l y r e s i d e n t i a l c h a r a c t e r o f the D is t r i c t . 2 Outright Approval Uses 2.1 S u b j e c t t o a l l o t h e r p r o v i s i o n s o f t h i s B y - l a w a n d to c o m p l i a n c e w i t h the r e g u l a t i o n s o f th is S c h e d u l e , t h e u s e s l i s ted i n S e c t i o n 2.2 s h a l l b e p e r m i t t e d i n th is D i s t r i c t a n d s h a l l b e i s s u e d a permi t . 2.2 U S E S 2.2.A • A c c e s s o r y B u i l d i n g s a n d a c c e s s o r y u s e s c u s t o m a r i l y a n -c i l l a r y to a n y o f t h e u s e s l i s ted i n the s e c t i o n , p r o v i d e d that : (a) n o a c c e s s o r y b u i l d i n g e x c e e d s 12 feet i n h e i g h t ; (b) a l l a c c e s s o r y b u i l d i n g s are l o c a t e d i n the rear y a r d a n d i n n o c a s e are less t h a n 5 fee t f r o m a f l a n k i n g street, s u b j e c t a lso to t h e p r o v i s i o n s o f S e c t i o n 11.1 o f th is B y - l a w ; (c) the tota l area o f a l l a c c e s s o r y b u i l d i n g s is n o t greater t h a n 35 p e r c e n t o f the m i n i m u m rear y a r d p r e s c r i b e d i n th is S c h e d u l e , o r 520 s q u a r e feet , w h i c h e v e r is the greater; (d) n o t m o r e t h a n 80 p e r c e n t o f the w i d t h o f the rear y a r d o f a n y lot is o c c u p i e d by a c c e s s o r y b u i l d i n g s . 2.2.D • O n e - f a m i l y D w e l l i n g . 3 Conditional Approval Uses 3.1 S u b j e c t to a l l o t h e r p r o v i s i o n s of t h i s B y - l a w , i n c l u d i n g S e c t i o n 3 .3 .3 . a n d the p r o v i s i o n s a n d r e g u l a t i o n s o f t h i s S c h e d u l e , the D e v e l o p m e n t P e r m i t B o a r d m a y a p p r o v e a n y of the u s e s l is ted i n S e c t i o n 3.2 i n c l u d i n g s u c h c o n d i t i o n s o r a d d i t i o n a l r e g u l a t i o n s a s it m a y d e c i d e , p r o v i d e d tha t before m a k i n g a d e c i s i o n it: (a) c o n s i d e r s t h e i n t e n t o f th is S c h e d u l e a n d t h e r e c o m m e n d a -t i o n s o f a n y a d v i s o r y g r o u p s , p l a n or g u i d e l i n e s a p p r o v e d by C o u n c i l fo r t h e area; a n d 1 RS-1 JUNE 1981 - 124 -(b) notifies such adjacent property owners and residents it deems necessary. 3.2 USES 3.2 A • Accessory Buildings and accessory uses customarily ancillary to any of the uses listed in this section, subject to the same provisions of subsection 2.2.A. • Accessory Buildings and accessory uses not in compliance with the provisions of subsection 2.2.A. • Aircraft Landing Place. 3.2.B • Boarding House or Rooming House resulting from the conver-sion of a building where the conversion took place prior to June 18, 1956 and the use has been continual since that time, provided that any development permit granted shall be limited in time. 3.2.C • Child Day Care Facility. • Church, subject to the provisions of Section 11.7 of this By-law. • Community Centre or Neighbourhood House. 3.2.D • Deposition or extraction of material so as to alter the configuration of the land. • Dwelling Unit or Housekeeping Unit which existed prior to and has been used continuously as such since June 18, 1956, provided that any development permit granted shall be limited in time. • Dwelling Unit in conjunction with a neighbourhood grocery store which was in existence prior to July 29, 1980. 3.2.G • Golf Course. 3.2.H • Hospital, but not including a conversion from an existing building, a mental hospital or an animal hospital, subject to the provisions of Section 11.9 of this By-law. 3.2.1 • Institution of a religious, philanthropic or charitable character. 3.2.L • Local Area Office 3.2.M • Marina, but not including boat building and major repairs and overhaul of boats. RS-1 J U N E 1981 2 - 125 -3.2.N • Neighbourhood Grocery Store operating immediately prior to J u l y 29. 1980. subject to the provisions of Section 11.16 of this By-law. 3.2.P • Park or Playground. • Parking Area ancillary to a principal use on an adjacent site. • Public Authority Building or use essential in this District. • Public Utility. 3.2.S • School (public or private), subject to the provisions of Section 11.8 of this By-law. • Social Service Centre operated by a non-profit society. • Special Needs Residential Facility, subject to the provisions of Section 11.9. • Stadium or any similar place of assembly. 3.2.T • Tourist Court, subject to the provisions of Section 11.12 of this By-law. • Truck Garden, Nursery or Greenhouse for propagating and cultivating. 4 Regulations All uses approved under Sections 2 and 3 of this District Schedule shall be subject to the following regulations: 4.1 SITE AREA 4.1.1 The minimum site area for a one-family dwelling shall be 4,300 square feet. 4.1.2 Where the site is less than 32 feet in width or less than 3,600 square feet in area, the design of any new dwelling shall first re-quire the approval of the Director of Planning or the Develop-ment Permit Board, as the case may be. 4.2 FRONTAGE — Not Applicable 4.3 HEIGHT 4.3.1 The maximum height of a building shall be the lesser of 35 feet or 2xh storeys. 3 RS-1 J U N E 19S1 - 126 -4.4 FRONT YARD 4.4.1 A front yard with a minimum depth of 24 feet shall be provided. 4.4.2 In the case of a site having an average depth of less than 120 feet, the required front yard may be reduced in accordance with Section 11.2 of this By-law. 4.5 SIDE YARDS 4.5.1 A side yard with a minimum width of not less than 10 percent of the width of the site shall be provided on each side of the building, except that it need not be more than 5 feet in width-4.5.2 In the case of a corner site, the exterior side yard shall be regulated by the provisions of Section 11.1 of this By-law. 4.6 REAR YARD 4.6.1 A rear yard with a minimum depth of 35 feet shall be provided, except that where the rear of the site abuts a lane, this required minimum depth shall be decreased by the lane width between the rear property line and the ultimate centre line of the lane. 4.6.2 In the case of a site having an average depth of less than 120 feet, the required rear yard may be reduced in accordance with Section 11.2 of this By-law. 4.6.3 -Where a building line has been established pursuant to the provisions of Section 14.2, such building line shall be deemed to be the southerly boundary of any required rear yard on a riparian site, notwithstanding any dimension contained herein. 4.7 FLOOR SPACE RATIO 4.7.1 The floor space ratio shall not exceed 0.60. 4.7.2 The following shall be included in the computation of floor space ratio: (a) all floors having a minimum ceiling height of 4 feet, including earthen floor, both above and below ground level, to be measured to the extreme outer limits of the building; (b) stairways, fire escapes, elevator shafts and other features which the Director of Planning considers similar, to be measured by their gross cross-sectional areas and included in the measurements for each floor at which they are located. J U N E 1981 4 - 127 -4.7.3 The following shall be excluded in the computation of floor space ratio: (a) balconies, canopies, sundecks and other features which the Director of Planning considers similar, permitted to a maxi-mum total area of 8 percent of the floor area; (b) patios and roof gardens, provided that the Director of Planning first approves the design of sunroofs and walls; (c) parking areas, the floors of which are at or below the highest point of the finished grade around the building; (d) child day care facilities to a maximum floor area of 10 percent of the permitted floor area, provided the Director of Planning, on the advice of the Director of Social Planning, is satisfied that there is a need for a day care facility in the immediate neighbourhood. (e) areas of undeveloped floors located above the highest storey or half-storey, or adjacent to a half-storey with a ceiling height of less than 4 feet, and to which there is no permanent means of access other than a hatch. 4.7.4 For the purpose of calculating floor space ratio in this District Schedule, the depth of a riparian site measured from the abutting street shall be the lesser of: (a) 120 feet or (b) the depth thereof as determined from any plan or other document of record in the Land Title Office as of the 15th day of April 1978, and relating to the boundaries thereof. 4.8 SITE COVERAGE 4.8.1 The maximum site coverage for buildings shall be 45 percent of the site area. 4.8.2 For the purpose of this section, site coverage for buildings shall be based on the projected area of the outside of the outermost walls of all buildings and includes carports, but excludes steps, eaves, cantilevered balconies and sundecks. 4.8.3 Except where the principal use of the site is a parking area, the maximum site coverage for any portion of the site used as parking area shall be 30 percent. 5 RS-1 J U N E 1981 - 128 -4.9 OFF-STREET PARKING AND LOADING SPACES 4.9.1 Off-street parking and loading spaces shall be provided and maintained in accordance with the provisions of Section 12 of this By-law. 5 Relaxation of Regulations 5.1 The Director of Planning may relax the minimum site area requirements of Section 4.1 with respect to any of the following developments on an existing lot of lesser site area on record in the Land Title Office for Vancouver: (a) one-family dwelling. RS-1 J U N E 1981 6 - 129 -A P P E N D I X I V 3. DOWNTOWN DISTRICT OFFICIAL DEVELOPMENT PLAN BY-LAW (a) By-law No. 4912 — Being an Official Development Plan By-law (b) Schedule " A " — Downtown Zoning (ii) Official Development Plan 1 D D J U N E 1 9 8 1 - 1 3 0 -(a) By-Law No.4912 (Amended 24/7/79 — No. 5268) Being an Official Development Plan By-law. T H E C O U N C I L O F T H E C I T Y O F V A N C O U V E R in open meeting assembled enacts as follows: 1. That certain document entitled "Downtown Zoning (ii) official development plan", dated October 1975 and marked "Schedule B " is hereby annexed to this By-law as Schedule " A " and shall form an integral part hereof. 2. Schedule " A " is hereby adopted as the Official Development Plan for that portion of the City of Vancouver which has been rezoned as "Downtown District (DD)" by By-law No. 4911. 3. This By-law shall come into force and take effect on and after the date of the passing hereof. D O N E A N D P A S S E D in open Council this 4th day of November, 1975. (Sgd) A . Phillips, Mayor (Sgd) D.H. Little, City Clerk D D JUNE 1981 2 - 1 3 1 -(b) Schedule A Downtown Zoning (ii) Official Development Plan Table of Contents Page Application and Intent 4 Interpretation 6 Definitions 6 Section 1 — Land Use 7 Section 2 — Retail Use Continuity 7 Section 3 — Density 7 Section 4 — Height of Buildings 1 1 Section 5 — Parking and Loading 11 Section 6 — Social and Recreational Amenities and Facilities 14 3 D D JUNE 1981 - 132 -Official Development Plan for the Downtown A P P L I C A T I O N A N D I N T E N T A By-law to regulate the development of that part of the City of Vancouver for which the Zoning District is described as "Downtown District (DD)". DD JUNE 1981 4 - 133 -The Downtown District is the regional centre of commercial development. It contains the greatest concentration of the working and shopping public within the region. The well-being of this concentration of people requires more than the customary regu-latory mechanisms in order that the buildings, the open spaces, the streets, the trans-portation systems, and other components of the urban scene can be arranged appro-priately for the benefit of the general public. The intent, in the adoption of this Official Development Plan and the accompanying guidelines, is as follows: (1) T o improve the general environment o f the Downtown District as an attractive place in which to live, work, shop, and visit. (2) T o ensure that all buildings and developments in the Downtown District meet the highest standards of design and amenity for the benefit of all users of the Downtown. (3) T o provide for flexibility and creativity in the preparation of development proposals. (4) T o encourage more people to live within the Downtown District. (5) T o support the objectives of the Greater Vancouver Regional District as referred to in "The Livable Region 1976/1986" as issued March 1975, to decentralize some office employment to other parts of Greater Vancouver by discouraging office developments considered inappropriate in the Downtown District. (6) T o improve transportation Downtown by encouraging greater transit usage, discour-aging automobile usage for journeys to work, and by maintaining automobile access for non-work trips including shopping, business and entertainment. The Official Development Plan By-law provides the general framework for the prepara-tion of development plans for all individual buildings or complexes of buildings. Development Permit Applications will be made in accordance with the procedures in the Zoning and Development By-law No. 3575. Consideration of any development permit application will be based upon the regulations and requirements of the Official Development Plan and upon such guidelines as Council may from time to time determine, including design guidelines. A significant degree of flexibility is given to architects and others in the preparation of development proposals. A significant degree of discretion is also given to the Develop-ment Permit Board in the interpretation of regulations, policies, and guidelines. Guidelines approved by Council form an integral part of the development control pro-cedure for the Downtown District. In approving any development permit application within the District, the Development Permit Board shall be satisfied that the spirit and intent of such guidelines has been ful-filled. 5 DD J U N E 1981 - 134 -Interpretation A distinction is drawn in this By-law between regulations and interpretation require-ments, as follows: 1. Regulations are set out for land use; maximum standards for building density in terms of floor space ratio; maximum standards for parking and minimum require-ments for loading. 2. Interpretative requirements are set out with respect to the permitted height of buildings, social and recreational amenities and facilities. In the design and/or approval of individual developments variations are permitted in the interpretative requirements. definitions "F loor Space Rat io" shall mean the figure obtained when the area of all floors of all buildings on the site (measured to the extreme outer limits of the building) is divided by the area of the site; Excluded from such calculations are: (a) parking areas, the floor of which is below the building grade of abutting streets or lanes as may be determined by the Director of Planning. (b) balconies, canopies, or other architectural features which in the opinion of the Director of Planning contribute to the amenity and/or environment of the Downtown District. (c) patios or roof gardens provided that any sunroofs or walls are approved by Director of Planning. " H o t e l " shall mean a "hote l" or "mote l" being a building containing not less than 16 units, being either sleeping and/or dwelling units — used as a temporary abode for tourists or transients. "Light Industrial" shall mean any service; manufacturing, wholesaling; warehouse; or other light industrial use, as may be approved by the Development Permit Board and be compatible with the Office, Retail or other Commercial Uses as well as the Residential use of the Downtown District, "Off ice Commercia l" shall mean any office, including Banks and Financial Institutions. "Retail Commercial" shall mean any Retail store, Business, Retail type service activity; or Restaurant (excluding drive-in), provided that such uses shall not include the sale of sex-oriented products without the approval of the Development Permit Board. "Other Commercial" shall mean any other commercial use not being "Retail" or "Office", pro-vided that such use shall not include the sale of sex-oriented products without the approval of the Development Permit Board. "Retail Cont inui ty" shall mean the provision and permanent maintenance of continuous pedestrian orientated retail store type display windows or otherequal and suitable display as may be approved by the Development Permit Board. Entrances to buildings, including offices; hotels; Banks; Financial Institutions; shall not exceed a total of 25 feet of front-age unless they otherwise provide approved retail continuity. DD JUNE 1981 6 - 135 -Section 1 Land Use For many years only commercial (with some light industrial) uses have been permitted throughout the Downtown. In order to increase the variety, amenity, and safety of Downtown, well-designed residential uses will be both permitted and encouraged throughout the Downtown. A mix of uses within single developments or in neighbour-ing sites is also permitted and encouraged. The following uses may be permitted, subject to such conditions and.regulations as may be prescribed by the Development Permit Board: (a) Office Commercial (b) Retail-Commercial (c) Other Commercial (d) Residential (e) Hotels (f) Light industrial (g) Public and Institutional (h) Social, Recreational and Cultural (i) Parks and Open Space Section 2 Retail Use Continuity Subject to such conditions, regulations, and design guidelines as may be determined by the Development Permit Board: Where indicated on Map 1, retail and similar uses shall be required on the street frontages so identified; and shall be encouraged on the other street frontages so identified. The intent of this section is to provide continuous retail and similar uses along existing and potential pedestrian routes for the interest and enjoyment of pedestrians Downtown. Section 3 Density Vancouver's Downtown is and will remain the highest-density commercial area within the City and within the Greater Vancouver Region. However, in order to achieve objec-tives which include: 7 DD JUNE 1981 - 136 -DD JUNE 1981 - 137 -— 1 3 8 -— participation with and encouragement of the Greater Vancouver Regional District's policies for Regional Town Centres, — encouragement of residential use within the Downtown, — encouragement of a mixture of uses in single developments, and — high standards of design throughout the Downtown, the permitted maximum density is varied throughout this District. 1. Subject to conformity with the guidelines, and clause 3 below, the maximum per-mitted density (floor space ratio) shall in no case exceed the amount shown for each of the eight density areas within the district as illustrated on Map 2 and described below: A In the area denoted by the letter ' A ' , the maximum density for any permitted use shall be floor space ratio 9.00. B In the area denoted by the letter ' B ' , the maximum density for any permitted use shall be floor space ratio 7.00. C In the area denoted by the letter ' C , the maximum density for any permitted use shall be floor space ratio 5.00. D In the area denoted by the letter 'D ' , the maximum density for any non-residen-tial use shall be floor space ratio 3.00; however, an additional floor space ratio of 2.00 may be permitted for residential use. E In the area denoted by the letter ' E ' , the maximum density for any non-residen-tial use shall be floor space ratio 1.00; however, an additional floor space ratio of 2.00 may be permitted for residential use. F In the area denoted by the letter ' F ' , the maximum density for any non-residen-tial use shall be floor space ratio 5.00; however, for every square foot of residen-tial floor area, an additional square foot of non-residential floor area shall be permitted up to a maximum additional floor space ratio of 1.00 for residential use and a maximum additional floor space ratio of 1.00 for non-residential use. G In the area denoted by the letter ' G ' , the maximum density for any non-residen-tial use shall be floor space ratio 4.00; however, for every square foot of residen-tial floor area, an additional square foot of non-residential floor area shall be permitted up to a maximum additional floor space ratio of 1.00 for residential use and a maximum additional floor space ratio of 1.00 for non-residential use. H In the area denoted by the letter ' H ' , the maximum density for any non-residen-tial use shall be floor space ratio 2.00; however, for every square foot of residen-tial floor area, an additional square foot of non-residential floor area shall be permitted up to a maximum additional floor space ratio of 2.00 for residential use and a maximum additional floor space ratio of 2.00 for non-residential use. 2. Hotels shall be considered to be a commercial use. 3. Within the Downtown District, residential floor area may be substituted for com-mercial floor area, provided however that in no case shall the density (Floor Space Ratio) of residential use exceed 3. DD JUNE 1981 10 - 139 -Section 4 Height of Buildings The height of buildings shall not exceed the height limits shown on Map 3, except as follows: 1. The Development Permit Board may, in its discretion, permit buildings which exceed the prescribed height limits, after taking particular account of the over-shadowing, view obstruction, and other environmental cr i ter iajet out in the Design Guidelines. However, in no case shall the maximum height as may be permitted exceed 450 feet. It is the purpose of this section to ensure that new development is compatible with that existing in each of the many areas of the Downtown. Section 5 Parking and Loading Traffic congestion detracts from the general amenity of the Downtown. It is one of the objectives of this By-law to reduce traffic congestion particularly within the high-density core area. Parking both in terms of the amount provided and the location at which it is provided is a significant determinant of congestion. The following requirements are intended to reduce commuter parking to a minimum and to permit parking to serve only the other essential needs of Downtown activity: 1. The provision of parking facilities may not be required with developments; however, where parking is provided it shall be subject to the following conditions and regulations: (a) The provision of parking within the area denoted by the letter ' A ' on Map 4 shall not exceed: (i) Off ice Commercial — not more than one space for every 1,000 square feet of such use. (ii) Residential — not more than one parking space for every 1,000 sq. ft. of such use. (iii) Other Permitted Uses — not more than one half of the permitted maximum under Clause 1(b) below. (b) The provision of parking within the area denoted by the letter ' B ' on the map shall not exceed: (i) Office Commercial — not more than one parking space for every 1,000 square feet of such use. (ii) Residential — not more than one parking space for every 1,000 square feet of such use. (iii) Other Permitted Uses — not more than the requirements set out for such uses in Section 12 of the Zoning and Development By-law No. 3575. 11 DD JUNE 1981 - 140 -DD JUNE 1981 12 - 141 -- 142 -2. Parking garages to serve residential, retail, office or other commercial uses may be permitted by the Development Permit Board where special circumstances prevail. The Development Permit Board may require that such parking garage provide, in whole or in part, for non-commuter oriented usage. 3. Surface parking is not permitted except as follows: (a) Surface parking as a separate use may be permitted for a temporary period not exceeding five years, subject to such conditions as may be prescribed by the Development Permit Board. (b) Surface parking as an accessory use, limited in number, may be permitted where in the opinion of the Development Permit Board, there are special peculiarities of the site or the development. Any approval granted pursuant to this clause shall be in accordance with the Design Guidelines. 4. The provision of loading spaces shall be in accordance with the provisions of Section 12 of the Zoning and Development By-law No. 3575, subject to such variations as may be determined by the Development Permit Board. Section 6 Social and Recreational Amenities & Facilities It is the purpose of this Section to provide in the Downtown area social and recreational amenities primarily for the enjoyment of Downtown residents and employees. 1) facilities which provide opportunities for physical fitness; 2) facilities for general recreation; 3) facilities which provide a service to the public. Facilities or areas which contribute to physical amenity, such as parks, plazas, arcades or ornamental elements in the landscape, are not included in this Section. These items and others of a similar nature will be provided where appropriate, as part of the design of the buildings. I. Exclusion from Floor Space Ratio The following ancillary facilities are excluded from the floor area measurement pro-vided that the area of such excluded facilities contained in this section does not exceed 20% of allowable FSR or 10,000 square feet, whichever is the lesser. List of Excluded Uses: (i) saunas (ii) tennis courts (iii) swimming pools (iv) squash courts (v) gymnasiums and workout rooms (vi) games rooms and hobby rooms (vii) day care centres DD JUNE 1981 14 - 143 -(viii) libraries (public) (ix) other uses of a public service, social or recreational nature, which, in the opi-nion of the Development Permit Board, are similar to the above. II. Bonuses for a Provision of Social and Recreational Facilities Where a need for any public, social, or recreational facility has been demonstrated to the satisfaction of the Development Permit Board, the Board may authorize, for any building which includes one or more of such facilities, an increase in the permitted floor space ratio or density of a building, subject to prior approval by City Council . In determining the increase in floor area or density that may be authorized, the Development Permit Board shall consider: - — a) the construction cost of the facility; b) any costs to the developer of continuing maintenance required for the facility; c) the rental value of the increased floor area; d) the value of any authorized relaxation of other restrictions. If appropriate, such facilities shall be preserved in the public domain by way of a registered agreement and operated by the City or its delegates. 15 DD JUNE 1981 - 144 -A P P E N D I X V PLANS, POLICIES, AND GUIDELINES V O L U M E 1 - C I T Y - W I D E 1<??Z- O k Z Z . CONTENTS TITLE ( P u b l i c a t i o n Date) STATUS ( A p p r o v a l Date) RESIDENTIAL A. D e m o l i t i o n C o n t r o l G u i d e l i n e s (1981) B. D e s i g n G u i d e l i n e s f o r New Development A d j a c e n t t o E x i s t i n g H o t e l s and Rooming Houses (198JD C. G u i d e l i n e s f o r M u l t i p l e C o n v e r s i o n D w e l l i n g s i n One- and Two-Family D w e l l i n g D i s t r i c t s ( I n A r e a s Zoned RS-2, RT-1, RT-1A, RT-2, RT-2A) (1980) D. G u i d e l i n e s f o r t h e Development o f S p e c i a l Needs R e s i d e n t i a l F a c i l i t i e s (1980) E. G u i d e l i n e s f o r Townhouse and Apartment Development i n RT-2 and RT-2A Zoned A r e a s ( r e v i s e d 1 9 7 9 ) F. H o u s i n g F a m i l i e s a t High D e n s i t i e s ( 1 9 7 8 ) G. L o c k e d - i n L o t s (1982) H. Narrow L o t s and T h i n Houses ( 1 9 8 0 ) I. R e s i d e n t i a l R e z o n i n g and T r u c k Routes ( 1 9 8 2 ) J . Townhouses i n RS-2 Zoned A r e a s ( I 9 8 I ) K. View P r o t e c t i o n i n S i n g l e - F a m i l y R e s i d e n t i a l A r e a s (1982) COMMERCIAL L. C a b a r e t G u i d e l i n e s (1982) M. Neigh b o u r h o o d G r o c e r y S t o r e G u i d e l i n e s ( 1 9 8 0 ) N. Neighbourhood Pub G u i d e l i n e s (1982) 0. O f f i c e s i n I n d u s t r i a l A r e a s (1977) P. P a r k i n g F a c i l i t y D e s i g n G u i d e l i n e s and St a n d a r d s (1976) 0.. S e l f - S e r v e G a s o l i n e S t a t i o n s (1982) Approved (August 12, I98O) Not A p p r o v e d Not A p p r o v e d Approved ( F e b r u a r y 12 and March 18, I98O) Approved (March 20 and September 11, 1979) Approved ( O c t o b e r 31, 1378) A p p r o v e d (June 23, 196A) Approved (March k, I98O) Approved (March 23, 1382) Approved (August 2k, 1976 , r e a f f i r m e d November 17, 1981) Approved (June 15, 1982) as bas i s f o r r e z o n i ng. Approved (September 2 9 , 1381) Approved ( J u l y 23, I98O) * Approved ( J u l y 1 7 , 1 3 7 3 ) Approved ( A p r i l 26, 1 9 7 7 ) Approved ( O c t o b e r 5, 1 3 7 6 ) Approved (March 23, 1 3 8 2 ) MISCELLANEOUS R. S t r a t a T i t l e C o n v e r s i o n R e g u l a t i o n s ( 1 3 8 1 ) S. Views from B r i d g e s P o l i c y ( 1 3 8 2 ) A p p r o v e d (May 23, 1373 and J u l y 21, 1381) Approved (August 15, 1378) - 145 -PLANS, POLICIES, AND GUIDELINES V O L U M E 2 C E N T R A L A R E A Ob XT-CONTENTS TITLE ( P u b l i c a t i o n Date) C e n t r a l A r e a P e d e s t r i a n Weather P r o t e c t i o n (1979) C e n t r a l Broadway Urban D e s i g n ( R e v i s e d 1980) Downtown G u i d e l i n e s ( i ) P l a n n i n g P o l i c i e s (1980) ( i i ) D e s i g n G u i d e l i n e s (1980) ( i i i ) C h a r a c t e r A r e a s (1982) F a l s e Creek P o l i c i e s (1982) F a i r v i e w S l o p e s P o l i c i e s and G u i d e l i n e s (1982) G r a n v i l l e I s l a n d : R e f e r e n c e Document f o r F a l s e Creek A r e a 9 (1978) Robson Square C h a r a c t e r A r e a G u i d e l i n e s (1977) Robson S t r e e t 1000 - 1200 B l o c k I n c l u s i v e (1982) West End P l a n n i n g P o l i c i e s and D e s i g n Gu i d e 1 i nes Y a l e t o w n P o l i c i e s (1982) STATUS ( A p p r o v a l Date) Approved (December 12, 1978) Approved (March 23, 1976; Amended F e b r u a r y 22, 1977) Approved (September 30, 1975 and December 16, 1975; Amended May 10, 1977 and J a n u a r y 26, 1982] Approved (December 16, 1975, November 9, 1976, August 15, 1978, F e b r u a r y 3, 1981, A p r i l 6, 1982) Approved (June 1 and September 21 1976; R e a f f i r m e d March 9, 1982) Approved ( A p r i l 18, 1978) Not Approved Approved ( J a n u a r y 26, 1982) Approved (May 13 and 27, 1975; Amended J u l y 8, 1975) Approved ( J a n u a r y 26 and May 11, 1982) - 146 -V O L U M E L O C A L A R E A S CONTENTS j f i j V L Ob - Z .2-TITLE ( P u b l i c a t i o n Date) Champlain Heights Implementation Report Development o f Areas E and F (197M City-Owned Lands 5th £ Renfrew, 7th & Kaslo , Design Gu ide l ines (1982) STATUS (Approval Date) Approved (May 6, 1975) Approved (June 1 , 1982)-F i r s t Shaughnessy Design Gu ide l ines (1982) Approved (May ] I, 1932 ) Fraser S t reet Study - Kingsway to 37th Avenue (1980) Grandview-Woodland Area P l a n , Part 1: Grandv iew-V ic to r ia ( S i n g l e - F a m i l y , Duplex, and Conversion Areas) (1979) Grandview-Woodland Area P o l i c y P l a n , Part 2; Commercial Dr ive (1982) Ker r i sda le R e s i d e n t i a l Zoning (1982) Kingsway East P o l i c i e s and S i te Guide l ines (1982) K i t s i l a n o Design G u i d e l i n e s : Apartment and Commercial Areas (1977) K i t s i l a n o Neighbourhood Plan (1977) and Addendum (1980) Kiwassa Land Use and Zoning (1982) The Marpole Plan (1979) and Summary (I98O) Puget and Eddington Lands Development Plan Design Gu ide l ines (1980) Shaughnessy Hosp i ta l Area Rezoning P o l i c y (1982) Approved (August 26, I98O) Approved (June 12, 1979) Approved (November k, I98O) Approved (October 7, 1980) Approved (October 17, 1978) Approved (July 12, 1977) Approved (various dates) Approved (December k, 1979) Approved (October 30, 1979) Approved (November 18, 1980) Approved (February 20 and May 15, 1979, reaf f i rmed March 9 , 1982) South East Marine Lands East P r e c i n c t Development Plan (Revised 1980) Approved (August 12, 1980) 1 7 A P P E N D I X V I Development Permit Board and Development Permit Advisory Panel By-law No.4876 A By-law to create Boards to be known as the "Development Permit Board" and "Development Permit Advisory Panel" T H E C O U N C I L O F T H E C I T Y O F V A N C O U V E R in open meeting assembled, enacts as follows: 1. (a) A Board, to be known as the "Development Permit Board" (hereinafter refer-red to as the "Board") is hereby established and appointed. (b) A Panel to be known as the "Development Permit Board Advisory Panel" (hereinafter referred to as the "Advisory Panel") is hereby established. 2. It is hereby declared that this by-law is passed with the intention that each section shall be independent of the other so that, should any section be declared invalid, then such section shall be severable. 3. The Board shall consist of the following persons: (1) From the date of the enactment of this by-law until the 29th day of September, 1975, the Director of Planning shall constitute the Board. (2) Thereafter the Director of Planning, the Director of Social Planning, and the City Engineer shall constitute the Board. 4. (a) The duties and functions of the Board are to receive and approve or disapprove such Development Permit applications as may by by-law be prescribed to be brought before the Board. (b) In the consideration of all applications brought before it, the Board shall hear any representations of the applicant as well as any other person interested in the application, and before rendering its decision shall consult with and receive any submissions of the Advisory Panel. (c) There shall be a Chairman who shall be the Director of Planning. 1 APPENDIX VI JUNE 1981 - 148 -5. The Advisory Panel shall consist of six persons to be appointed by City Counci l , of which two shall be representatives of the development industry, two representatives of the development professions and two representatives of the general public. The term of office of the initial appointees is one year for three of such members (being one from each of the three groups hereinbefore referred to) and two years for the remaining three. Al l appointees' memberships shall terminate on the expiration of their appointed term, or until their successors are appointed, whichever is the later, and all appointees shall be eligible for reappointment. No person shall be appointed to the Advisory Panel if such person: — -(i) is an alderman; is an employee of the city, or otherwise holds an elected office; (ii) is not an elector or has not resided in the City for at least six months immediately preceding his appointment; (iii) is not a Canadian citizen. 6. The function of the Advisory Panel is to act in an advisory capacity to the Board with respect to Development Permit applications which are required to be submit-ted to the Board, and it shall attend and participate in all meetings of the Board as provided in Section 3. 7. Any member of the Board with the approval of Council is hereby authorized to deputize a person to act on his behalf at any meeting of the Board. 8. Subject to the provisions of this by-law, the Board shall determine its own proce-dure provided that after the 2nd day of September, 1975, all decisions of the Board shall be delivered in public unless the Board for good and sufficient cause otherwise directs, and the Board shall state the reason for its decision. The Board may set the time, date and place of its meetings provided that the Chairman shall be at liberty to call a meeting whenever he deems it necessary. 9. The Board shall keep written minutes of all business transacted at the meetings. 10. This by-law shall come into force and take effect on the passing hereof. D O N E A N D P A S S E D in open Council this 24th day of June, 1975. (Sgd) Ar t Phillips, Mayor (Sgd) D.H. Little, City Clerk "I hereby certify that the foregoing is a correct copy of a By-law duly passed by the Council of the City of Vancouver on the 24th day of June, 1975, and numbered 4876. C I T Y C L E R K . " APPENDIX Vr JUNE 1981 2 

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