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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. U n i v e r s i t y of A l b e r t a , 1973  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS  in THE FACULTY OF GRADUATE STUDIES SCHOOL OF COMMUNITY AND REGIONAL PLANNING  We accept t h i s 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 p r e s e n t i n g  t h i s t h e s i s i n p a r t i a l f u l f i l m e n t o f the  requirements f o r an advanced degree a t the U n i v e r s i t y of B r i t i s h Columbia, I agree that the L i b r a r y s h a l l make it  freely  a v a i l a b l e f o r r e f e r e n c e and study.  I further  agree t h a t p e r m i s s i o n f o r e x t e n s i v e copying o f t h i s  thesis  f o r s c h o l a r l y purposes may be granted by the head o f my department o r by h i s o r her r e p r e s e n t a t i v e s . understood that copying o r p u b l i c a t i o n o f t h i s for financial  gain  It i s thesis  s h a l l not be allowed without my  permission.  Department o f The  C<y**i/wuM»jft^ QL~JL VJU^O^SI  U n i v e r s i t y o f B r i t i s h Columbia  1956 Main M a l l  Vancouver, Canada V6T 1Y3 Date  DE-6 (3/81)  'QcA^o^r  fe  j  ?Z,  P/<uwu^  written  - ii -  ABSTRACT Zoning has existed in North America since the early 1900's and has evolved from the t r a d i t i o n a l  s e l f - e x e c u t i n g Euclidean zoning approach to  the recent use of f l e x i b l e zoning techniques involving increased d i s c r e t i o n a r y judgement by delegated boards and o f f i c i a l s . This study examines the evolution and increased use of f l e x i b l e zoning techniques which afford greater opportunity for c r e a t i v i t y and innovation, and allows for i n d i v i d u a l i z e d treatment of projects compared to the t r a d i t i o n a l approach of pre-determined, r i g i d regulation which often  inhibits  and responds poorly to changing public needs. However, because these techniques are more f l e x i b l e and decisions more d i s c r e t i o n a r y , they are more d i f f i c u l t to administer, have the potential abuse, and involve greater public r i s k .  for  The thesis examines the concept of  administrative d i s c r e t i o n , and formulates a conceptual framework which i d e n t i f i e s three preconditions which must be provided in a d i s c r e t i o n a r y zoning system in order to inform and control d i s c r e t i o n a r y judgements. F i r s t , a substantive basis i s required comprised of two p a r t s :  a) a tech-  n i c a l basis in standards; b) a p o l i c y basis in a comprehensive plan.  Thirdly,  procedural safeguards are required to prevent abuse, and increase openness and a c c o u n t a b i l i t y . The second part of the thesis examines the C i t y of Vancouver land use control systemcwith respect to the nature and extent of  administrative  d i s c r e t i o n and i t s r e l a t i o n s h i p to the conceptual framework.  It  reveals  that wide d i s c r e t i o n a r y powers are granted to Vancouver b o a r d s / o f f i c i a l s (the Development Permit Board and the Director of Planning).  The study  concluded that the Vancouver d i s c r e t i o n a r y zoning system complies with the i n t e n t of the conceptual framework; however, major d e f i c i e n c i e s in  - iii  -  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 suggestions are offered towards compliance with the conceptual  framework  and achievement of planning o b j e c t i v e s . The study revealed that there i s 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 use r e g u l a t i o n .  The two extremes of complete unfettered d i s c r e t i o n or  complete ri.gidi.ty are not d e s i r e d . with r e s t r a i n t .  and c e r t a i n t y in land  Rather, what i s needed i s  flexibility  Discretion must e x i s t , yet i t must be part of a continuous  comprehensive planning process which o f f e r s substantive guidance and safeguards, and i s exercised by competent b o a r d s / o f f i c i a l s to whom d e c i s i o n making has been delegated.  - iv TABLE OF CONTENTS CHAPTER I  II  PAGE Introduction  1  A.  Objectives of the Study  2  B.  D e f i n i t i o n s of Terms  3  C.  Scope and Limitations of the Study  5  D.  Methodology and Sources of Data  5  E.  Organization of Study  6  F l e x i b l e / D i s c r e t i o n a r y Zoning - Evolution  9  and Conceptual Framework A.  Rise of F l e x i b l e / D i s c r e t i o n a r y Zoning  B.  Discretion and Discretionary Zoning Process 1.  C.  .  Discretion and Administrative Adjudication  2. Process of Discretionary Zoning Substantive Basis and Procedural Safeguards for Discretionary Zoning Decision Making 1.  2.  Substantive Basis  9 14 . . . .  14  . . . .  17 21 21  a)  Technical B a s i s :  b)  Policy Basis:  Standards  Comprehensive Plan  Procedural Safeguards  21 22 24  D.  Discretionary 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 A.  B.  C. IV  32  T r a d i t i o n a l Techniques  . .  33  1.  The Variance  33  2.  Rezoning (Spot Zoning)  34  Recent F l e x i b l e Techniques  36  1.  Planned Unit Development (PUD)  36  2.  Incentive Zoning  38  3.  Performance Zoning  40  Summary  42  Case Study - Vancouver Discretionary Zoning  45  A.  Introduction  45  B.  P r o v i n c i a l Enabling L e g i s l a t i o n - Discretion  46  C.  Vancouver L e g i s l a t i o n - Discretionary Zoning  49  1.  Introduction  49  2.  Zoning and Development Bylaw 3575  3.  4.  . .  54  a)  Description of L e g i s l a t i o n - Discretionary Zoning Administration  b)  Analysis of L e g i s l a t i o n - Discretionary Zoning Administration  c) d)  . .  55  . . . .  60  Discretionary and T r a d i t i o n a l Zoned Areas  . . .  62  Discretion and Discretionary Zoned Areas  . . .  65  Other L e g i s l a t i o n  69  a)  P o l i c i e s , G u i d e l i n e s , Plans  70  b)  Development Permit Board and Advisory Panel Bylaw 4876  Summary  . .  71 71  vi PAGE D  Vancouver Process • Discretionary Zoning  75  1.  Introduction  75  2.  Development Permit Process  75  a)  Flow Chart  75  b)  Description of Process  77  c)  Analysis of Process  79  3.  V.  Summary  82  E.  Conclusions  86  F.  Summary  93  .  Epilogue  96  BIBLIOGRAPHY  103  APPENDICES  106  Appendix  I.  Vancouver Charter; Sections 559-573  II.  Vancouver Zoning and Development Bylaw 3575; Section 3  III.  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 t y of Vancouver Plans, P o l i c i e s , Guidelines VI. Development Permit Board and Development Permit Advisory Panel Bylaw 4876  - vii  -  LIST OF FIGURES FIGURE 1.  C i t y of Vancouver, T r a d i t i o n a l  PAGE and Discretionary  52  (ODPs) Zoned Areas 2.  C i t y of Vancouver, O f f i c i a l Development Plan Areas  53  3.  C i t y of Vancouver, Development Permit Process  76  4.  C i t y of Vancouver, Discretionary Zoning Matrix  85  - viii  -  ACKNOWLEDGEMENTS  I express my appreciation to f a c u l t y advisors B. Wiesman and W. T. Lane for t h e i r invaluable guidance and encouragement throughout the t h e s i s . I also extend gratitude to the s t a f f of the C i t y of Vancouver Planning Department for t h e i r ongoing assistance and cooperation in the case study. In p a r t i c u l a r , I thank my wife Wendy and daughters Shannon and Jennifer for t h e i r ever present patience and support.  - 1 CHAPTER I  INTRODUCTION  Zoning i s the s i n g l e most commonly used legal device for regulating land use.  Its o r i g i n can be traced back to 19th Century Germany.1  were examples in Eastern Canada and in New England of statutes  Although there restricting  building height, s i z e , and setbacks in the e a r l y 1900s2, the o f f i c i a l  s t a r t of  comprehensive zoning in North America was 1916 with the passage of a zoning bylaw f o r New York C i t y .  Early land use regulation was r i g i d , with n e g l i g i b l e opportunity f l e x i b i l i t y and d i s c r e t i o n in i t s a d m i n i s t r a t i o n .  for  Such approach i s referred  to as Euclidean, named after a 1926 Court decision e s t a b l i s h i n g the  validity  of zoning in the U.S.A.3  Since then, however, zoning has changed and i t s administration has become much more demanding and time consuming.  The f a m i l i a r "as of r i g h t " or s e l f -  executing nature of the Euclidean zoning system has l a r g e l y been replaced.4 Rather than resolving most land use issues when the zoning bylaw i s adopted with pre-determined r e g u l a t i o n s , more development issues are being decided at the time development i s proposed. creativity,  This allows opportunity for greater  innovation, and i n d i v i d u a l i z e d treatment of p r o j e c t s .  And because  many of the tools are more f l e x i b l e , and the decisions more d i s c r e t i o n a r y , i . e . judgment by public o f f i c i a l s i s involved, they are d i f f i c u l t to administer and involve greater public 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 i n v o l v ing increased d i s c r e t i o n in t h e i r a d m i n i s t r a t i o n , and the delegation of a u t h o r i t y to o f f i c i a l s .  It also examines the necessity to control and inform  t h i s d i s c r e t i o n , and in p a r t i c u l a r , establishes preconditions f o r the exercise of d i s c r e t i o n .  These preconditions, or the conceptual framework, are intended  to minimize the p o t e n t i a 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 t y of Vancouver's d i s c r e t i o n a r y zoning system with respect to the nature and extent of d i s c r e t i o n granted the adminis t r a t i o n and the compliance with the conceptual framework established e a r l i e r in the t h e s i s .  The o b j e c t i v e s , then, are twofold.  The f i r s t is to e s t a b l i s h a  conceptual framework f o r the proper exercise of d i s c r e t i o n in a zoning system in order to minimize abuse, and provide a p o s i t i v e planning t o o l .  The second  i s to determine Vancouver's compliance with such framework.  Hopefully, the f i n d i n g s of the study w i l l make a contribution to the small but increasing l i t e r a t u r e on d i s c r e t i o n a r y zoning, and r a i s e some issues which may a s s i s t the C i t y of Vancouver in i t s approach to land use c o n t r o l .  - 3 -  B.  D e f i n i t i o n of Terms  Several planning terms are used frequently throughout the t h e s i s , and may be open to m i s i n t e r p r e t a t i o n .  Consequently, these terms are defined at t h i s  stage in order to better understand the complex and judgmental concept of d i s c r e t i o n a r y zoning.  Discretion -  Individualized a p p l i c a t i o n of administrative  judgment  which allows a v a r i a b l e response and s o l u t i o n to a problem.  F l e x i b l e Techniques -  land use controls which permit wide development options through the exercise of d i s c r e t i o n .  Discretionary Zoning  a f l e x i b l e land use control system whereby development approval occurs by permission and not by r e g u l a t i o n ; granted by an authority e x e r c i s i n g d i s c r e t i o n .  Euclidean Zoning -  The t r a d i t i o n a l  as of r i g h t or s e l f - e x e c u t i n g zoning  in which regulations are e x p l i c i t and r i g i d ; administrative d i s c r e t i o n i s n e g l i g i b l e .  Negotiation -  A process whereby a developer submits a proposal to public 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 i s c r e t i o n a r y zoning.  - 4 Outright Zoning -  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  Conditional Zoning  mandatory compliance.  d i s c r e t i o n authorized by express p r o v i s i o n granting permission to depart from the general provisions of a zoning bylaw.  Comprehensive plan  a series of documents s e t t i n g f o r t h p o l i c i e s 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.  Policy  Broad statements of objectives of a public body that form the basis f o r enacting l e g i s l a t i o n or for making decisions.  Standards -  s p e c i f i c q u a n t i t a t i v e development regulations such as l o t area, frontage, yards, d e n s i t y , parking, performance standards.  Guidelines -  i n t e r p r e t i v e statements intended to help generate a unique s o l u t i o n ; may be a mixture of narrow standards and broad p o l i c y .  - 5 C.  Scope and L i m i t a t i o n of the Study  This study of land use control i s focused on d i s c r e t i o n a r y zoning and in p a r t i c u l a r , on the controls and l i m i t s to d i s c r e t i o n necessary to enable d i s c r e t i o n a r y zoning to be a p o s i t i v e regulatory device.  It must be noted, however, that a d i s c r e t i o n a r y zoning system r e l i e s on the e n t i r e planning process in support of i t s a d m i n i s t r a t i o n .  As a r e s u l t ,  the t h e s i s 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 administrative d i s c r e t i o n , exercised by o f f i c i a l s / b o a r d s e x e r c i s i n g 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 r e n t i a t i n g  among  l e g i s l a t i v e , a d m i n i s t r a t i v e , and q u a s i - j u d i c i a l a c t i o n s , 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 r a t u r e on land use c o n t r o l , with emphasis on innovations and f l e x i b l e techniques involving administrative  discretion.  The bulk of the l i t e r a t u r e was from the U.S.A. but the differences in planning and zoning l e g i s l a t i o n between Canada and U.S.A. i s 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 t s t o 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 o f boards, a C i t y lawyer, and from attending Development Permit Board and Board o f 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 o f Vancouver Zoning and Development Bylaw.  The nature o f the study d i d  not n e c e s s i t a t e the use of resources o u t s i d e the C i t y a d m i n i s t r a t i o n .  E.  Organization o f 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.  I t d e f i n e s important terms, the scope and l i m i t a t i o n s , and  d e s c r i b e s the o r g a n i z a t i o n o f the t h e s i s .  Chapter II examines the increased use o f f l e x i b l e zoning techniques involving considerable administrative discretion.  The b a s i c elements o f  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 identified.  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 t o 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 t o the d i s c r e t i o n a r y zoning i s a l s o examined.  Chapter I I I examines f i v e f l e x i b l e zoning techniques which i n v o l v e the e x e r c i s e o f v a r y i n g 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), incentive zoning, and performance zoning.  The  r e l a t i o n s h i p of these techniques to the conceptual framework i s also analyzed.  Chapter IV is the case study of the C i t y of Vancouver's land use control system which grants considerable d i s c r e t i o n 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 established in Chapter II and draws relevant conclusions.  Chapter V i s the f i n a l chapter which synthesizes the f i n d i n g s of the t h e s i s and integrates the conceptual framework and case study of Chapter IV. Directions f o r f u r t h e r 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 a g e of E u c l i d (Ohio) V. Ambler Realty C o . , 272 U.S. 365, 47 S . C t . , 114 (1926)  4.  Michael Meshenberg, "The Administration of F l e x i b l e Zoning Techniques", ASPO, Planning Advisory S e r v i c e , 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 r a d i t i o n a l  Euclidean  zoning to the more recent d i s c r e t i o n a r y zoning techniques, and examining the response to the increased use of the l a t t e r .  Section B then examines  " d i s c r e t i o n " in i t s basic administrative elements, followed by a review of the d i s c r e t i o n a r y zoning process.  The exercise of administrative d i s c r e t i o n p o t e n t i a l l y opens the system to abuse and a r b i t r a r i n e s s .  To minimize the p o t e n t i a l f o r abuse, but yet maintain  d i s c r e t i o n a r y zoning's p o s i t i v e 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 , it  i s necessary to e s t a b l i s h a substantive basis f o r the exercise of d i s c r e t i o n  and to impose procedural safeguards. discussed in Section C.  Three prerequisites f o r d i s c r e t i o n are  Section D b r i e f l y examines the Court's response to  d i s c r e t i o n a r y 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 r a d i t i o n a l  r i g i d Euclidean s t y l e zoning question both i t s  performance and basic foundation.  C r i t i c s charge t h a t :  1.  It can be misused to permit destruction of valuable h i s t o r i c a l and resources.  2.  It leads to design monotony.  sites  - 10 3.  It bears l i t t l e r e l a t i o n s h i p to r a t i o n a l l y developed public plans and p o l i c i e s . ^  4.  It decides too much too soon - before there i s a r a t i o n a l basis for determining how land should be used.2  5.  It  6.  It establishes a r e l a t i v e l y f i x e d approach to land use design while development f a c t o r s c o n t i n u a l l y 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 prohibit.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 t a t i c end state concept of land use c o n t r o l . °  9.  It is based on the u n r e a l i s t i c assumption that the " i d e a l c i t y " is a pattern of contrasting d i s t r i c t s that r i g i d l y separate incompatible uses.  is the t a i l that wags the planning dog.3  7  In e f f e c t , the c r i t i c s assert that the whole system i s outdated and that it  i s incapable of dealing with the complex and often-competing  social,  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 public debate and formal adoption of the ordinance would minimize the need for d i s c r e t i o n a r y judgments in i t s a d m i n i s t r a t i o n .  However, i t has not worked out in the neat,  orderly  and e f f i c i e n t manner a n t i c i p a t e d .  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 unnecessarily prolonged the existence of a land use control device conceived in another e r a " .  Reps asked "would i t not be d e s i r a b l e to  construct a system of development controls in which informed d i s c r e t i o n a r y judgment plays the dominant or at least a larger r o l e ? "  He went on to suggest  such d i s c r e t i o n should be guided by a community plan and a set of development standards and objectives.8  - 11 Reps also addressed serious objections which may be raised against d i s c r e t i o n a r y zoning - claiming the "new approach" v i o l a t e s the cherished p r i n c i p l e s of c e r t a i n t y and p r e d i c t a b i l i t y that are supposed to be v i r t u e s 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 t h a t :  "This theory, however, i s deeply undercut by the multitude of zoning amendments, improper v a r i a n c e s , s p e c i a l exception permits, f l o a t i n g zone approvals, and unenforced v i o l a t i o n s . What remains i s the structure of c e r t a i n t y without the substance - a mere facade of respectable p r e d i c t a b i l i t y masking the practice of unguided administrative and l e g i s l a t i v e discretion. Would a system such as I have proposed, with d i s c r e t i o n a r y judgments f i r m l y based on an o f f i c i a l plan s e r v i c i n g as Haar's "impermanent c o n s t i t u t i o n " and guided by stated development goals and standards, fundamentally reduce the degree of c e r t a i n t y that now p r e v a i l s ? 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 f a t . " 9  The i n c l u s i o n of d i s c r e t i o n a r y a u t h o r i t y in l o c a l land use control systems has increased tremendously. o r d e r l y , organized system.  However, i t  is s t i l l  a long way from an  What e x i s t s now i s 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 l d " f l e x i b l e techniques such as variances and rezonings have been added many new devices to meet s p e c i a l development c o n s i d e r a t i o n s .  These  include incentive (bonus) zoning, impact zoning, f l o a t i n g zones, o v e r l a y s , PUD, TDR, etc - each f l e x i b l e device allows considerable d i s c r e t i o n a r y authority to delay or respond to development which i s about to occur and to specify in d e t a i l how such development i s to occur.  The extent of  flexibility  - 12 and administrative d i s c r e t i o n varies widely among techniques and j u r i s d i c t i o n s . Increasing governmental d i s c r e t i o n i s a s i g n i f i c a n t administrative departure from the old s e l f - e x e c u t i n g or a s - o f - r i g h t zoning system. of t h i s approach i s i t s f l e x i b i l i t y .  They key ingredient  Because many of these t o o l s are more  f l e x i b l e and decisions more d i s c r e t i o n a r y , i . e . judgment by p u b l i c o f f i c i a l s i s involved, they are d i f f i c u l t to administer and involve greater p u b l i c r i s k .  The increasing r e l i a n c e on d i s c r e t i o n a r y land use controls can be a t t r i b u t e d to many f a c t o r s .  Fishman i d e n t i f i e s f i v e f a c t o r s :  1.  Disillusionment with t r a d i t i o n a l options;  techniques that l i m i t development  2.  Larger scale of land development involving complex i n t e r r e l a t i o n s h i p s ;  3.  Land use c o n t r o l s are expected to meet wider public o b j e c t i v e s ;  4.  A greater s o p h i s t i c a t i o n of a l l actors in the development process;  5.  A f l e x i b l e system i s necessary to work w i t h i n an evolving several t i e r system of land development c o n t r o l . 1 °  The trend toward f l e x i b l e d i s c r e t i o n a r y zoning techniques has received a mixed response. traditional  Those who favour d i s c r e t i o n a r y zoning controls over  a s - o f - r i g h 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 objectives 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 u a t i o n ; they increase opportunity f o r the use of cost-saving development methods;  - 13 they more r e a d i l y permit the implementation of special community objectives such as increased housing opportunity or protection of environmentally s e n s i t i v e areas; they may open up the administrative process to closer public and  scrutiny;  they are much better suited to the larger scale at which most f r i n g e area development o c c u r s . H  Others express strong reservations about the a b i l i t y of l o c a l government to administer d i s c r e t i o n a r y controls wisely and see serious dangers in t h e i r growing use.  Concerns i n c l u d e :  the secrecy attending most n e g o t i a t i o n s , which opens up the p o s s i b i l i t y of, or at least charges o f , deal making, b r i b e r y , and extortion; a l l e g a t i o n s that communities make a r b i t r a r y and excessive demands of developers and, conversely, that developers can often put things over on unsuspecting communities, whose c i t i z e n s must then bear the resulting costs; the i n a b i l i t y to predict l i k e l y development and hence the to plan and program future public c o s t s ;  inability  the uncertainty of present residents about what w i l l be b u i l t nearby and i t s e f f e c t on t h e i r taxes; and the opportunity to exercise de facto exclusionary p o l i c i e s under the guise of cooperation.12  The answer to these reservations about d i s c r e t i o n a r y controls does not l i e in abandoning them. considerable.  The benefits from the f l e x i b l e techniques are  They key i s to assure that a s o l i d basis and adequate safeguards  e x i s t in the use of d i s c r e t i o n a r y c o n t r o l s . Section C of t h i s  chapter.  This w i l l be discussed in  - 14 B.  DISCRETION AND DISCRETIONARY ZONING PROCESS  This section i s divided into two p a r t s .  Part one examines d i s c r e t i o n and  administrative a d j u d i c a t i o n , in i t s basic elements, from the perspective of two legal s c h o l a r s . and in p a r t i c u l a r ,  1.  Part two discusses the process of d i s c r e t i o n a r y zoning, negotiation.  Discretion and Administrative  Adjudication  D i s c r e t i o n , in i t s legal sense, may be defined as:  "the l a t i t u d e of decision within which a court or judge decides questions a r i s i n g in a p a r t i c u l a r case not expressly c o n t r o l l e d by f i x e d rules of law, according to the circumstances, and according to the judgment of the court of judge."13  Or, more simply, d i s c r e t i o n is "an i n d i v i d u a l i z e d a p p l i c a t i o n of adminis t r a t i v e judgment which allows v a r i a b l e response and solution to problems evolving from changing c o n d i t i o n s " ^  An administrative body is said to possess d i s c r e t i o n a r y power when a choice of solution to a given s i t u a t i o n i s allowed or provided for in law. Such is the case in most administrative bodies in the municipal planning setting.  A doctoral thesis by E.D. F o l l i c k e n t i t l e d  "The Element of Discretion  Inherent in Administrative A d j u d i c a t i o n " (1969) examines the far reaching implications of d i s c r e t i o n inherent in administrative a d j u d i c a t i o n . *  5  Follick  - 15 concludes that with the l e g i s l a t i v e , executive, and j u d i c i a l aspects of government fused into the administrative u n i t , the p o s s i b i l i t i e s of d i s c r e t i o n in each phase of administrative action are considerable.  He goes on to say  that f l e x i b i l i t y i s of the essence to p r a c t i c a l and meaningful regulation demanded of modern government, and that d i s c r e t i o n plays a v i t a l r o l e in such adaptability.  F o l l i c k states that d i s c r e t i o n accorded an administrative agency must have guidelines and procedural safeguards.  The l e g i s l a t u r e , in delegating  power authorizing d i s c r e t i o n , must c l e a r l y delineate the conditions and circumstances in which the administrative d i s c r e t i o n a r y power i s to operate. However, the l e g i s l a t u r e should not grant complete d i s c r e t i o n to an adminis t r a t i v e agency which would e n t i r e l y circumvent the l e g i s l a t i v e process.  He  goes on to say that the l e g i s l a t u r e should not s t i p u l a t e that the administrative adjudicative process contain the least d i s c r e t i o n p o s s i b l e , f o r undue r e s t r i c t i o n s would deny administrative operation of the c r e a t i v e and adaptable stance intended f o r r e a l i s t i c s o l u t i o n of diverse and s p e c i a l i z e d problems.  F o l l i c k stresses that both the rule-making and adjudicative agencies are c o n t r o l l e d through statutory requirements of the l e g i s l a t u r e and by j u d i c i a l review of procedures by the courts reducing the p o t e n t i a l f o r abuse.  The d i s c r e t i o n inherent in administrative adjudicative allows an agency to formulate diverse p o l i c i e s commensurate with the objectives of the governing legislation.  The courts have requested the administrative t r i b u n a l to evolve  - 16 procedures and p o l i c i e s from the statutory d i s c r e t i o n granted, rather than to r e l y on questionable legal precedents from the courts which have unknown applicability.  The evolution of generalized procedures boundarizes d i s c r e t i o n  f o r the guidance of future conduct.  F o l l i c k ' s point here can be applied to  the use of d i s c r e t i o n a r y zoning techniques and the need f o r procedural safeguards and a substantive basis for decision making in order to "boundarize" discretion.  F o l l i c k believes that the larger issue of administrative d i s c r e t i o n i s not a matter of standards, but rather that d i s c r e t i o n a r y action must be subject to s t i p u l a t e d safeguards in order to insure f a i r n e s s and due process in agency a c t i o n .  The presence of safeguards does not prevent d i s c r e t i o n with  respect to the substance of the agency proceedings, but rather ensures natural justice.  F o l l i c k concluded that the exploration of the many phases of administrative d i s c r e t i o n reveals the necessity f o r f l e x i b i l i t y  and  a d a p t a b i l i t y on the part of agency technique and o r g a n i z a t i o n .  The times and  technological change simply demands  it.  J . L. Jowell in "Law and Bureaucracy" (1976) examined the merits and defects of law to control administrative d i s c r e t i o n .  1 6  His f i n d i n g s ,  in  general, were that such legal techniques are often mixed blessings and that t h e i r benefits from the bureaucracy's perspective were frequently o f f s e t by t h e i r burdens from the perspective of some or a l l of the bureaucracy's clientele.  -  17  -  He found that rules could provide f o r r e l a t i v e l y uniform a p p l i c a t i o n and certainty.  Rules could also encourage administrative i n t e g r i t y by  inhibiting  arbitrariness.  On the other hand, the existence of a " r u l e " does not guarantee q u a l i t y , f a i r n e s s , or generosity.  its  The seeker of " i n d i v i d u a l i z e d " j u s t i c e may  resent being placed in a category s h i e l d i n g decision makers from considering unique circumstances. legalism and r i g i d i t y .  The by-product of c e r t a i n t y and uniformity i s  frequently  J o w e l l ' s f i n d i n g s can by applied to the planning  context where Euclidean zoning was the " r u l e " and provided uniformity and certainty.  However, Euclidean zoning was seen as unacceptable and consequently,  d i s c r e t i o n a r y zoning with " i n d i v i d u a l treatment" i s viewed as a v i a b l e substitute.  2.  Process of Discretionary Zoning  F l e x i b l e zoning techniques involve more than the t r a d i t i o n a l of compliance by an administrative o f f i c i a l .  determination  While they vary in procedural  complexity, each requires some evaluation by l o c a l o f f i c i a l s before approval i s granted; and many require extended negotiations.  A considerable element of  administrative d i s c r e t i o n enters the p i c t u r e .  The i n j e c t i o n of d i s c r e t i o n necessitates more stages in the approval process.  Substantial professional s k i l l s are needed, and more public bodies  - 18 become involved in making d e c i s i o n s .  And often due to extended n e g o t i a t i o n s ,  increased time i s required compared to the administration of conventional regulations.  Negotiation i s a bargaining process.  There are three basic i n t e r e s t groups involved in t h i s process:  1.  land owner/applicant/developer/consultants;  2.  p u b l i c review authority - planners, and elected o f f i c i a l s , agencies of l o c a l governments; and  3.  general p u b l i c . 1 ?  It  i s the f i r s t two groups which d i r e c t l y p a r t i c i p a t e in the negotiations,  p a r t i c u l a r l y the planner and a p p l i c a n t .  The general public i s generally  afforded an opportunity to be heard at public hearings.  A key issue in negotiations i s the need to maintain an open process within defined g u i d e l i n e s .  The give and take of bargaining may lend i t s e l f to one  side t r y i n g to take advantage of the other:  "It  i s a human process which p i t s  p e r s o n a l i t i e s against one another, and the stronger party u s u a l l y wins."18  However, the negotiation process r a i s e s some important questions as to who gets to t a l k to who, about what and when.  Statutory and common law rules  of procedure u s u a l l y provide that decisions are made only a f t e r a public hearing at which a l l interested p a r t i e s have a chance to present t h e i r case. Rules of natural j u s t i c e must not be ignored.  S e n s i t i v e n e g o t i a t i o n s , however,  do require some privacy - but privacy can go too f a r .  Unnecessarily  r e s t r i c t i v e l i m i t a t i o n on the negotiation process might e f f e c t i v e l y preclude  - 19 use of many f l e x i b l e techniques.  A balance needs to be sought between  protecting the r i g h t s of a l l p a r t i e s and recognizing the way the process works.  Meshenberg o u t l i n e s the following procedural g u i d e l i n e s :  1.  The minimum amount of negotiation should occur in p r i v a t e . should be taken of negotiating sessions.  Minutes  2.  The negotiation process should be separate from the decision making process. Decision makers should not take part in n e g o t i a t i o n s .  3.  The public hearing should be a meaningful rather than pro forma public p a r t i c i p a t i o n to assure the public that decisions are not made in advance.19  Meshenberg goes on to say that even with the most c a r e f u l l y drafted r u l e s , not every community i s able to bargain e f f e c t i v e l y in the public i n t e r e s t , o r , more broadly, to administer the new d i s c r e t i o n a r y c o n t r o l s .  He  says that the e f f e c t i v e negotiator should demonstrate the f o l l o w i n g :  1.  Competence (experienced and sophisticated)  2.  Professionalism (recognize and protect public  3.  E t h i c a l behaviour (non discriminatory)  4.  Comprehensiveness (wide view).  5.  Knowledge of regulations (understand intent of regulations and policies)™  interest)  Babcock examines the zoning process, p a r t i c u l a r l y the control of discretion.21  He states that f i r s t l y ,  nothing i s so important to a successful  scheme of land use regulation as d i s c r e t i o n in i t s a d m i n i s t r a t i o n .  Secondly,  - 20 -  nothing i s more subject to destructive abuse than that  administrative  discretion.  The remedy, according to Babcock, i s not to take the d i s c r e t i o n away, but rather to so inform and control  i t as to make i t a p o s i t i v e t o o l .  Babcock's  view i s that many of the innovations, dealing with new procedures, techniques, and r e l i a n c e on the " p l a n " are not the key elements. must accept that zoning is e s s e n t i a l l y p o l i t i c a l  Babcock states that one  in nature, and the ideal of  zoning implementing a long term comprehensive plan i s a " v i r t u a l  impossibility".  Therefore, he states that reform should neither overly stress comprehensive planning nor eliminate d i s c r e t i o n , but rather that "when the p r i v a t e sector proposes a change, the d i s c r e t i o n 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 p a r t i c i p a t i o n as p o s s i b l e . "  Babcock concludes by emphasizing his support f o r  procedural f a i r n e s s over the " p l a n " by s a y i n g :  "If the system can assure the free i n t e r p l a y of the diverse i n t e r e s t s and can encourage compromise and accommodation among the diverse i n t e r e s t s , then there i s much less need to be concerned with p l a n s , r e g u l a t i o n s , and procedures that seek to l i m i t a r t i f i c i a l l y the d i s c r e t i o n of those entrusted with the zoning power."22  This section examined d i s c r e t i o n from both the s c h o l a r l y and d i s c r e t i o n a r y zoning process perspective.  F i n d i n g s , in general, are that the  use of administrative d i s c r e t i o n , and d i s c r e t i o n a r y zoning in p a r t i c u l a r , have p o s i t i v e r e s u l t s i f controlling/informing chapter.  it  i s c o n t r o l l e d and informed.  Approaches to  d i s c r e t i o n w i l l be examined in the balance of  this  will  - 21 C.  SUBSTANTIVE BASIS AND PROCEDURAL SAFEGUARDS FOR DISCRETIONARY ZONING DECISION MAKING  The d i s c r e t i o n a r y exercise of development control takes place between the extremes of r i g i d t r a d i t i o n a l tions.  It  zoning schemes and the t o t a l absence of regula-  i s c l e a r that d i s c r e t i o n cannot be t o t a l ; landowners need to have  some reasonably c l e a r idea of what the community i s l i k e l y to accept; and p u b l i c 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 i n c i p l e s associated with natural j u s t i c e , or the duty to act  fairly.  Simply s t a t e d , p r e r e q u i s i t e s f o r the exercise of d i s c r e t i o n include the existence of a substantive planning b a s i s , and the provision of procedural safeguards.  The substantive basis includes two aspects:  a technical basis  (standards), and a broad p o l i c y basis (a comprehensive plan).23  These three p r e r e q u i s i t e s to the exercise of d i s c r e t i o n form the conceptual framework of the t h e s i s and w i l l now be discussed in more d e t a i l .  1.  Substantive Basis  (a)  Technical B a s i s :  Standards  These are predominantly technical standards in the form of development r e g u l a t i o n s , such as bulk and s i t e control r e g u l a t i o n s , including height, FSR, and parking.  Often they include technical c r i t e r i a used to c a l c u l a t e and  - 22 -  measure external e f f e c t s and to develop more f l e x i b i l i t y ( i . e . standards pertaining to noise, t r a f f i c , s u n l i g h t , e t c ) . be part of a given zone, or of general a p p l i c a t i o n .  performance  These standards may  Regulation by performance  allows more f l e x i b i l i t y than does the Euclidean system of regulation by use, bulk and s i t e c o n t r o l .  These standards are generally derived from the f i n d i n g s of an o v e r a l l planning study, and used to prevent ad hoc decision making.  C o d i f i c a t i o n of  established p r i n c i p l e s into development regulations occurs where s p e c i f i c l i m i t s are d e s i r e d , and where d i s c r e t i o n a r y judgment i s to be avoided. regulations are generally non-interpretative  and r i g i d in t h e i r  The  application.  The s p e c i f i c standards are tools to implement broader o b j e c t i v e s , forming the second part of the substantive b a s i s , the comprehensive p l a n .  (b)  The P o l i c y B a s i s :  Comprehensive Plans  This section discusses the merits of comprehensive plans as a guide in the exercise of d i s c r e t i o n a r y zoning.  In general terms, a comprehensive plan sets out community goals and future patterns of development.  Its legal e f f e c t i s l i m i t e d , due p a r t l y  i t s generalized concepts which are usually incapable of precise  to  interpretation.  Early zoning saw the need to coordinate land use controls with long range planning.  Most p r o v i n c i a l enabling l e g i s l a t i o n , and the U.S.A. Standard  Zoning Enabling A c t , now require zoning to be in accordance with a  - 23 comprehensive p l a n .  Notwithstanding the common l e g i s l a t i v e  requirement,  debate continues on the theory v s . p r a c t i c e of the zone/plan r e l a t i o n s h i p .  However, with increasing r e l i a n c e on d i s c r e t i o n a r y controls where f i n a l decisions are made at the time of development, the need f o r a plan that gives some d i r e c t i o n and provides a p o l i c y basis f o r decision making becomes more acute.  Simply, the plan should become the basis against which decisions can  be made.  Heeter discusses the need f o r a change in comprehensive planning away from the r i g i d long range p l a n , i f the plan i s to provide a r e a l basis f o r the administration of d i s c r e t i o n a r y zoning.24  He states that i t seems that long  range planning and a s t a t i c Euclidean system are complementary; thus,  it  appears l o g i c a l that r e j e c t i o n of the s t a t i c control system for a f l e x i b l e / d i s c r e t i o n a r y system would also necessitate r e j e c t i o n of long range planning, at least to some extent.  He acknowledges the need f o r long range  planning f o r c e r t a i n 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 f o r shorter term, narrower, and program oriented planning to work with d i s c r e t i o n a r y control systems:  "Planning that focuses on development of s p e c i f i c programs to solve i n d i v i d u a l , immediate problems in a way that contributes to the long term r e a l i z a t i o n of broader goals and objectives i s planning of a sort to achieve a s i g n i f i c a n t r o l e in the development of c i t i e s . " 2 5  Heyman on the same subject s t a t e s :  - 24 " . . . a physical planning process that seeks to formulate f l e x i b l e , long range objectives based upon problem oriented analysis and in r e l a t i o n to p h y s i c a l , s o c i a l and economic problems and goals, provides a reasoned basis f o r a short term program plans . . . i f we are to f o s t e r higher amenity l e v e 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 p a r t i c u l a r i z e d requirements threaten f a i r n e s s . Detailed and wise comprehensive planning, however, can provide a basis for muting that threat."26  In summary, to adapt to d i s c r e t i o n a r y zoning, the plan should be f l e x i b l e , p o l i c y o r i e n t e d , short term program o r i e n t e d , but yet with broad long term o b j e c t i v e s .  The balance between long term " v i s i o n " and short term  " r e a l i s m " seems necessary in the plan and i s a formula that cannot e a s i l y be defined.  Every s i t u a t i o n i s d i f f e r e n t , but the important point i s that a plan  is necessary to give d i r e c t i o n , some c e r t a i n t y , and to provide a p o l i c y basis f o r d i s c r e t i o n a r y zoning d e c i s i o n s .  Without a broad p o l i c y b a s i s , the use of  standards become questionable, and the d i s c r e t i o n a r y zoning process i s 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 i n g l e s t a t i c document.  2.  Procedural Safeguards  The increasing use of delegated d i s c r e t i o n a r y zoning places additional 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 r n e s s , openness, and r a t i o n a l i t y .  'One must not forget to balance the rules of natural j u s t i c e ( s i m i l a r t o , although more narrow than, due process in the U.S.A.) with the merits and substances of d i s c r e t i o n a r y zoning techniques.  In general, the rules of  - 25 natural j u s t i c e involve two p r i n c i p l e s :  1) p a r t i e s must be given adequate  notice and opportunity to be heard (audi alteram partem); 2) the adjudicator must be d i s i n t e r e s t e d and unbiased (nemo judex in causa sua).27  A fundamental r i g h t in Canada i s the r u l e or supremacy of law.  What i t  means generally i s government by law, not man; o r , the c e r t a i n t y of legal procedures; o r , the absence of untrammelled o f f i c i a l power; o r , the protection of the c i t i z e n against unknown and unpredictable a u t h o r i t y .  Increasing  d i s c r e t i o n a r y powers given to administrative o f f i c i a l s and a consequent narrowing of the r u l e 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 c e r t a i n t y  of law must come to mean an acceptance of procedural f a i r n e s s and good f a i t h rather than advance s p e c i f i c a t i o n of regulations and plans.29  De Smith says that "every authority which i s under a duty to act j u d i c i a l l y , or adjudicate, must follow the procedural requirements of natural justice".  He continues "there i s ample authority than an o b l i g a t i o n to act  j u d i c i a l l y in accordance with natural j u s t i c e may be incurred by a body e x e r c i s i n g d i s c r e t i o n a r y administrative powers which s e r i o u s l y encroach on individual interests".30  i t follows then that the exercise of d i s c r e t i o n a r y  adjudicatory powers by a delegated administration must f o l l o w rules of natural justice.  Some place more emphasis on f a i r process than on standards and plans as safeguards against abuse of d i s c r e t i o n .  Babcock states that  notwithstanding  the importance of an o v e r a l l plan in d i s c r e t i o n a r y zoning, t h a t :  - 26 "we are convinced . . . that the conscientious implementation of mundane procedural safeguards w i l l do more to r a t i o n a l i z e l o c a l l a n d use r e g u l a t i o n than a book f u l l o f . r e v o l u t i o n a r y ideas or a shelf f u l l of m u l t i coloured master plans, J- 1  A l s o , Gerecke, in a study of Canadian zoning, concluded that i t was not technical d e f i c i e n c i e s where the major problems e x i s t e d , but rather the lack of emphasis on procedural innovation and f a i r n e s s . 3 2  The standards of f a i r n e s s in adjudication 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 r e l a t i n g to natural j u s t i c e that must be respected in the d i s c r e t i o n a r y zoning process.  These include provision of n o t i c e ,  opportunity  to be heard, f a i r and impartial decision maker, record of d e c i s i o n , j u d i c i a l review.33  D.  DISCRETIONARY ZONING AND THE COURTS  The nature of d i s c r e t i o n a r y zoning techniques subjects them to a l l e g a t i o n of abuse.  In defining generally the l i m i t s to d i s c r e t i o n , in Phaneauf v.  Corp. du V i l l a g e and -St. Hughes, 61 Que K.B.8.3 the Appeal Court established this principle:  "The l e g i s l a t i o n cannot anticipate every case down to the smallest d e t a i l s . Therefore, in order to be i n t r a 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 " .  Administrative law has l a i d down some general p r i n c i p l e s for the exercise of d i s c r e t i o n a r y powers by administrative bodies.  The delegates may exercise  - 27 d i s c r e t i o n only within the prescribed l i m i t s in the enabling s t a t u t e s . power s h a l l not be used a r b i t r a r i l y  or d i s c r i m i n a t e l y .  s h a l l be considered in e x e r c i s i n g d i s c r e t i o n . not be used for unauthorized purposes.  The  Only relevant matters  The d i s c r e t i o n a r y power s h a l l  The Courts then have concerned them-  selves p r i m a r i l y with a narrow reading of enabling statutes.34  Canadian courts generally do not i n t e r f e r e they f i n d j u r i s d i c t i o n a l  in the planning process unless  or legal d e f e c t s ; e . g . improper delegation, acting  beyond or without a u t h o r i t y ,  u n f a i r treatment.  Laux says that "Courts should  not be second guessing planners, but they should always be a v a i l a b l e to ensure that o f f i c i a l s are not exceeding t h e i r authority".35  The Courts then w i l l  continue to play an important r o l e in j u d i c i a l review to ensure the protection of a l l  involved.  S i m i l a r l y , i n the U . S . A . , the Courts have found l i t t l e in d i s c r e t i o n a r y zoning that renders i t  i n v a l i d , per s e , so long as i t  i s applied f a i r l y and  equally and, i n c r e a s i n g l y , evidence i s presented that the a p p l i c a t i o n of such techniques supports a community p l a n .  Meshenberg reports that the Courts are  i n c r e a s i n g l y supporting d i s c r e t i o n a r y decisions where a d i r e c t r e l a t i o n s h i p to stated community p o l i c i e s e x i s t . 3 6  Reps addresses the p o t e n t i a l for court challenges of d i s c r e t i o n a r y 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 c o n t r o l . The l i t t l e band of r a d i c a l s in 1916 pushed the j u d i c i a l clock f u r t h e r ahead in t h e i r time when they  - 28 introduced comprehensive zoning than we would do in ours by pressing f o r additional d i s c r e t i o n a r y powers".37  In summary, i f the substantive and procedural p r e r e q u i s i t e s f o r d i s c r e t i o n as i d e n t i f i e d in Section C of t h i s chapter are followed c o n s i s t e n t l y 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 i s c r e t i o n a r y zoning w i l l have less chance of success.  E.  SUMMARY  T r a d i t i o n a l Euclidean zoning has survived from i t s inception in the e a r l y 1900's.  Characterized by predetermined regulations and n e g l i g i b l e  administrative d i s c r e t i o n , 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 t u a t i o n s .  The reaction has been a rapid r i s e in the use of d i s c r e t i o n a r y zoning, characterized by considerable delegated administrative authority 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 i s c r e t i o n a r y zoning has a major p o t e n t i a l danger f o r abuse.  From analysis of the l i t e r a t u r e on d i s c r e t i o n and d i s c r e t i o n a r y zoning, a conceptual framework i s established which requires three p r e r e q u i s i t e s f o r the proper exercise of d i s c r e t i o n in the administration of f l e x i b l e zoning techniques.  They are a substantive b a s i s , comprised of 1) technical standards  (regulations),  and 2) broad p o l i c y b a s i s , or comprehensive planning (dynamic,  - 29 -  short term o r i e n t e d ) .  T h i r d l y , the provision of procedural safeguards in the  form of rules of natural j u s t i c e are required to ensure fundamental issues of f a i r n e s s and openness.  These three substantive and procedural preconditions  to the exercise of d i s c r e t i o n , comprise the conceptual framework for the study.  Chapter III  w i l l examine f i v e s p e c i f i c f l e x i b l e / d i s c r e t i o n a r y  techniques  with respect to t h e i r intent and t h e i r r e l a t i o n s h i p to the three p r e r e q u i s i t e s . Chapter IV w i l l examine the C i t y of Vancouver land use control system, which has considerable administrative d i s c r e t i o n , in the s p e c i f i c context of the three p r e r e q u i s i t e s outlined in t h i s chapter.  - 30 Footnotes CHAPTER  II  1.  Michael J . Meshenberg, "The Administration of F l e x i b l e Zoning Techniques". ASPO, Planning Advisory S e r v i c e , Report No. 318, 1975, p. 3.  2.  David Heeter, "Toward a More E f f e c t i v e Land-Use Guidance system", ASPO, Planning Advisory S e r v i c e , Report No. 250, 1969, p. 8.  3.  Michael Goldberg and Peter Horwood, Zoning: Its Costs and Relevance For The 1980s. (Canada: The Fraser I n s t i t u t e , 1980), p. 27.  4.  Rehenhamp Sacks Wells and A s s o c i a t e s , I n c . , ASPO, and David S t o l o 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 C o n t r o l " , in The New Zoning, ed. Norman Marcus and Marilyn Groves (New York: Praeger, 1970), p. 4.  7.  I. Michael Heyman, "Innovative Land Regulation and Comprehensive P l a n n i n g " , 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, e d . , Housing For A l l Under Law (Massachusetts: B a l l i n g e r , 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 Discretion Inherent in Administrative Adjudication" Thesis, Blackstone Law School, Chicago, 1967, p. 2  14.  I b i d . , p. 3.  15.  Ibid.  16.  J e f f r e y L. J o w e l l , Law and Bureaucracy (New York:  17.  Fishman, Op. C i t . , p. 277  18.  Meshenberg, Op. C i t . , p. 7  19.  Ibid.  Dune11 en, 1975).  - 31 20.  I b i d . , p. 8.  21.  C l i f f o r d L. Weaver and Richard F. Babcock, C i t y 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 Public ( U . B . C . , 1979), p. 1X-11.  28.  I b i d . , p, 1X-1.  29.  Zwanette Pereboom, "Discretion and Land Use Decision Made by Planners", Law 254 paper, U.B.C. 1979, p. 3.  30.  S. A. DeSmith, DeSmith's J u d i c i a l Review of Administrative A c t i o n , 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", University 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.  Administrators",  - 32 CHAPTER  III  FLEXIBLE/DISCRETIONARY ZONING - TECHNIQUES  Chapter II examined the increasing use of d i s c r e t i o n a r y zoning techniques, and in p a r t i c u l a r i d e n t i f i e d three variables in the d i s c r e t i o n a r y zoning process which must be properly addressed to minimize abuse of d i s c r e t i o n and to enable p o s i t i v e public b e n e f i t s .  The p r e r e q u i s i t e s to d i s c r e t i o n are:  1)  technical standards, 2) comprehensive p l a n , 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 a s - o f - r i g h t Euclidean zoning.  T r a d i t i o n a l 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 t h e i r tendency to involve some degree of administrative d i s c r e t i o n in the granting of a r i g h t to develop, and because of t h e i r operation within the conventional framework of land use regulation.  A l l techniques are, by themselves, n e u t r a l .  Their success depends on how  they are used - i f the d i s c r e t i o n granted i s abused, then r e s u l t s may be worse than i f no f l e x i b i l i t y e x i s t e d .  On the other hand, i f d i s c r e t i o n is exercised  in a responsible manner, respecting substantive and procedural requirements, then i t s r o l e can be p o s i t i v e .  - 33 -  The extent of, and l i m i t s t o , d i s c r e t i o n in the t r a d i t i o n a l  flexibility  responses ( i . e . variance, rezoning) are d i f f e r e n t from recent f l e x i b l e techniques (PUD, i n c e n t i v e , impact) since the former i s based on Euclidean, pre-determined regulations whereas the T a t t e r ' s foundation i s the broader wait-and-see approach.  This review i s not intended as an in-depth analysis of the performance of each technique, but i s rather a broad overview of the intent of the technique, and i t s r e l a t i o n s h i p to the d i s c r e t i o n a r y p r e r e q u i s i t e s i d e n t i f i e d Chapter  A.  in  II.  T r a d i t i o n a l 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 f e r e n t sections of the community.  regulatory standards f o r  different  As such, i t was anticipated that there would be  instances in which a p a r t i c u l a r zoning r e s t r i c t i o n would impose an unanticipated hardship upon an i n d i v i d u a l property owner.  For t h i s reason,  most zoning enabling l e g i s l a t i o n has granted l o c a l a u t h o r i t i e s a safety v a l v e , c a l l e d a variance to relax the terms of the zoning ordinance in order to provide r e l i e f from "undue hardship or  difficulty".!  The power to grant v a r i a t i o n s , however, i s probably one of the most frequently employed and misunderstood grants of power in zoning enabling  - 34 -  legislation.  2  It  i s a power which has frequently been abused by granting  v a r i a t i o n s , e s p e c i a l l y use v a r i a t i o n s , i n d i s c r i m i n a t e l y without reference to the statutory conditions which q u a l i f y the authority to grant v a r i a t i o n s . Notwithstanding the existence of enabling l e g i s l a t i o n , a major complaint i s that too much d i s c r e t i o n 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 i s being considered and discretion involved.3  Most variance boards are staffed by laymen and act independently. J u d i c i a l review i s 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 f a v o u r i t i s m . 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 introduction of more sophisticated methods of achieving  2.  flexibility.  Rezoning (Spot Zoning)  Spot zoning, or the p r a c t i c e of i n d i v i d u a 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 i n j e c t flexibility.5  However, spot zoning i s often c r i t i c i z e d f o r i t s lack of  i n c l u s i o n in a comprehensive plan and piecemeal approach to planning.  J u d i c i a l and administrative reception to spot zoning in Canada has tended to be more receptive and l i b e r a l than the U.S.A.  The Supreme Court of Canada  - 35 decision in Scarborough v. Bondi appears to recognize that i t necessary to t r e a t land d i f f e r e n t l y ,  i s sometimes  and the precedential e f f e c t of t h i s  decision 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 i n d i v i d u a l i z e d zoning i s "related to something broader and beyond itself".  There must be evidence of " r a t i o n a l i t y "  and " e q u a l i t y " , often  to the " i n accordance with a comprehensive plan" requirement.  linked  7  The decision in spot zoning applications r e s t s generally with the l e g i s l a t i v e body, which i s capable of e x e r c i s i n g considerable d i s c r e t i o n a r y powers.  Depending upon procedural safeguards, and commitment to the compre-  hensive p l a n , i f any, or other c r i t e r i a , the e f f e c t of spot zoning can be significant.  These two t r a d i t i o n a 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 f o r t s of these two devices somewhat less successful.  P o l i c y , instead of being made broadly and g e n e r a l l y , often  fell  to being made on an i n d i v i d u a l , ad hoc basis by the Board of Appeals on one hand ( v a r i a n c e ) , and by the l e g i s l a t i v e body on the other (rezoning). i n d i v i d u a l d i s c r e t i o n a r y decisions occurred in the midst of  Often,  inconsistent  a p p l i c a t i o n of procedural safeguards, and without the benefit of a technical or p o l i c y substantive b a s i s .  Notwithstanding d e f i c i e n c i e s , these two o r i g i n a l  techniques to i n j e c 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 l e x i b l e Techniques  P r i o r 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 l a c e . b i l i t y rested p r i m a r i l y with the variance and rezoning.  Provisions f o r  flexi-  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 o a t i n g zones, incentive zoning, impact zoning, TDR, PUD.  In  these techniques each proposed development may be judged on the basis of  its  i n d i v i d u a l circumstances - use, design, amenities, hours of operation,  traffic,  s e r v i c i n g , e t c . , rather than on the basis of p r o b a b i l i t i e s and d e t a i l e d prestated r e g u l a t i o n s .  Following i s a b r i e f analysis of three f l e x i b l e techniques and t h e i r r e l a t i o n s h i p to the three p r e r e q u i s i t e s f o r d i s c r e t i o n a r y zoning.  1.  Planning Unit Development (PUD)  a)  Description  One of the e a r l i e s t forms of f l e x i b l e zoning, PUD combines elements of zoning and subdivision r e g u l a t i o n s , permitting  large scale developments to be  planned and b u i l t as a u n i t , and allowing greater f l e x i b i l i t y  in s i t i n g  - 37 -  b u i l d i n g s , mixture of land uses, arrangement of open spaces, and the preservat i o n of natural f e a t u r e s . 8  i t s two key elements are the a p p l i c a t i o n of  controls to the e n t i r e development rather than to i n d i v i d u a l p a r c e l s , and the requirement of d i s c r e t i o n a r y review to assure that s i t e designs are consistent with public o b j e c t i v e s .  The PUD i s u s u a l l y included as a d i s t r i c t w i t h i n the zoning ordinance, and implemented a f t e r extensive negotiations through a public rezoning amendment ( e . g . C i t y of Vancouver CD1 zone).  The one feature common to  virtually  a l l PUD ordinances i s the requirement f o r a s i t e plan review involving extensive negotiation and d i s c r e t i o n a r y judgment made by a d m i n i s t r a t o r s , concluding with agreement on a s p e c i f i c development  b)  project.  Relationship to Standards, Comprehensive P l a n , Safeguards  The degree of p r i o r s p e c i f i c a t i o n of standards i s often an issue in the use of the PUD technique.  Neither the extreme of d e t a i l e d standards for  PUD elements nor that of complete f l e x i b i l i t y i s d e s i r e d . d e n s i t y , open space, parking, run o f f , through numerical standards.  all  Some elements ( e . g .  s e r v i c i n g ) can and should be c o n t r o l l e d  Other elements need not be since there are better  and more f l e x i b l e ways to achieve desired r e s u l t s .  Given wide design options,  i t i s e s s e n t i a l that q u a l i f i e d p r o f e s s i o n a l s be involved on both sides and that c l e a r statements of objectives e x i s t .  PUD's o f f e r many opportunities for achieving p o l i c i e s stated in a comprehensive plan - opportunities not a v a i l a b l e or even negated through the  - 38 -  more t r a d i t i o n a l  techniques.  Results such as improved housing design, mixed  use developments, density v a r i e t y , preservation of natural f e a t u r e s , and other public objectives are possible under PUD. Most bylaws require PUD consistency with the comprehensive p l a n .  As with most f l e x i b l e zoning techniques, there are a number of r i s k s and dangers i f the PUD i s misused.  It  i s e s s e n t i a l that strong safeguards be b u i l t  into the process, p a r t i c u l a r l y since development options i n i t i a l l y  2.  are so wide.  Incentive Zoning (Bonus Zoning)  a)  Description  Incentive zoning represents a p o s i t i v e approach to zoning as compared to the more r e s t r i c t i v e , negative t r a d i t i o n a l  approach.  E s s e n t i a l l y , incentive  zoning i s 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 t e r e s t s , but which i t might otherwise be unable to require ( e . g . open space, d i r e c t access to parking, an arcade, p l a z a , construction of public f a c i l i t y ) ,  the developer  is given a bonus, u s u a l l y in the form of permission to b u i l d at a higher density.  Bonus provisions have been u t i l i z e d most frequently in high density  d i s t r i c t s of c e n t r a l c i t i e s ( e . g . New York, San Francisco, Vancouver).  Since developers are u s u a l l y not r e s t r i c t e d 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 i g h t or through a s p e c i a l permit process.  - 39 b)  Relationship to Standards, Comprehensive P l a n , Safeguards  Objectives desired from an incentive zoning approach must be stated c l e a r l y and based on careful study ( i . e . they must follow a p l a n ) .  The  standards (bonus provisions) should be spelled out so a l l p a r t i e s are aware of the l i m i t s , the process, and the c o s t s / b e n e f i t s , and can act accordingly. A r b i t r a r y a p p l i c a t i o n is thereby reduced.  Mary Brooks in "Bonus Provisions in Central C i t y Areas" (1970) four c r i t i c a l positive  outlines  steps in d r a f t i n g a bonus system, that i f omitted, reduces i t s  effect:  1.  E s t a b l i s h the purpose of the bonus system.  2.  Select the amenities desired in the area.  3.  Determine the s p e c 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 p o s i t i v e focus on the elements that are necessary to achieve the desired r e s u l t s . Bonuses and incentive^ have been used r e l a t i v e l y l i t t l e and only to accomplish narrow public purposes.  Their p o t e n t i a l  objectives i s worthy of serious study.  expansion to achieve wider community  - 40 -  3.  Performance Zoning (Impact Zoning)  a)  Description  Performance zoning employs q u a n t i t a t i v e c r i t e r i a for the placement of land uses as compared to the more subjective t r a d i t i o n a l  zoning d i s t r i c t s .  Instead of e s t a b l i s h i n g permitted uses within a d i s t r i c t on the basis of a lengthy l i s t ,  incompatibility  p a r t i c u l a r use.  i s avoided through s p e c i f i c c r i t e r i a for a  It i s zoning by performance not by use.  complies with the standards or i s not allowed. f l e x i b l e while protecting nearby r e s i d e n t s .  The use either  Impact zoning i s highly  It can act as guide to change and  allows f o r increased d i v e r s i t y . i l  Better information gathering and analysis techniques have permitted greater r e l i a n c e 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 allowing  consideration of more variables in the decision making process.  b)  Relationship to Standards, Comprehensive P l a n , Procedural Safeguards  The intent of performance zoning is to replace the t r a d i t i o n a l , use s p e c i f i c a t i o n s with a broad set of numerical standards. new and the standards are at present l i m i t e d .  However, the f i e l d  is  Their most successful a p p l i c a -  t i o n to date has been i n d u s t r i a l performance zoning ( e . g . n o i s e , g l a r e , smoke, traffic).  - 41 A performance zoning system cannot replace the process by which a community sets the p o l i c i e s or objectives that t h e i r land use controls are implementing.  Rather, performance zoning provides s o l i d information  decision making, but decisions must s t i l l process.  for  be made through the established  The advantage of these models i s that they allow communities to  e s t a b l i s h p o l i c e s in a comprehensive plan and determine zoning matters  through  d i s c r e t i o n in a more deliberate and informed manner.12  The negotiating aspect of zoning may be reduced s u b s t a n t i a l l y mainly due to c l e a r l y i d e n t i f i e d guides to decision making.13 objectivity  The administrative  of performance standards is not questioned.  However, the o r i g i n a l  determination of standards involves some degree of value judgment.  Moreover,  the highly sophisticated technology associated with these techniques makes administration 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 i m i t a t i o n s .  However,  they can serve to s i g n i f i c a n t l y contribute 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 q u a l i t y of d i s c r e t i o n a r y d e c i s i o n s .  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 c o n t r o l , a l l oriented toward the "waitand-see" approach.  One must remember that although the techniques offer much  to both the community and developer, through f l e x i b l e provisions allowing  - 42 -  innovation, they are open to abuse in that d i s c r e t i o n a r y powers are used. is c l e a r that there must be boundaries.  C.  It  Total d i s c r e t i o n i s to i n v i t e abuse.  SUMMARY  This chapter applied the t h e o r e t i c a l f i n d i n g s of Chapter II to the consideration of f i v e f l e x i b l e zoning techniques in use today which involve a considerable exercise of d i s c r e t i o n .  Administrative d i s c r e t i o n was n e g l i g i b l e in Euclidean s t y l e zoning as a l l regulation was pre-determined. from the variance:  The f l e x i b i l i t y in that system came f i r s t l y  a granting of r e l i e f from requirements of the bylaw due to  "hardship" - administered by an administrative t r i b u n a l ; and secondly, from spot zoning:  i n d i v i d u a l parcel rezoning having l i t t l e regard to a comprehensive  p l a n , granted by the l e g i s l a t i v e body. flexibility,  These techniques enabled some  but were often done piecemeal, contrary to p o l i c y , and without a  planning b a s i s .  They were used as a band-aid s o l u t i o n , ignoring the more  fundamental problem of the Euclidean system.  A l s o , three recent f l e x i b l e techniques involving the exercise of d i s c r e t i o n were examined - PUD, incentive zoning, impact zoning.  Each technique uses a  "wait and see" approach, o f f e r s considerable f l e x i b i l i t y ,  and can act p o s i t i v e l y  to encourage innovative ways to use land and achieve community goals.  With  the wide d i s c r e t i o n a r y powers in these techniques, i t becomes paramount that such d i s c r e t i o n 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 f o r decision making and including procedural safeguards in i t s process.  - 43 Chapter II established a conceptual framework for the exercise of discretion.  Chapter III  has described f i v e f l e x i b l e techniques  d i s c r e t i o n , and discussed the p o t e n t i a l responses to changing land use needs. judgment i s part of the d e c i s i o n .  use of each tool in providing  flexible  In a l l cases, however, a d i s c r e t i o n a r y  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 and abuse.  involving  arbitrariness  - 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, U n i v e r s i t y of I l l i n o i s , 1971.  2.  I b i d . , p. 49.  3.  Jagdev Singh D h i l l o n , "The Zoning Board of Appeal", Planning Thesis, U . B . C . , Vancouver, 1966, p. 168.  4.  Brian J . P o r t e r , "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 Administration of F l e x i b l e Zoning Techniques", ASPO, Planning Advisory S e r v i c e , 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 A r e a s " , ASPO Planning Advisory S e r v i c e , Report No. 257, 1970, p. 10.  11.  Kent Gerecke, Robert McCrea, et a l , "Toward a New Canadian Zoning", U n i v e r s i t y 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  outlined the evolution of d i s c r e t i o n a r y zoning tech-  niques i n v o l v i n g delegation of administrative d i s c r e t i o n to municipal  officials.  The study i d e n t i f i e d three p r e r e q u i s i t e s for the exercise of d i s c r e t i o n a r y zoning:  a technical basis (regulatory standards) and a p o l i c y basis (compre-  hensive plan) to inform d i s c r e t i o n ; and t h i r d l y , procedural safeguards to prevent the abuse of delegated a u t h o r i t y .  This chapter examines the Vancouver land use control system, and in p a r t i c u l a r the nature/extent of d i s c r e t i o n r e l a t i v e to the three p r e r e q u i s i t e s . Section B reviews the enabling l e g i s l a t i o n contained in the Vancouver Charter. Section C examines the Vancouver d i s c r e t i o n a r y zoning system beginning with a b r i e f h i s t o r y , followed by a review f i r s t l y of Vancouver d i s c r e t i o n a r y 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 i s c r e t i o n a r y zoning system r e l a t i v e to the three p r e r e q u i s i t e s .  The study of d i s c r e t i o n a r y zoning w i l l focus on the l e g i s l a t i o n and approval process associated with development permit review where d i s c r e t i o n a r y powers are e x e r c i s e d .  In f a c t , f i g u r e s for 1980 show that 90% of a l l a p p l i c a -  tions f o r development involve d i s c r e t i o n . 1980, only 137 were for outright u s e s . l  Of a t o t a l of 1638 applications in  - 46 It should be noted that t h i s study i s not an analysis of the performance and r e s u l t s of d i s c r e t i o n a r y zoning, nor of processing e f f i c i e n c y .  Rather,  it  i s a focused examination of the nature/extent of d i s c r e t i o n in the system as of J u l y 1, 1982 and i t s compliance with the conceptual framework presented i n Chapter  B.  II.  PROVINCIAL ENABLING LEGISLATION  This section examines the powers granted to Vancouver, by the Vancouver Charter, in p a r t i c u l a r with respect to the extent/nature of  discretionary  powers in land use c o n t r o 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 ) . for O f f i c i a l Development Plans (ODP).  Sections 561 to 563 are the provisions 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 f o r the C i t y or part thereof.  Section 562 gives Council authority t o , by bylaw,  adopt the Plan as the O f f i c i a l Development Plan. legal a f f e c t of adoption.  It  Section 563 i d e n t i f i e s  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 Section 563 reads:  the  parties.2  - 47 -  Undertakings, Official Development Plan 563.  (1) T h e adoption by C o u n c i l o f a development plan shall not c o m m i t the C o u n c i l to undertake any o f the developments shown on the plan. (2) T h e C o u n c i 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 development plan.  Section 565 grants Council the power to prepare a Zoning Bylaw. not mandatory to do so.  It  is  Subsections a-j of Section 565 prescribe the contents  of a Zoning Bylaw, including regulating uses, b u i l d i n g s , bulk standards and creating zones of no uniform regulations r e q u i r i n g Council approval as to the form of development ( e . g . CD-I).  Section 565A o u t l i n e s additional areas which Council may address by bylaw. Subsection (d) i s important to t h i s study as i t enables Vancouver Council to delegate to any o f f i c i a l / b o a r d wide powers of d i s c r e t i o n r e l a t i n g to zoning matters.  Section 565A(d) reads:  (d) delegating to any official o f the city or to any board c o m p o s e d o f such officials such powers o f discretion relating to z o n i n g matters which to C o u n c i l seem appropriate;,  It  i s t h i s p r o v i s i o n which i s the key to d i s c r e t i o n in Vancouver's land  use control system.  Once the powers have been delegated, the Council has no  j u r i s d i c t i o n t h e r e i n , 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 i g h t by bylaw to p r o h i b i t uses for a v a r i e t y of reasons including public safety and amenity.  (i)  Section 565A(i) reads-:  prohibiting the erection, use or occupancy o f any building or the use or occupancy public  of any land unless due provision is made  safety and amenity, sanitary facilities, water s u p p l y ,  for and  drainage.  With respect to ( i )  it  i s of i n t e r e s t 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)  i s s u f f i c i e n t to give such a u t h o r i t y , and whether subjects such as public amenity or public safety are "zoning matters" as stated i n ( d ) .  In any event,  boards and o f f i c i a l s are in p r a c t i c e acting as though they have these powers.  Provisions for rezoning, p a r t i c u l a r l y procedural safeguards, are included i n Section 566.  Sections 572 and 573 specify the requirements and mandate for the Board of Variance including membership, c r i t e r i a f o r judging appeals ( i . e .  hardship),  and procedural safeguards.  In sum, the C h a r t e r ' s provisions and controls respecting d i s c r e t i o n a r y zoning, and in p a r t i c u l a r development permits, are rather l i m i t e d r e l a t i v e to the three p r e r e q u i s i t e s .  Regarding a technical basis ( r e g u l a t i o n s ) , the  Council ma^ adopt a zoning bylaw, and the contents are broadly defined. Secondly, a p o l i c y basis i s provided in that an O f f i c i a l Development Plan may  - 49 be adopted.  T h i r d l y , procedural safeguards are not s p e c i f i e d with respect to  development permits, except f o r appeals and rezonings.  There are no provisions  f o r appeal or review at a higher level than the l o c a l Board of Variance.  The Council may grant powers of d i s c r e t i o n 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 i s c r e t i o n a r y powers to boards and officials.  Such d i s c r e t i o n a r y authority i s l i m i t e d only by the requirement to  comply with any ODP. The Charter's control over, and requirements of, Vancouver are l i m i t e d in terms of statutory p r e s c r i p t i o n of required substantive c r i t e r i a or administrative procedures.  Vancouver then has considerable freedom  of self-determination in zoning matters.  C.  VANCOUVER LEGISLATION - Discretionary Zoning  1.  Introduction  In 1974, the C i t y of Vancouver made a major change in t h e i r system of land use c o n t r o l , opting f o r a more f l e x i b l e system involving increased d i s c r e t i o n by o f f i c i a l s .  This was decided after a lengthy debate and in  response to complaints s i m i l a r to those outlined in Chapter II bylaws hamper c r e a t i v i t y ;  lack of public involvement, e t c . ) .  (i.e.  rigid  The former  system was l a r g e l y s e l f - e x e c u t i n g with pre-stated regulations and minimal discretion.  - 50 -  The new system i s a mixture of f i x e d c o n t r o l s , f l e x i b l e guidelines and p o l i c y statements/plans.  It allows the C i t y more d i s c r e t i o n and enables more  d e c i s i o n making at the time of development.  The objective of the "new" zoning  has been described as "neighborliness" with sunlight p r e s e r v a t i o n , view p r o t e c t i o n , topographic adaption, s o c i a l / r e c r e a t i o n amenities, s a f e t y ,  all  deemed to be part of t h i s neighbourliness.3  Total d i s c r e t i o n a r y zoning ( i . e . a l l development at the d i s c r e t i o n of the C i t y ) i s used in a large portion of the C i t y - in p a r t i c u l a r  in areas under-  going redevelopment pressures, and where public response i s most c r u c i a l and decision making more complex.  Discretionary zoning means that a l l development  i s at the d i s c r e t i o n of the approving authority - t e c h n i c a l l y nothing i s permitted by r i g h t and a l l uses and development regulations are d i s c r e t i o n a r y . It  i s control by permission, not by r e g u l a t i o n .  This does not mean that the  zoning provisions are ignored; but r a t h e r , that c e r t a i n f l e x i b i l i t y e x i s t s in administering the p r o v i s i o n s , as long as public objectives are not unduly compromised.  Areas now under such zoning include Downtown (DD), West End (WED),  False Creek (FCCDD), Central Waterfront Development Plans.  (CWD), and are a l l covered by O f f i c i a l  A l l development in these areas i s c o n d i t i o n a l , and  d i s c r e t i o n may be exercised within the prescribed l i m i t s of the enabling legislation.  This w i l l be discussed in more d e t a i l in part 2 of t h i s s e c t i o n .  A part t r a d i t i o n a l , part d i s c r e t i o n a r y approach (hereafter traditional)  called  i s used i n the balance of the C i t y where areas are, f o r the most  p a r t , stable and e s t a b l i s h e d .  Each zone includes a mixture of outright uses  (no d i s c r e t i o n ) and conditional uses ( d i s c r e t i o n a r y ) .  Development regulations  - 51 are r i g i d f o r o u t r i g h t uses, and d i s c r e t i o n a r y for c o n d i t i o n a l uses (again, s u f f i c i e n t j u s t i f i c a t i o n must be presented to r e l a x the r e g u l a t i o n s ) , Figures 1 and 2 ) .  (see  - 52 -  LEGEND  FIGURE 1  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 f o r land use in the C i t y .  controlling  Its s t r u c t u r e , not unlike most North American bylaws,  includes sections on d e f i n i t i o n s , a d m i n i s t r a t i o n , enforcement, zoning d i s t r i c t s , and r e g u l a t i o n s .  Each zone has an intent c l a u s e , followed by o u t r i g h t approval  uses ( t r a d i t i o n a l zoned areas o n l y ) , c o n d i t i o n a l approval uses, development regulations ( e . g . Floor S i t e Ratio (FSR), yards) and in some cases s p e c i f i c provisions for the r e l a x a t i o n of r e g u l a t i o n s .  An applicant requires an  approved development permit p r i o r to development.  The approving authority f o r  development permits i s either the Development Permit Board (DPB) or Director of Planning (D of P ) , and in cases of appeal the Board of Variance (B of V ) .  C o u n c i l ' s involvement i s on a broad p o l i c y basis and i t acts as approving authority f o r ODPs, g u i d e l i n e s , and p o l i c i e s which provide support f o r the d i s c r e t i o n a r y 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 i s minimal, as i t has been delegated to o f f i c i a l s / b o a r d s .  There are some notable exceptions  which have occurred as bylaw changes over time have provided additional safeguards with respect to c e r t a i n d i s c r e t i o n a r y powers exercised by the delegated a u t h o r i t y .  For example, Council must grant p r i o r approval to f l o o 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 o o r space in the FM-1 D i s t r i c t ; ^ and to r e l a x regulations f o r apartment housing for e l d e r 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 s e n s i t i v e and  - 55 c o n t r o v e r s i a l a p p l i c a t i o n s under consideration by the DPB. The decision making on the a p p l i c a t i o n however rests with the delegated body, and not Council.  In general, C o u n c i l ' s involvement remains in broad p o l i c y formulation  and leaves the ongoing development permit processing to delegated o f f i c i a l s and boards.  The following review of ZDB l e g i s l a t i o n focuses on d i s c r e t i o n and development permits.  Part (a) reviews the basic administrative provisions of  the ZDB, and i d e n t i f i e s d i s c r e t i o n a r y powers.  Parts (b) and (c) examines  Vancouver's t r a d i t i o n a l and d i s c r e t i o n a r y zoning systems, r e s p e c t i v e l y .  (a)  Description of L e g i s l a t i o n - Discretionary Zoning Administration  Section 3 of the Zoning Bylaw i s the municipally adopted enabling l e g i s l a t i o n for defining d i s c r e t i o n a r y powers in administering zoning and development permits. It  Section 3 (Appendix II)  has evolved piecemeal over time.  is somewhat cumbersome and requires considerable i n t e r p r e t a t i o n and cross  reference to other p r o v i s i o n s .  Decision making on development permits rests with two a u t h o r i t i e s , the D of P and the DPB (the B of V i s 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 i s the head o f f i c i a l of the Planning Department.  The DPB i s an  administrative board composed of three voting members (senior C i t y o f f i c i a l s  -  - 56 D of P (chairman), Director of Social S e r v i c e s , C i t y Engineer) and an Advisory Panel of s i x c i t i z e n members.  The D of P and DPB exercise powers on behalf of  Council v i a 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 i m i t s of t h e i r respective powers are broadly outlined i n Section 3 (with additional provisions a f f e c t i n g the DPB contained in the DPB Bylaw, to be discussed l a t e r ) . guide d i s c r e t i o n a r y powers.  The zoning d i s t r i c t s themselves may f u r t h e r  However, the source of power l i e s in Section 3 of  the Zoning Bylaw.  Section 3.3.1 recognizes d i s c r e t i o n and gives authority to the D of P/DPB to exercise d i s c r e t i o n i n approving development permits with or without condit i o n s , or refusing them.  Discretion e x i s t s to refuse a conditional 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 o u t l i n i n g the authority of the DPB and D of P are Section 3 . 2 . 4 , and 3.3.3 and 3.3.4 r e s p e c t i v e l y .  - 57 -  The DPB i n 3.2.4 i s granted power to relax provisions of the Bylaw (Zoning Bylaw) i n e x e r c i s i n g d i s c r e t i o n .  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 e g i s l a t i o n allows r e l a x a t i o n of the provisions of the Zoning Bylaw, i t provides c l e a r d i r e c t i o n to the Board to have regard f o r c e r t a i n c r i t e r i a i n doing s o ; s p e c i f i c a l l y , "have regard t o " the intent of the Bylaw, regulations and p o l i c i e s of any ODP, and other Council p o l i c i e s .  "Have regard  t o " requires c o n s i d e r a t i o n , d i f f e r e n t from mandatory "comply w i t h " .  The  j u r i s d i c t i o n of the DPB i s a l l conditional uses, (except as s p e c i f i e d in Section 3 . 3 . 3 . below).  Section 3.3.3 describes the key authority of the D of P in dealing with development permits.  The l e g i s l a t i o n allows the D of P to process a l l  c o n d i t i o n a l uses not considered by the Board ( i . e . those determined by s t a f f to be r e l a t i v e l y non-contentious).  In so doing, the l e g i s l a t i o n authorizes  the D of P to exercise h i s d i s c r e t i o n i n considering development, notwithstanding provisions of the Zoning Bylaw.  However, s i m i l a r to the DPB, l i m i t a -  t i o n s on d i s c r e t i o n are contained i n Section 3.3.4 r e q u i r i n g the D of P not to exercise h i s d i s c r e t i o n i f c e r t a i n substantive issues have not i n h i s opinion been complied w i t h .  Sections 3 . 3 . 3 and 3.3.4 read:  - 58 -  3.3.3  3.3.4  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 tonsent of the Development Permit Board would otherwise be required. 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 established f o r p r a c t i c a l reasons to allow the D of P to d i r e c 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 l o c a t i o n of time and resources between them in the review of a p p l i c a t i o n s . and D of P operate on a c i t y wide basis ( j u r i s d i c t i o n from the central c i t y to the entire c i t y in 1980).  Both the DPB  of the DPB was expanded  This w i l l be discussed  f u r t h e r in Section D - Process.  The broad powers of the DPB and D of P are outlined in Sections 3.2.4 and 3.3.3/3.3.4.  However, Section 3 f u r t h e r prescribes more s p e c i f i c provisions  for defining and guiding d i s c r e t i o n a r y 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 provisions respecting r e l a t i v e l y minor technical matters (such as additions to b u i l d i n g s , setbacks, screening, b a l c o n i e s ) .  Moreover, Section 3.2.3 requires that the D  of P be s a t i s f i e d that any property owner l i k e l y to be adversely affected by such r e l a x a t i o n 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 r e l a x provisions dealing with heritage s i t e s where l i t e r a l  enforcement would not allow r e s t o r a -  t i o n of s i t e s , again subject to c e r t a i n substantive preconditions, and n o t i f i cation requirements.  Furthermore, considerable power i s granted to the DPB/D of P in 3.3.2 whereby any a p p l i c a t i o n could be refused notwithstanding compliance with the Zoning Bylaw, i f any of s i x conditions 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)  A n a l y s i s of L e g i s l a t i o n - D i s c r e t i o n a r y Zoning Administration  Sections 3.2.4 and 3.3.3/3.3.4 are the key provisions in o u t l i n i n g the d i s c r e t i o n a r y powers of the DPB and D of P.  Considerable q u a l i f i e d d i s c r e t i o n i s granted to both a u t h o r i t i e s in that they can r e l a x bylaw p r o v i s i o n s .  Section 3.2.4 requires the DPB to "have  regard t o " Zoning Bylaw i n t e n t , r e g u l a t i o n s , and p o l i c i e s of any ODP, and a l l  - 61 Council p o l i c i e s .  The D of P, in considering c o n d i t i o n a l uses not handled by  the DPB v i a 3 . 3 . 3 / 3 . 3 . 4 , i s to "not exercise d i s c r e t i o n 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  n e c e s s i t y , i n t e r p r e t i v e , judgmental, and d i f f i c u l t to determine  (otherwise  they would be q u a n t i f i e d and provided as regulations in each zone).  Nonethe-  l e s s , they provide a substantive foundation for his d e c i s i o n s .  The other provisions of Section 3 address s p e c i f i c subject areas where d i s c r e t i o n a r y power i s f u r t h e r 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 a p p l i c a t i o n s  notwithstanding  compliance with the bylaw, i f any of 6 conditions ( a to f ) e x i s t .  This  p r o v i s i o n reserves the r i g h t f o r the C i t y to "change the rules in the middle of the game" for reasons of public i n t e r e s t . not be abused.  However, t h i s prerogative must  Although r a r e l y used in p r a c t i c e , p o t e n t i a l e x i s t s here f o r  abuse and uncertainty given the wide uncontrolled d i s c r e t i o n .  For example,  such provisions could be used to refuse an outright 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 r a t i o n a l e .  A l s o , the range  of e l i g i b l e s i t u a t i o n s i s broad and highly subjective ( e . g . how i s public safety or public amenity defined). can be appealed to the B of V.  One safeguard here i s that any decision  However, in order to reduce uncertainty,  the  provisions should be made more s p e c i f i c , and at the l e a s t , provide f o r mandatory n o t i f i c a t i o n / h e a r i n g to reduce the p o t e n t i a l for misuse.  In sum, the key provisions of 3.2.4 and 3 . 3 . 3 / 3 . 3 . 4 provide wide d i s c r e t i o n a r y powers to the DPB and D of P.  The a u t h o r i t i e s are to "have  regard to" and "not exercise d i s c r e t i o n where", in the context of s p e c i f i e d  - 62 planning c r i t e r i a .  Of course, they must exercise considerable judgment  determining compliance with these i n t e r p r e t a t i v e  Such interpretation/judgment  in  criteria.  i s a large part of d i s c r e t i o n a r y zoning.  The l e g i s l a t i o n in Section 3 at l e a s t , despite l i m i t a t i o n s , recognizes the need f o r , and provides a substantive basis to inform d i s c r e t i o n a r y d e c i s i o n s . 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 provisions in a competent and professional manner.  Parts (c) and (d) w i l l examine the l e g i s l a t i o n in T r a d i t i o n a l and Discretionary zoned areas, r e s p e c t i v e l y , to discern the extent and nature of d i s c r e t i o n in these two areas.  (c)  Discretion in T r a d i t i o n a l Zoned Areas  This part reviews the t r a d i t i o n a l  zoned areas to discern the  extent/nature of d i s c r e t i o n and i t s r e l a t i o n s h i p to the three p r e r e q u i s i t e s . In these areas, d i s c r e t i o n e x i s t s p r i m a r i l y with respect to conditional uses. Outright uses are permitted as a r i g h t .  To examine d i s c r e t i o n in t r a d i t i o n a l of a t y p i c a l d i s t r i c t ,  zoned areas, a review w i l l be done  the RS-1 One Family Dwelling D i s t r i c t .  generally representative of the other 30 or so zones. i s provided in Appendix  This zone i s  (The RS-1 Zone Schedule  III).  o  - 63 The intent clause i s l i s t e d f i r s t , i d e n t i f y i n g the purpose of the zone. Second i s o u t r i g h t approval uses where no d i s c r e t i o n may be exercised.6 Section 3 l i s t s the c o n d i t i o n a l approval uses allowing the d i s c r e t i o n of the DPB, or D of P ( v i a 3 . 3 . 3 ) .  A standard provision i n a l l t r a d i t i o n a l zones  preceeds the l i s t of c o n d i t i o n a l uses, which o u t l i n e s the basic limitations/considerations in exercising discretion.  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 recommendations 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.  T e c h n i c a l l y , the DPB i s required to decide upon a l l c o n d i t i o n a l uses. However, as o u t l i n e d e a r l i e r , the D of P v i a Section 3 . 3 . 3 of the Zoning Bylaw can act in place of the DPB, i f the matter i s deemed by s t a f f to be noncontentious.  In any event, e i t h e r a u t h o r i t y can relax any p r o v i s i o n of the Bylaw  subject to the general conditions of 3.2.4, and 3.3.3 and 3.3.4, and also can impose such conditions and a d d i t i o n a l regulations as i t may decide as stated in 3.1 of RS-1.  - 64 Section 3.1(a) of RS-1 requires consideration of guidelines approved by C o u n c i l , and i s s i m i l a r 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 authority i s then required to consider, but not  n e c e s s a r i l y comply with these p r o v i s i o n s .  However, i t  is important to note that p o l i c i e s and guidelines do not  exist for traditional  zoned areas.  Only in areas undergoing redevelopment  pressures and/or having unique i s s u e s , such as K i t s i l a n o and Fairview Slopes, are guidelines in p l a c e . traditional  Consequently, the exercise of d i s c r e t i o n in many  zoned areas lacks a substantive basis in terms of p o l i c y and t h i s  could lead to a r b i t r a r y and ad hoc decision making.  This i s c r i t i c a l , given  the wide d i s c r e t i o n a r y powers for conditional uses, and the extensive and varied uses l i s t e d as conditional uses in t r a d i t i o n a l  Section 3.1(b) requires n o t i f i c a t i o n deemed necessary.  zoned areas.  of adjacent owners and residents as  This i s a procedural safeguard to open the system to the  public and to enable neighbourhood views to be considered.  However, t h i s  provision i s o p t i o n a l , and as such, without f u r t h e r q u a l i f i c a t i o n , could r e s u l t in no n o t i f i c a t i o n  and no neighbourhood input.  This s i t u a t i o n in a  system with considerable d i s c r e t i o n a r y powers a l l o c a t e d to o f f i c i a l s , represents a r i s k and could r e s u l t in uncertainty and a r b i t r a r y decision making.  Section 4 Regulations l i s t s development r e g u l a t i o n s .  Authority  is  granted to relax the regulations f o r conditional uses (Section 3.2.4 and 3.3.3  - 65 -  of Zoning Bylaw), and include such conditions or additional regulations as i t may decide as stated in Section 3.1 of RS-1. Regulations for o u t r i g h t uses cannot be r e l a x e d .  In sum, although considerable d i s c r e t i o n e x i s t s in the l e g i s l a t i o n with respect to the t r a d i t i o n a l  zoned areas, such power i s , c o n t r o l led somewhat by  l e g i s l a t i o n which requires consideration of s p e c i f i e d c r i t e r i a , and provides f o r optional n o t i f i c a t i o n .  Considerable r e s p o n s i b i l i t y i s placed on the  process followed by the approving a u t h o r i t y .  Some d e f i c i e n c i e s e x i s t , and  w i l l be f u r t h e r examined l a t e r in the chapter.  (d)  Discretion in Discretionary 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 i s c r e t i o n a r y zoned areas - t e c h n i c a l l y , nothing i s permitted o u t r i g h t .  In  each area, Council has adopted by bylaw, a Plan to regulate development w i t h i n the boundaries of these areas.  Included in the Plan is a combination of  r e g u l a t i o n s , p o l i c i e s , and guidelines a l l involving considerable d i s c r e t i o n . The Plan then functions in part as a regulatory zoning bylaw, and in part as broad p o l i c y statement.  A key point to remember here with respect to the l i m i t s on d i s c r e t i o n i s that the enabling p r o v i n c i a l l e g i s l a t i o n requires compliance with any ODP. Therefore, any exercise of d i s c r e t i o n beyond the Plan l i m 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 i s c r e t i o n and r e l a t i o n s h i p to the study's three v a r i a b l e s .  (See Plan i n Appendix IV).  Council approved the ODP f o r Downtown by Bylaw 4912 i n 1975, as provided f o r in Section 653 of the Charter.  The Plan i s not part of the Zoning Bylaw.  The intent of the ODP Bylaw i s to regulate the development of Downtown Vancouver, and in p a r t i c u l a r t o :  (1) T o improve the general environment of the D o w n t o w n District as an attractive place in which to live, w o r k , s h o p , and visit. (2) T o ensure that all buildings and developments in the Downtown District meet the highest standards of design and amenity f o r the benefit o f all users of the D o w n t o w n . (3) T o provide for flexibility and creativity in the preparation of development proposals. (4) T o encourage more people to live within the D o w n t o w n District. (5) T o support the objectives of the Greater Vancouver Regional District as referred to in " T h e Livable Region 1 9 7 6 / 1 9 8 6 " as issued March 1975, to decentralize some office e m p l o y m e n t to other parts of Greater Vancouver by discouraging office developments considered inappropriate in the D o w n t o w n District. (6) T o improve transportation D o w n t o w n by encouraging greater transit usage, discouraging 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 f o r the preparation of development proposals.  Permits are processed in accordance with the Zoning Bylaw.  The ODP preamble states that "consideration of any development permit w i l l be based upon the regulations and requirements of the ODP and upon such guidelines as Council may determine".  It i s emphasized that "guidelines  approved by Council form an i n t e g r a 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 i n 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 s e 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 o n l y up t o 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  categories  o f use which may be permitted, "subject to such c o n d i t i o n s and r e g u l a t i o n s as may be p r e s c r i b e d by the DPB". Use c a t e g o 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 r e q u i r e r e t a i l uses in c e r t a i n areas, and t o encourage same i n others.  However, the c o n d i t i o n s  and design are at the d i s c r e t i o n o f DPB.  Section 3 Density i s regulated by F l o o r Space Ratio (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.  A maximum FSR  The maximum i s not given  - 68 as a r i g h t .  In order to achieve the maximum, the proposal must s a t i s f y the  d i s c r e t i o n a r y judgments of the DPB l a r g e l y based on Council approved guidelines and p o l i c i e s .  There i s no "guaranteed" minimum.  Section 4 Height of Buildings s p e c i f i e s a maximum for 4 d i f f e r e n t height areas, except that the DPB, in i t s d i s c r e t i o n , can permit buildings of excess height, subject to c e r t a i n technical c r i t e r i a as outlined in the g u i d e l i n e s , up to a maximum of 450 f e e t .  Section 5 Parking and Loading i d e n t i f i e s c e r t a i n maximum parking r e q u i r e ments, given the objective of reducing t r a f f i c congestion and commuter parking. Some d i s c r e t i o n is granted the DPB, r e l a t i v e 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 S o c i a l and Recreational Amenities and F a c i l i t i e s i s provided in order to ensure these amenities are included f o r the enjoyment of downtown residents and employees.  It i s made up of two p a r t s ; f i r s t , i s a l i s t  a n c i l l a r y f a c i l i t i e s (saunas, day care, tennis courts) which, i f w i l l not be included as part of FSR.  of  provided,  Secondly, bonuses can be granted in the  form of increased FSR i f "any p u b l i c , s o c i a l , or recreation 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 p r i o r Council approval).  C r i t e r i a are outlined to guide decisions of the DPB.  No l i m i t s on  the amount of the bonus is s t a t e d , but an additional and unique safeguard here i s that the decision must receive p r i o r Council approval.  - 69  -  In addition to ODP r i g i d regulations (within which d i s c r e t i o n cannot exceed the s t i p u l a t e d requirements - e . g . height, parking, FSR (except  if  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 r e s o l u t i o n for the DD area to act as support documents in the exercise of d i s c r e t i o n .  The Guidelines are t h r e e f o l d :  1.  Planning P o l i c i e s - broad p o l i c y statements dealing with four s u b j e c t s : growth; land use and d e n s i t y ; movement; urban form.  2.  Design Guidelines - to form the basis f o r development proposals and to replace the r i g i d yard requirements; s i x subjects are addressed: public open space; s o c i a l and c u l t u r a l ; view; environment; physical design; parking.  3.  Character Areas - 13 d i f f e r e n t areas i n the Downtown which h i g h l i g h t the present and future desired character; with recommendations.  These i n t e r p r e t a t i v e  " G u i d e l i n e s " were prepared in recognition of the  need f o r a substantive basis for decision making where considerable d i s c r e t i o n a r y power e x i s t s .  3.  Other L e g i s l a t i o n  In addition to the ZDB and ODPs, there i s additional l e g i s l a t i o n approved by Council which i s an i n t e g r a l part of d i s c r e t i o n a r y zoning in Vancouver. These i n c l u d e :  - 70 (a)  P o l i c i e s , G u i d e l i n e s , Plans  Approximately 50 documents under various names such as p o l i c i e s , g u i d e l i n e s , and plans have been adopted by Council by r e s o l u t i o n or bylaw since 1975 p r i m a r i l y to inform the p u b l i c , development industry, planning s t a f f , and approving a u t h o r i t i e s , on c e r t a i n planning goals and o b j e c t i v e s , and the ways and means of achieving them. in Appendix V ) .  (A complete l i s t of these documents i s included  Their purpose is to act as a support in the negotiation and  decision making process to reduce uncertainty and a r b i t r a r i n e s s .  The  importance of a substantive basis in d i s c r e t i o n a r y 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 i s t h e i r lack of consistency, currency, and t h e i r piecemeal a p p l i c a t i o n .  clarity,  The l i n k a g e / d i f f e r e n c e  among p o l i c y , g u i d e l i n e s , and regulations i s often not c l e a r , and format not uniform making i n t e r p r e t a t i o n  and a p p l i c a t i o n d i f f i c u l t .  may not be so much with substance per se, as i t  The d i f f i c u l t y here  i s with organization and  structure.7  More fundamentally, what is lacking is an o v e r a l l development strategy or comprehensive plan that e x p l i c i t l y states Vancouver's goals and o b j e c t i v e s . E x i s t i n g now i s only a scattered and i m p l i c i t and on varied p l a n s / p o l i c i e s / g u i d e l i n e s .  strategy based on assumptions  An o v e r a l l comprehensive plan f o r  the e n t i r e C i t y would provide a consolidated and c l e a r e r consensus, would balance a l l i n t e r e s t s , and serve as integrated guide f o r decision making.  - 71 (b)  Development Permit Board and Advisory Panel Bylaw 4876  This Bylaw (Appendix VI) o u t l i n e s the duties and membership of the Board and Panel.  The Bylaw content is r e s t r i c t e d to basic organizational  issues.  However, some safeguards to minimize abuse and provide f o r openness are included; for example, there i s a requirement to hear any representations, receive submissions, and decisions are to be made in p u b l i c . requirement for n o t i f i c a t i o n  is provided in the bylaw.  However, no  Furthermore, an  Advisory Panel of 6 c i t i z e n members i s created by t h i s bylaw to attend a l l meetings and make submissions to the Board p r i o r to a l l d e c i s i o n s .  These  safeguards are in addition to the substantive requirements l i s t e d in Section 3.2.4 of the Zoning Bylaw.  4.  Summary of Vancouver L e g i s l a t i o n - Discretion  Vancouver's l e g i s l a t i o n grants the approving a u t h o r i t y , the D of P and DPB, considerable d i s c r e t i o n a r y powers.  Their powers are l i m i t e d somewhat by  requirements to consider the intent of zones and r e g u l a t i o n s , p o l i c i e s , and guidelines.  Moreover, the l e g i s l a t i o n requires n o t i f i c a t i o n  as deemed  necessary by the approving a u t h o r i t y .  The ODP areas have an additional l i m i t on the exercise of d i s c r e t i o n , in that i t cannot be exercised so as to contravene the Plan requirements. Relating back to the conceptual framework in Chapter I I ,  three p r e r e q u i s i t e s  - 72 -  to the exercise of d i s c r e t i o n were o u t l i n e d .  Vancouver l e g i s l a t i o n appears to  at least recognize the need to inform and safeguard d i s c r e t i o n .  Generally,  the l e g i s l a t i o n responds to the three p r e r e q u i s i t e s as f o l l o w s :  1.  Technical Standards:  Regulations  Development regulations and standards r e l a t i n g to b u i l d i n g bulk and yards are provided in a l l zones.  Authority e x i s t s in the l e g i s l a t i o n for the D of  P/DPB to relax these provisions as outlined in Section 3 of the Zoning Bylaw, notwithstanding  the s p e c i f i c r e g u l a t i o n .  However, such r e l a x a t i o n s h a l l occur  only after c e r t a i n i n t e r p r e t i v e preconditions are s a t i s f i e d as s p e c i f i e d in Section 3.  Further, the provisions in ODPs and in conditional use sections of  the ZB, grant power to impose such conditions and additional regulations as deemed necessary.  However, in no circumstance can any r e l a x a t i o n and exercise  of d i s c r e t i o n contravene the requirements of any ODP.  Outright approval uses are s p e c i f i e d in t r a d i t i o n a l  zoning areas.  Their  regulations 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 a u t h o r i t y e x i s t s to r e l a x .  Conditional approval uses include a l l uses in ODP areas and those l i s t e d as such in t r a d i t i o n a l  zoned areas.  The D of P/DPB has authority to exercise  d i s c r e t i o n to relax the zoning p r o v i s i o n s , up to maximum prescribed in any ODP.  Again, guidance to the exercise of d i s c r e t i o n i s provided in Section 3  of the Zoning Bylaw.  - 73 2.  Policy Basis:  Comprehensive Plan  A substantive p o l i c y basis i s provided in various forms ranging from guidelines to p o l i c i e s to plans o u t l i n i n g broad planning o b j e c t i v e s . apply in a l l ODP areas and in scattered parts of the t r a d i t i o n a l  These  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 i s c r e t i o n a r y judgment.  However, a  C i t y wide comprehensive plan giving ongoing d i r e c t i o n for future growth does not e x i s t .  3.  Procedural Safeguards  Provision for n o t i f i c a t i o n where "deemed appropriate" e x i s t s through-out the l e g i s l a t i o n .  L e g i s l a t i v e provisions are more extensive f o r the DPB v i a  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. provisions address issues of b i a s / p a r t i a l i t y , justice.  No express  the second component of natural  However, DPB meetings are p u b l i c , and having an Advisory Panel  provides some public s c r u t i n y .  Moreover, there always e x i s t s the  to appeal the decision of the D of P or DPB to the B of V. i s a f i n a l option open for j u d i c i a l  opportunity  Furthermore, there  review.  A f u r t h e r safeguard, a l b e i t s u b t l e , i s that the l e g i s l a t i v e body i s the master and can remove the delegated approving authority at any time. master-servant r e l a t i o n s h i p must be recognized.  Such  - 74 -  In sum, the Vancouver l e g i s l a t i o n provides wide d i s c r e t i o n a r y  authority  to planning o f f i c i a l s and boards.. Within prescribed ODP l i m i t s and excluding outright uses in t r a d i t i o n a l zoned areas, the D of P/DPB can r e l a x provisions where i t w i l l not, in t h e i r judgment, contravene the substantive/procedural l i m i t to t h e i r d i s c r e t i o n as outlined in the l e g i s l a t i o n , p a r t i c u l a r l y Section 3 of the Zoning Bylaw.  Further, they have authority to include such  conditions and a d d i t i o n a l regulations on c o n d i t i o n a l uses as they may decide. Moreover, the l e g i s l a t i o n grants power to refuse an a p p l i c a t i o n that complies with the r e g u l a t i o n s .  T e c h n i c a l l y speaking, there are no development r i g h t s  f o r conditional approval uses.  Notwithstanding that the l e g i s l a t i o n requires  s p e c i f i e d j u s t i f i c a t i o n to r e l a x p r o v i s i o n s , and to exercise d i s c r e t i o n , the bottom l i n e i s that the l e g i s l a t i o n provides considerable d i s c r e t i o n a r y powers to planning o f f i c i a l s and boards.8  The Vancouver system with wide d i s c r e t i o n a r y authority places pressure on the process and the planning s t a f f in working with the l e g i s l a t i o n to achieve positive results.  Section D w i l l examine issues r e l a t i v e to the Process.  - 75 D.  VANCOUVER PROCESS - Discretionary Zoning  1.  Introduction  D i s c r e t i o n a r y zoning places considerable pressure on the process i t s e l f as was outlined in Chapter II.  For example, a d d i t i o n a l inputs are necessary  to properly address judgments and to provide for extensive negotiation compared to the s e l f - e x e c u t i n g Euclidean Zoning.  This Section examines the development permit process with the aid of a flow chart.  An analysis of the process r e l a t i v e to the l e g i s l a t i o n and three  p r e r e q u i s i t e s is provided.  Information was gathered l a r g e l y from C i t y f i l e s and resources, attending DPB meetings, and extensive interviews with technical and professional C i t y planning s t a f f .  2.  Development Permit Process  (a)  Flow Chart  Figure 3 i s the stated development permit process/Flow Chart which explains the e n t i r e process s t a r t i n g with p r e - a p p l i c a t i o n i n q u i r y ,  through  n e g o t i a t i o n , 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 EHOOIHY  DEVELOPMENT PERMIT APPLICATION N 'PRELIMINARY r~VI OR COMPLETE i  ni  ft  JE  3  ir  PLAN CHECKERS AND DEVELOPMENT PLANNERS PROCESS D P A SITE VISIT HISTORY. LIAISON WITH OTHER DEPARTMENTS AND CO-ORDINATION WITH APPLICANT  7TT\  REFERRAL TO: • PLANNING • ENGINEERING • BUILDING  SOCIAL PLANNING  DIRECTOR OF PLANNING  STAFF COMMITTEE • PLANNING • ENGINEERING • SOCIAL PLANNING • BUILDING • HEALTH  3L  DEVELOPMENT PERMIT BOARD URBAN DESIGN PANEL  LOCAL AREA PLANNING COMMITTEE  REVISIONS IF APPROVAL OR '—N CONDITIONAL REFUSAL I — ] / \ APPROVAL  K I V  )  PERMIT ISSUED  7^ BOARD OF VARIANCE  ADVERTISEMENT  CHECK WITH CITY COUNCIL  Source: E i g h t Y e a r s A f t e r by C i t y o f Vancouver P l a n n i n g Department; O c t o b e r , 1981  - 77 The process i s l a r g e l y s e 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)  Description of Process  The D of P and DPB are the key f i g u r e s since they are the f i n a l decision makers.  However, t h e i r decision i s preceeded by considerable administrative  activity.  Applications for o u t r i g h t approval uses (non d i s c r e t i o n a r y ) are handled according to the Bylaw and are not considered f u r t h e r in t h i s study.  If a p p l i c a t i o n i s for a conditional approval use, than a senior planning s t a f f member determines i f the applicant should go before the D of P or DPB for d e c i s i o n , as provided for in Section 3.3.3 of the Zoning Bylaw.  This s t a f f determination (to r e f e r to e i t h e r the D or P or DPB f o r decision) i s not based on l e g i s l a t i v e d i r e c t i o n but i s an i n t e r n a l administrat i v e arrangement whereby the DPB i s only assigned the "major a p p l i c a t i o n s " (those deemed to be of major impact, complexity, or controversy).  The D of P  considers those a p p l i c a t i o n s deemed to be " r e l a t i v e l y minor, or noncontentious".  Of a l l conditional use a p p l i c a t i o n s submitted, the D of P  considers 90%; and the D of P, personally considers a few of these. balance are considered by s t a f f designated by him.  The  - 78 -  The s t a f f judgment on who decides (D of P or DPB) i s important because a p p l i c a t i o n s submitted to the DPB are processed more r i g o r o u s l y than those considered by the D of P.  Even so, the option does remain to r e f e r an item to  the DPB at a l a t e r stage i f  "deemed necessary by s t a f f " ( e . g . considerable  c i t i z e n input, major issues a r i s e ) .  In any event, the a p p l i c a t i o n proceeds through an i n i t i a l process including c i r c u l a t i o n to other departments, and plan checking.  Since the  l e g i s l a t i o n grants d i s c r e t i o n to relax p r o v i s i o n s , a varying amount of negotiat i o n occurs between the s t a f f and a p p l i c a n t .  S t a f f i s to "have regard" to the  regulations and intent of the zone, any approved Council p o l i c i e s , g u i d e l i n e s , or plans, and to exercise sound judgment accordingly. among the varying objectives of the d i f f e r e n t  Trade-offs are common  p a r t i e s involved.  The Urban  Design Panel and any l o c a l area planning committees are advised of the a p p l i c a t i o n and provide input. owners by l e t t e r .  The option also e x i s t s to n o t i f y nearby property  The decision to n o t i f y i s at the d i s c r e t i o n of s t a f f , to in  e f f e c t , determine f o r a neighbourhood whether a proposed project t h e i r input.  warrants  A l l comments received are considered in rendering a d e c i s i o n .  If considerable response i s r e c e i v e d , a public meeting may be held to  clarify  p o s i t i o n s and seek compromises p r i o r to any d e c i s i o n .  For non DPB scheduled items ( i . e . those deemed minor, non contentious), the D of P (or designate) w i l l make a decision on the a p p l i c a t i o n a f t e r ing a l l the necessary information, that are granted.  gather-  in accordance with the d i s c r e t i o n a r y powers  No f u r t h e r steps are generally required.9  - 79 For items going to the DPB, f u r t h e r safeguards and steps in the process are required.  The item goes before a development permit s t a f f  committee  (Senior C i t y O f f i c i a l s ) f o r recommendation p r i o r to the DPB meeting.  Also,  it  i s C i t y p o l i c y to place a notice of the a p p l i c a t i o n in the newspaper, and post a sign on the property (1976 Council p o l i c y ) , at least 10 days p r i o r to the meeting.  The DPB meetings held every Monday are open to the p u b l i c .  The  Board hears a presentation on each item from planning s t a f f with a recommendat i o n to approve with/without c o n d i t i o n s , or to refuse.  A w r i t t e n s t a f f report  i s also submitted advising of the a p p l i c a t i o n ' s compliance with the zone or plan in question, r e l a t i o n s h i p to Council guidelines and p o l i c i e s , and the response, i f any, to n o t i f i c a t i o n given the opportunity to be heard,  and advertisement. as i s anyone e l s e .  The applicant i s then P r i o r to a d e c i s i o n ,  the Chairman (D of P) requests input from each member of the Advisory Panel (representatives from the general p u b l i c , design professionals and development industry).  The three member Board then votes in public on the a p p l i c a t i o n and  gives reasons f o r t h e i r d e c i s i o n .  In cases of dispute or i f f u r t h e r input i s  needed, the Board may request p r i o 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 zoning system. earlier.  discretionary  The need f o r competent decision makers has been referred  However, i t  to  i s also important f o r a l l the component parts of the  process to be e f f e c t i v e .  Planning Department s t a f f are, in p a r t i c u l a r ,  key  - 80 actors in the process given the wide administrative options open to them. Moreover, they have a major influence on the outcome since the decision maker i s often not involved u n t i l presented with t h e i r f i n a l  recommendation.  Consequently, s t a f f responsible for negotiation must e x h i b i t the q u a l i t i e s i d e n t i f i e d in Chapter II:  competence, p r o f e s s i o n a l i s m , e t h i c a l behavior,  sound judgment, comprehensiveness, and knowledge of r e g u l a t i o n s .  Of course, the s t a f f and decision makers are l i m i t e d in t h e i r r o l e by many f a c t o r s including the provisions in the l e g i s l a t i o n , the process  itself,  and q u a l i t y of documents adopted to inform the exercise of d i s c r e t i o n .  The  linkage among p o l i c i e s , guidelines and regulations must be c l e a r , and the substance be comprehensive and current to be of assistance in the process.  The Vancouver development permit process and use of d i s c r e t i o n has been under some s c r u t i n y by the C i t y 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 p r i m a r i l y on the development permit process.  The general consensus of these reviews was that the basic f l e x i b l e  d i s c r e t i o n a r y development control system and the D of P/DPB system was working well.  C r i t i c i s m s related to the length of time of uncertainty for  applications.  It was f e l t the process took too long, was too complex, and that there was no c e r t a i n t y u n t i l a decision was made.  The recommendation from these reviews  was p r i m a r i l y to increase the speed of the process, thereby reducing the time of uncertainty.  Substantive issues r e l a t i n g to a substantive planning basis  and procedural safeguards, while addressed, were of r e l a t i v e l y less significance.  - 81 Some s t a f f have acknowledged that time pressures and pre-occupation with the process and expediency has r e s u l t e d , at times, in a " f l y by the seat of your pants, based on experience" approach. politically  Such expedient response may be  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 objectives and the d i s c r e t i o n a r y zoning process.  In general, however, s t a f f expressed basic s a t i s f a c t i o n with the process, notwithstanding  t h e i r recognition that pressures f o r expediency may have at  times resulted in only e s s e n t i a l elements being analyzed and "somewhat superf i c i a l " treatment of a l l the i s s u e s .  However, despite d e f i c i e n c i e s , Planning  s t a f f (including the D of P) are supportive of the current system, and the nature and extent of d i s c r e t i o n a r y powers they possess.  The question of f a i r n e s s / i m p a r t i a l i t y / b i a s (DPB, D of P) are c i t y o f f i c i a l s  arises as the decision makers  (as required by the Charter).  and appearance of f a i r n e s s is required in decision making.  Both the f a c t  Several national  studies have been done on the r e l a t i v e advantages of d i f f e r e n t decision process systems, with a v a r i e t y of conclusions.  No f i r m answer e x i s t s .  However,  Vancouver should examine t h i s issue c a r e f u l l y to see i f an alternate system ( e . g . Hearing Examiner) may achieve a greater public  The issue of appeals also r a i s e s concern.  benefit.  F i r s t , the author suggests  that provision of appeal is necessary given the wide d i s c r e t i o n a r y powers granted.  However, the current mechanism, the Board of Variance, may not be  appropriate.  The Board of Variance i s a lay body established to consider  - 82 -  minor variances because of hardships, and i t s capacity to address the complexities and s u b t l e t i e s of major projects is questionable.  Again,  examination could be given to other options such as widening the Board's mandate, the creation of a P r o v i n c i a l appeal body, or even appeal to the l e g i s l a t i v e , p o l i c y making body, C i t y C o u n c i l .  3.  Summary of Process  The stated process, in general, mirrors the l e g i s l a t i o n in that  it  provides the mechanism f o r d i s c r e t i o n a r y decision making as prescribed.  The study's three p r e r e q u i s i t e s are incorporated into the process.  A  substantive basis in terms of regulations and p o l i c y i s the foundation for the extensive negotiations which occur. process such as n o t i f i c a t i o n ,  Procedural safeguards are included in the  appeal, advertisement, signage, and input from  non-city bodies, although many are o p t i o n a l .  The d i s c r e t i o n a r y zoning process i s an administrative  arrangement  combining l e g i s l a t i v e requirements with administrative procedures deemed relevant by Planning s t a f f .  Consequently, considerable leeway and  r e s p o n s i b i l i t y i s given to a l l p a r t i c i p a n t s in the process, in p a r t i c u l a r , planning s t a f f .  the  Given the wide d i s c r e t i o n a r y administrative options a v a i l a b l e  to s t a 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. provisions must be i n t e r p r e t i v e  While acknowledging that substantive in a d i s c r e t i o n a r y zoning system, the process  of decision making should not be.  A nebulous process can enhance the power of  - 83 -  those in c o n t r o l , thereby making process comprehension d i f f i c u l t and threatening o v e r a l l f a i r n e s s .  It may therefore be concluded that there i s  need to c l a r i f y , document and increase c e r t a i n t y 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 t a f f  p a r t i c u l a r negotiators who make judgments/trade-offs  i s r e q u i r e d , in  on applications and  f i n a l i z e recommendations.  A l s o , the process and Flow Chart shows there are less procedural safeguards required of the D of P in the exercise of d i s c r e t i o n , than the DPB. As a r e s u l t , the p o t e n t i a l f o r abuse increases given the D of P's wide d i s c r e t i o n a r y powers.  From a review of external studies of the system indicated e a r l i e r in t h i s s e c t i o n , s t a f f reports to C o u n c i l , and interviews with s t a f f  describing  constant pressures for rapid permit issuance, i t seems there may be a higher r e l a t i v e 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 objectives  could be compromised.  In sum, notwithstanding that the l e g i s l a t i o n and process addresses the three p r e r e q u i s i t e s of the study, there are several c r i t i c a l  deficiencies  which could jeopardize the success of Vancouver's d i s c r e t i o n a r y zoning system. Section E, the f i n a l part of t h i s chapter consolidates the findings and concludes t h i s  study.  - 84 Figure 4 i s a chart which summarizes in matrix form several v a r i a b l e s associated with the exercise of d i s c r e t i o n 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 i s also included for information).  In p a r t i c u l a r , the chart  o u t l i n e s the approving a u t h o r i t i e s ' r e l a t i o n s h i p to the three p r e r e q u i s i t e s to the exercise of d i s c r e t i o n , and should be of assistance in comprehending the conclusions and in c l a r i f y i n g Vancouver's d i s c r e t i o n a r y zoning system and i t s conformance with the three p r e r e q u i s i t e s of the study.  CONCEPTUAL FRAMEWORK TO DISCRETIONARY ZONING DECISIONS NUMBER OF „ SUBSTANTIVE. BASIS 1 PROCEDURAL SAFEGUARDS APPLICATIONS P o l i c y Basis Technical Basis (1980) THRF.F.  LEGISLATIVE AUTHORITY  DIRECTOR of PLANNING  (D of P)  Vancouver Charter (Sec. 565  and 565A) • Zoning and Development Bylaw 3575  AREA OF JURISDICTION  EXTENT/NATURE of DISCRETION  C i t y wide • o u t r i g h t uses > conditional uses (deemed "minor")  • General Source Zoning Bylaw Sec. 3.3.3 and 3.3.4 • Cannot contravene ODP  C i t y wide •conditional uses (deemed "major")  • General Source Zoning Bylaw Sec. 3.2.4 • Cannot contravene ODP  P R E C O N D I T I O N S  CD  • Regulations of Zoning Bylaw and ODP  DEVELOPMENT PERMIT BOARD (DPB)  and 565A) • Zoning and Development Bylaw 3575  |»50 C o u n c i l adopted p l a n s , policies, guidelines  •Regulations o f Zoning Bylaw and ODP  •50 C o u n c i l adopted p l a n s , policies, guidelines •No C i t y w i d e comprehensive plan  (Sec. 3.3.1) [•Development P e r m i t Board Bylaw 4876  BOARD of VARIANCE (B of V)  [•Vancouver C h a r t e r (Sec 572 and 573) |.B o f V Bylaw  C i t y wide • appeal o n l y  Cannot cont r a v e n e ODP  3844  For i n f o r m a t i o n o n l y (not p a r t of s t u d y )  • Optional notification provisions  •  Technically none  • Technically none (except "hardship")  • outright  137  B of V  • conditional  1182  • relaxation of r e g u l a t i o n !  •No C i t y w i d e comprehensive plan  (Sec. 3.3.1)  • Vancouver Charter (Sec. 565  FURTHER APPEAL  230  •  Optional notification provisions • Council policy to "post" s i t e s (major a p p l n ) • DPB Bylaw requirements - public - hearings - advt.  1  Optional notification provisions Meetings in public Advertise required  • conditional  B of V  89  328  none (Charter 573 (6))  - 86 -  E.  CONCLUSIONS  A.  Wide d i s c r e t i o n a r y powers are granted t o , and exercised by, Vancouver planning boards and o f f i c i a l s .  B.  The Vancouver d i s c r e t i o n a r y zoning l e g i s l a t i o n and process, in general terms, complies with the intent of the conceptual framework outlined in Chapter II,  which required three preconditions p r i o r  to  the exercise of d i s c r e t i o n to prevent abuse and ad hoc decision making. Basis:  A substantive basis i s required in two forms: Standards; (2) P o l i c y B a s i s :  (1) Technical  Comprehensive Plan.  Thirdly,  procedural safeguards are required in the process to prevent abuse of delegated d i s c r e t i o n .  1)  In general:  S p e c i f i c technical standards or development regulations are provided f o r each zone in the Zoning Bylaw and regulation provisions of ODPs, where i t  is deemed necessary to make  requirements s p e c i f i c .  2)  A broad p o l i c y basis i s found in a s e r i e s of documents (approximately 50) approved by C i t y Council since 1974 under various names, such as p o l i c i e s , p l a n s , g u i d e l i n e s .  In general,  these documents are intended to be somewhat f l e x i b l e and i n t e r p r e t i v e to provide d i r e c t i o n and foundation in making individual discretionary decisions. comprehensive plan e x i s t s .  However, no c i t y - w i d e  - 87 3)  Procedural safeguards are outlined in the Zoning Bylaw, ODP, DPB Bylaw, r e s o l u t i o n s of Council and i n t e r n a l procedures.  Safeguards include n o t i f i c a t i o n  administrative  provisions, right  of appeal, and in c e r t a i n s i t u a t i o n s r i g h t to hearing, posting of s i g n s , public meetings, input from non c i t y bodies, e t c .  C.  Notwithstanding apparent broad compliance with the conceptual framework, several major d e f i c i e n c i e s in the Vancouver d i s c r e t i o n a r y zoning system can be i d e n t i f i e d r e l a t i v e to the three p r e r e q u i s i t e s . The study concludes that the following d e f i c i e n c i e s e x i s t creating the p o t e n t i a l for abuse, and a r b i t r a r y decision making:  D e f i c i e n c i e s r e l a t i n g to Substantive P r e r e q u i s i t e s (Technical Standards and P o l i c y Basis)  1.  Confusion e x i s t s among documents approved by Council intended to provide a substantive basis to guide d i s c r e t i o n a r y judgments. More than 50 documents under t i t l e s such as g u i d e l i n e s , p o l i c i e s , plans, have been adopted.  However, in general, they  do not provide a workable foundation for decision making but often i n h i b i t change and create delay, in so f a r as t h e i r intent is not e x p l i c i t and t h e i r a p p l i c a t i o n i s often out of date.  The linkages among r e g u l a t i o n s , g u i d e l i n e s , and p o l i c i e s  are often not c l e a r , nor are the implementation mechanisms to achieve p o l i c y .  The d i f f i c u l t y  substance per se, as i t  may not be so much with  is with organization and s t r u c t u r e .  Consequently, increased uncertainty  results.  - 88 -  Comment:  Consideration should be given to a program to c l a r i f y ,  update  and r e f i n e a l l support documents; consolidate and separate a l l regulatory and p o l i c y documents; to codify guidelines where established p r i n c i p l e s e x i s t ; to ensure p o l i c y i s properly implemented.  A substantive basis i s 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 f o r the planning substance to be u s e f u l .  Discretion must be seen as  objective decision making based on sound p o l i c i e s / g u i d e l i n e s rather than a r b i t r a r y action of a delegated a u t h o r i t y .  2.  Conditional uses in t r a d i t i o n a l  zoning areas have a minimal  p o l i c y basis f o r the exercise of d i s c r e t i o n .  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 l a n / p o l i c y / g u i d e l i n e apply.  Therefore, there i s a  p o t e n t i a 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 , p o l i c y oriented comprehensive city-wide p l a n ; or at the least develop interim p o l i c y statements/development guidelines for a l l non ODP portions of the C i t y to guide the exercise of discretion.  - 89 D e f i c i e n c i e s Relating to Procedural Safeguards  3.  The act and method of n o t i f i c a t i o n c o n d i t i o n a l approval uses.  is d i s c r e t i o n a r y for  As such, i t p o t e n t i a l l y  threatens  the openness of the d i s c r e t i o n a r y zoning system as i t  allows  r e l a x a t i o n of regulations without the input of the neighbourhood directly  affected.  Comment:  Consideration should be given to n o t i f i c a t i o n being required for a l l conditional uses such as within a 200 foot radius of a site.  It  process.  i s recognized that t h i s places an increased burden on However, in a d i s c r e t i o n a r y system both the fact and  appearance of f a i r n e s s and openness should outweigh process inconveniences.  In f a c t , some say the only safeguard in a  d i s c r e t i o n a r y zoning system is f u l l p u b l i c review.  A second,  more expeditious a l t e r n a t i v e , would be to advertise a l l conditional uses in the newspaper p r i o r to d e c i s i o n , and allow public input.  4.  L i t t l e public documentation of the process e x i s t s outside of the broad l e g i s l a t i v e p r o v i s i o n s .  As such,  uncertainty,  misunderstanding, m i s t r u s t , and public nonconfidence r e s u l t s . Considerable administrative leeway e x i s t s in the d i s c r e t i o n a r y planning process and heavy pressures on s t a f f e x i s t in making  - 90 preliminary administrative decisions throughout the process, p r i o r to decision by D of P or DPB.  Moreover, the process  often appears confusing and i n c o n s i s t e n t .  Comment:  Consideration should be given to preparation of a public process guide.  This would include the philosophy and intent of the  process, followed by l e g i s l a t i v e and administrative  procedures.  This includes o u t l i n i n g options open to s t a 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 public confidence in the  system.  5.  Unbiased and impartial decision making is threatened i f decision maker i s also the negotiator.  the  This can occur as the  negotiator may be d i r e c t l y involved in the d e c i s i o n , as the D of P, or on his behalf.  Notwithstanding  safeguards in place  and the need for expertise in the decision making, there i s concern that there be substantial freedom from b i a s .  Comment:  One option is to require that the decision maker not be part of the negotiation process. f a i r n e s s is important.  Again, the f a c t and appearance of Consideration could even be given to  - 91 assigning decision making power to a q u a l i f i e d i n d i v i d u a l or committee outside the system, such as the Hearing Examiner approach, where expertise and public awareness s t i l l  exists,  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, r e l a t i v e to DPB, notwithstanding the powers and j u r i s d i c t i o n can be very similar.  P o t e n t i a 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 i s c r e t i o n by the D of P.  A  possible s o l u t i o n would be to advertise a l l items to be considered by him.  It may also be helpful to provide a public  record i n d i c a t i n g the r a t i o n a l e for d e c i s i o n s , including compliance with p o l i c i e s and g u i d e l i n e s , and minutes of any negotiations and meetings.  Again, the f a c t and appearance of  f a i r n e s s i s c r i t i c a l to i n s t i l l  and maintain confidence and  increase a c c o u n t a b i l i t y .  Appeal i s l i m i t e d to the Board of Variance, a lay body with l i m i t e d expertise and j u r i s d i c t i o n .  Potential e x i s t s f o r  u n f a i r and unqualified c o n s i d e r a t i o n , given the complexity of a p p l i c a t i o n s before them f o r d e c i s i o n .  - 92 Comment:  Consideration should be given to widening the mandate and membership of the Board of Variance; or creating a P r o v i n c i a l appeal or review agency; or even providing for d i r e c t appeal to Council.  In any event, the provision of the r i g h t to appeal a  decision to a q u a l i f i e d 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 e s t a b l i s h i n g a monitoring system, whereby the d i s c r e t i o n a r y zoning system and a l l i t s components ( p o l i c i e s , r e g u l a t i o n s , guidelines) could be monitored against r e a l i s t i c objectives for the system on a regular b a s i s ; such as every two years, with an o v e r a l l review required every f i v e years.  9.  Every e f f o r t should be made to ensure high standards are maintained for s e l e c t i o n of key negotiating s t a f f and decision 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 l e a r and precise as desired in intent and i n t e r p r e t a t i o n .  A  comprehensive rewrite would more c l e a r l y e s t a b l i s h the r u l e s , and increase p r e d i c t a b i l i t y and c e r t a i n t y .  - 93 F.  SUMMARY  The study concludes that Vancouver d i s c r e t i o n a r y zoning complies with the o v e r a l l intent of the conceptual framework.  However, major d e f i c i e n c i e s  e x i s t as stated in t h i s chapter and should be corrected to achieve greater public benefits from the system.  Improving the q u a l i t y and organization of the substantive basis w i l l make a p p l i c a t i o n of d i s c r e t i o n more reasoned.  Providing additional  procedural  safeguards w i l l lessen the p o s s i b i l i t y of ad hoc and a r b i t r a r y decision making.  This w i l l increase c e r t a i n t y and public confidence in the system.  The substantive basis and procedural safeguards, in e f f e c t , act as checks/balances and p o l i c e the system to ensure maximum public Unnecessarily r e s t r i c t i v e  benefit.  l i m i t a t i o n s on the d i s c r e t i o n a r y zoning process  might e f f e c t i v e l y preclude many b e n e f i t s .  A balance needs to be sought  between protecting the r i g h t s of a l l p a r t i e s 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 established and workable system, although r e q u i r i n g additional time and resources, should help to achieve a s t i l l better system more in accord with the p r e r e q u i s i t e s that have been i d e n t i f i e d .  - 94 FOOTNOTES CHAPTER IV 1.  C i t y of Vancouver Planning Department, 8 Years A f t e r , 1981, p. 2.  2.  This requirement i s d i f f e r e n t from the provisions f o r 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 C o u n c i l s .  3.  C i t y of Vancouver Planning Dept., 8 Years A f t e r , 1981, p. 1.  4.  This applies to the maximum f l o o r space for commercial uses and the t r a n s f e r of f l o o 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 provisions for Council to decide in place of DPB.  6.  The only exception here is that there is authority to refuse even an outright use i f any of s i x conditions e x i s t as i d e n t i f i e d in Section 3.3.2 of the Zoning Bylaw. The " l a s t r e s o r t " p r o v i s i o n , however, is r a r e l y used.  7.  The d i f f i c u l t y seems to be related to the organization 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 following four major p o l i c i e s e x i s t for land use and d e n s i t y : "1)  Do not increase commercial o f f i c e d e n s i t i e s .  2)  Encourage r e s i d e n t i a 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 r e s i d e n t i a l development."  However, these p o l i c i e s are extremely broad, have no time frame, and no implementation mechanism. To be more u s e f u l , what i s needed, at l e a s t , i s a more s p e c i f i c statement of the objective (even q u a n t i f i e d ) , followed by o u t l i n i n g the nature and extent of the program necessary to achieve it. The linkage between the p o l i c y and regulatory tool must be c l e a r e r . 3.  In examining the Vancouver l e g i s l a t i o n , several side issues arise regarding the extent of d i s c r e t i o n , where the l e g i s l a t i o n i s s i l e n t or the i n t e n t i s open to some i n t e r p r e t a t i o n . While t h i s area is not central to the thesis and the conceptual framework, i t i s of i n t e r e s t in a more legal sense. L i t t l e reported case law e x i s t s in B.C. on t h i s . For example, the enabling l e g i s l a t i o n in Section 3.2.4 gives authority to the DPB to " r e l a x p r o v i s i o n s " . While t h i s c l e a r l y allows authority 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 i m i t when 45 foot i s permitted). While t h i s occurs in p r a c t i c e , i t s authority may be questioned. A l s o , with respect to approving a use not l i s t e d in a zone, the l e g i s l a t i o n i s s i l e n t and does not s p e c i f i c a l l y preclude i t . For example, the l e g i s l a t i o n 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 e d could be interpreted as i n t r a v i r e s . However, such action would be tantamount to a rezoning (a l e g i s l a t i v e a c t ) , and would not l i k e l y occur given the d i r e c t i o n to consider g u i d e l i n e s , e t c . in making a d e c i s i o n . However, no c l e a r p o s i t i o n on t h i s i s stated in the Vancouver l e g i s l a t i o n . 9.  The Flow Chart indicates a s t a f f committee meeting considering items dealt with by the D of P, p r i o r to the D of P making a d e c i s i o n . However, in p r a c t i c e , t h i s does not occur as the s t a f f committee meeting considers only items scheduled f o r the DPB.  10.  Three reviews were undertaken in 1978, 1979: a)  Discretionary Zoning Seminar, sponsored by the Vancouver Planning Commission, Oct. 1978.  b)  Review of Central Area Development Control Powers, by C i t y Manager's O f f i c e , 1979.  c)  UDI, AIBC, C i t y Hall L i a i s o n Committee on Development Permit Process, 1979.  - 96 CHAPTER V  EPILOGUE  Chapters II and III  examined the r i s e of f l e x i b l e zoning techniques  involving increasing administrative d i s c r e t i o n 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 established which s p e c i f i e d  three preconditions to the exercise of d i s c r e t i o n . required in two forms: policy basis:  f i r s t , technical b a s i s :  comprehensive p l a n .  A substantive basis i s  standards, and secondly,  T h i r d l y , procedural safeguards are  required to minimize potential for the abuse of d i s c r e t i o n a r y powers. Chapter III  examined f i v e s p e c i f i c f l e x i b l e techniques in use today involving  a considerable exercise of d i s c r e t i o n .  The need for each technique to respond  to the conceptual framework was demonstrated.  Chapter IV examined the Vancouver d i s c r e t i o n a r y zoning system to determine the extent/nature of d i s c r e t i o n r e l a t i v e to the conceptual framework.  The study revealed that f i r s t , wide d i s c r e t i o n a r y powers were  delegated to administrative 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 deficiencies existed.  The d e f i c i e n c i e s , in general, were that a basic  framework existed in the l e g i s l a t i o n and process, but that  insufficient  a t t e n t i o n was given to a substantive basis in decision making and the provision of procedural safeguards.  Some suggestions were made to tighten up  the system thereby reducing potential for abuse, increasing c e r t a i n t y , r a t i o n a l i t y , and public confidence in the system.  - 97 What has become i n c r e a s i n g l y evident in t h i s study, both from the l i t e r a t u r e and from the Vancouver study, i s the necessity f o r a land use control system to have a l l components f i r m l y established and working effectively.  This is p a r t i c u l a r l y true in the case of d i s c r e t i o n a r y zoning  where considerable d i s c r e t i o n a r y authority i s delegated, and rules are not determined in advance, nor is the process s e l f - r e g u l a t i n g .  In addition to the  preconditions of substance and procedure, the study revealed an area which j u s t i f i e s restatement; that being the need f o r negotiators and decision makers to be of the highest competence and expertise to make the subtle judgments and tradeoffs that are necessary.  The nature of d i s c r e t i o n a r y zoning is such that i f the system cannot be kept f i n e l y tuned, and responsive to r a p i d l y changing public needs, then capacity to be a p o s i t i v e regulatory tool diminishes.  its  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 c e r t a i n t y  is  increased notwithstanding r i g i d i t y and other d e f i c i e n c i e s of the Euclidean approach.  This study does not promote reverting to a Euclidean system; nor, however, does i t suggest using a complete d i s c r e t i o n a r y system without safeguards. S u f f i c i e n t evidence e x i s t s - some of which has been provided in the t h e s i s -to discount e i t h e r extreme p o s i t i o n .  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 administrative o f f i c i a l s .  The question becomes  - 98 -  "how much i s enough", and to what extent should p r o v i s i o n of delegated powers be a s c e r t a i n a b l e .  The appropriate balance between f l e x i b i l i t y  a b i l i t y w i l l always be questioned. everyone's s a t i s f a c t i o n .  and p r e d i c t -  This d u a l i t y w i l l never be resolved to  Evidence of t h i s e x i s t s throughout the  and from the Vancouver study.  One must acknowledge that d i s c r e t i o n a r y zoning  is l a r g e l y judgmental, and often there may be no universal answer. human, c r e a t i v e process, and w i l l often mean d i f f e r e n t participants.  literature  things to  It  is a  different  The system is by necessity complex.  Moreover, uncertainty w i l l always e x i s t in a d i s c r e t i o n a r y zoning system. Administrative changes can reduce the time of uncertainty, but w i l l never be able to negate i t .  P o s i t i v e changes to substance (basis) and procedure w i l l  increase c e r t a i n t y , but uncertainty w i l l always e x i s t to some degree in d i s c r e t i o n a r y zoning by design and d e s i r e .  E a r l i e r in the t h e s i s , d i s c r e t i o n was defined as " i n d i v i d u a l i z e d a p p l i c a t i o n of administrative judgment which allows a v a r i a b l e response and s o l u t i o n to a problem".!  In order to i n s t i l l  confidence in a d i s c r e t i o n a r y zoning  system, t h i s d i s c r e t i o n a r y action must be seen to be an objective d e c i s i o n based on sound p r i n c i p l e s rather than an a r b i t r a r y whim of an o f f i c i a l .  The  d i s c r e t i o n a r y prerogative must not be abused.  Unless conscious e f f o r t s  are made to e s t a b l i s h , maintain and monitor an  e f f e c t i v e and. current d i s c r e t i o n a r y zoning system, i t w i l l not achieve maximum public benefit.  Results w i l l erode and compromise the v a l i d public purpose  intended f o r i t ,  and increase the p o t e n t i a l f o r abuse and capricious a c t i o n .  - 99 No doubt, the r i s k s are greater in u t i l i z i n g a d i s c r e t i o n a r y zoning system, but the p o t e n t i a l benefits are also greater.  A d i s c r e t i o n a r y zoning  system should be used only i f the C i t y , desirous of greater public b e n e f i t s , i s prepared to support such desires with a planning process involving a d i s c r e t i o n a r y zoning mechanism which incorporates the preconditions outlined in the t h e s i s .  Babcock in C i t y Zoning (1979) states t h a t :  " F i r s t , nothing i s so important to a successful scheme of land use regulation as d i s c r e t i o n in i t s a d m i n i s t r a t i o n ; second, nothing i s more subject to d e s t r u c t i v e abuse than administrative d i s c r e t i o n " ^  Here, the remedy to the potential for abuse is not to take d i s c r e t i o n away, but rather to inform and control i t so as to make i t a p o s i t i v e t o o l .  RELEVANCY OF STUDY TO PLANNING  It must be remembered that d i s c r e t i o n a r y zoning i s , simply, a t o o l in the planning process.  Discretionary zoning does not c o n s t i t u t e 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 l a n " or the "planning process" i s more d i f f i c u l t to determine in d i s c r e t i o n a r y zoning than in the Euclidean approach.  In t h i s context, the land use control system i s 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 linkages among support documents such as p o l i c i e s , g u i d e l i n e s , r e g u l a t i o n s , are not c l e a r , the chances f o r success of a d i s c r e t i o n a r y zoning approach are reduced.  As was stated e a r l i e r in the t h e s i s , the concept of planning changes somewhat with a d i s c r e t i o n a r y system.  While s t i l l  acknowledging the capacity  of long range planning to serve c e r t a i n 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 i s c r e t i o n a r y 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 p r e r e q u i s i t e s must be provided and work  together to achieve the maximum public b e n e f i t , within a comprehensive planning process.  DIRECTIONS FOR FURTHER RESEARCH  This t h e s i s examined only one area of d i s c r e t i o n a r y zoning, a l b e i t important, that being the need f o r c e r t a i n preconditions to the exercise of d i s c r e t i o n a r y powers by delegated o f f i c i a l s .  The emphasis was on zoning  structure and a d m i n i s t r a t i o n .  A l o g i c a l f o l l o w up to t h i s work i s to examine the r e s u l t s of a d i s c r e t i o n a r y zoning system, such as Vancouver's.  Such a study could examine  a random number of projects approved under the system, against a f e a s i b l e set of o b j e c t i v e s , 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 r a d i t i o n a l  zoning approach.  What  - 101 were the d i s c r e t i o n a r y elements ( e . g . d e n s i t y , design, use, i n t e n s i t y ,  etc.)?  The study could also examine the product r e l a t i v e to stated objectives contained in p o l i c i e s , g u i d e l i n e s , plans, and the incorporation of procedural safeguards into the process.  This would provide an additional and p r a c t i c a l l i n k to the  r e l a t i v e l y new study of d i s c r e t i o n a r y zoning.  This study has also touched on other more basic land use control issues which require examination.  For example, the t h e s i s 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 c e r t a i n t y . universal answer?  Can there be a  Are there c e r t a i n elements that should be mandatory, and  others d i s c r e t i o n a r y ?  A more fundamental issue a r i s e s .  What does the r i s e of d i s c r e t i o n a r y  zoning techniques mean f o r the future of planning?  Is there l i k e l y to be  increasing decision making r e s p o n s i b i l i t y on the planning o f f i c i a l ?  What does  t h i s mean to the planning process and to the organization 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 r e q u i r i n g f u r t h e r examination in years to come as innovation i s sought in land use control mechanisms and in the e n t i r e planning process.  - 102 Footnotes CHAPTER V 1.  Edwin D. F o l l i c k , "The Element of Discretion Inherent in Administrative A d j u d i c a t i o n " , Thesis, Blackstone School of Law, Chicago, 1967, p. 3.  2.  C l i f f o r d L. Weaver and Richard F. Babcock, " C i t y Zoning, (Chicago: Planner's Press, 1979), p. 257.  - 103 BIBLIOGRAPHY Books Barnett, Jonathan. Urban Design As Public P o l i c y : P r a c t i c a l Methods For Improving C i t i e s . New York: McGraw H i l l P u b l i c a t i o n s , 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 J u d i c i a l Review Of Administrative A c t i o n , by S. A. DeSmith - Fourth E d i t i o n . London: Stevens and Sons Limited, 1980. Fishman, Richard P . , ed. Housing For A l l Under Law: New Directions In Housing, Land Use And Planning Law, a Report of the American Bar Association Advisory Commission on Housing and Urban Growth. Massachusetts: B a l l i n g e r Publishing Company, 1978. Goldberg, Michael and Peter Horwood. Zoning: Its Costs And Relevance For The 1980s. Canada: The Fraser I n s t i t u t e , 1980. Goodman, William I., ed. P r i n c i p l e s And P r a c t i c e Of Urban Planning. Washington D . C : International C i t y Managers' A s s o c i a t i o n , 1968. Haveghurst, Clark C , ed. Administrative D i s c r e t i o n : Problems Of Decision Making By Government Agencies. New York: Oceana P u b l i c a t i o n s , Inc. 1974. J o w e l l , J e f f r e y L. Law And Bureaucracy: Administrative Discretion And Limits Of Legal A c t i o n . New York: Dunellen Publishing Company, 1975. L i s t o k i n , D a v i d . , ed. New Jersey:  Land Use C o n t r o l s : Present Problems And Future Reform. Centre f o r Urban P o l i c y Research, 1974.  Mandelker, Daniel R. The Zoning Dilemma: A Legal Strategy For Urban Change. Washington: Bobbs-Merrill Company, I n c . , 1971. Marcus, Norman and Marilyn W. Groves, eds. The New Zoning: L e g a l , A d m i n i s t r a t i v e , And Economic Concepts And Techniques. New York: Praeger P u b l i s h e r s , 1970. M i l n e r , J . B., ed. Toronto:  Community Planning: A Casebook On Law And Administration. U n i v e r s i t y of Toronto Press, 1963.  Rogers, Ian Mac F. Canadian Law Of Planning And Zoning. Carswell Company Limited, 1981. Rose, Jerome, G. Legal Foundations Of Land Use Planning. f o r Urban P o l i c y Research, Rutgers, 1979.  Toronto:  The  New Jersey:  Centre  - 104 -  „  Rathkopf, Arden H. The Law Of Zoning And Planning. New York: Clark Boardman C o . , L t d . 1981.  V o l . 3, fourth e d i t i o n .  So, Frank, I s r a e l Stollman, et a l , eds. The P r a c t i c e Of Local Government Planning. Washington D . C : International C i t y Management Association in cooperation with the American Planning A s s o c i a t i o n , 1979. Weaver, C l i f f o r d L. and Richard F. Babcock. C i t y Zoning: The Once and Future Frontier. Chicago: Planner's Press, American Planning A s s o c i a t i o n ,  T979.  Journals and Reports Bernstein, Richard Charles. "Vancouver's Residential Design Guideline Process: A Case Study." A t h e s i s submitted f o r 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 t y A r e a s . " Advisory S e r v i c e . Report No. 257, May 1970.  ASPO Planning  D h i l l o n , Jagdev Singh. "The Zoning Board Of Appeal: A Study of i t s Role in the Implementation of Municipal Planning P o l i c y in B r i t i s h Columbia." Thesis submitted for the Degree of Master of Science in D i v i s i o n of Community and Regional Planning. U . B . C . , Vancouver, 1966. F o l l i c k , Edwin Duane. "The Element of Discretion Inherent in Administrative A d j u d i c a t i o n . " A t h e s i s submitted f o r the Degree J u r i s 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, U n i v e r s i t y of Waterloo, October, 1974. Harvard Law Review. "Administrative Discretion in Zoning." Harvard Law Review A s s o c i a t i o n , Cambridge, Massachusetts, 1968-69. Hason, Nino. "The Emergence and Development of Zoning Controls in North American M u n i c i p a l i t i e s : A C r i t i c a l A n a l y s i s . " Paper submitted to U n i v e r s i t y of Toronto: August, 1977. Heeter, David. "Toward a More E f f e c t i v e 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 S e r v i c e , Sept. - Oct. 1969. Meshenberg, Michael J . "The Administration ASPO, Planning Advisory S e r v i c e .  of F l e x i b l e Zoning Techniques", Report No. 318, 1975.  - 105 . "The Language of Zoning: A glossary of Words and Phrases", ASPO, Planning Advisory S e r v i c e . Report No. 322, 1975. Porter, Brian John. "The and Development Master of A r t s , Vancouver, May,  Land Use Contract: Its V a l i d i t y as a Means of Use Control". A thesis submitted for the Degree of School of Community and Regional Planning, U . B . C . , 1973.  Rahenkamp Sacks Wells and A s s o c i a t e s , I n c . , The American Society of Planning O f f i c i a l s , and David S t o l o 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 t h e s i s submitted f o r the Degree of Master of A r t s , School of Community and Regional Planning, U . B . C . , May, 1969. Reps, John W. "Requiem f o r Zoning".  Pomeroy Memorial Lecture, U.S.A. 1964.  Smith, R. M a r l i n . "Zoning Boards of Appeal", Zoning: Mirror of C r i s i s . Proceedings of the I n s t i t u t e on Zoning, U n i v e r s i t y 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 t e i n , L e s l i e A. "The Municipal Power to Zone in Canada and the United States: A Comparative Study", Canadian Bar Review. No. 49, 1971. V r a n i c a r , John, et a l . "Streamlining Land Use Regulation: A Guidebook f o r Local Governments". Prepared by American Planning Association f o r Office of P o l i c y Development and Research, Washington D . C , Nov., 1980. By-Laws and Publications Province of B r i t i s h Columbia.  Vancouver Charter.  S e p t . , 1976.  Vancouver C i t y Planning Commission. Transcript of Seminar on "How Can We Improve Our Zoning Regulations?" Oct. 5, 1978. Vancouver C i t y Planning Commission.  Goals f o r Vancouver.  Vancouver C i t y Planning Department.  Annual Review 1981 - 1982.  Vancouver C i t y Planning Department. Eight Years A f t e r . Discretionary Zoning in Vancouver, Oct. 1981.  F e b . , 1980. March 1982.  Case Study under  Vancouver C i t y Planning Department, Downtown Study Team. Downtown Vancouver: Planning Concepts for Future Development and Process of Control of Development. Sept., 1974. Vancouver C i t y 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.  In this Part, unless the context otherwise requires, " b u i l d i n g " includes structures of every k i n d , excavations in respect of any structure, and everything so attached to a structure as to constitute it real property; "construction"  includes erection, repair, alteration,  enlargement,  addition, demolition, removal, and excavation. 306.  T h e C o u n c i l may make by-laws:—  Off-street Parking For Other Buildings.  (r)  F o r 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 C o u n c i l may by by-law prescribe, and for defining and classifying such buildings, and for differentiating and discriminating according to such classification in respect o f the accommodation to be provided as aforesaid;  Off-street Loading and Parking For Commercial Buildings.  (s)  F o r requiring that in the construction o f any building used for commercial or industrial purposes, or where by the nature of its proposed use quantities o f 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 C o u n c i l may prescribe and for off-street loading and unloading of articles, materials, or merchandise delivered to or taken from such building, and f o r defining and classifying such buildings, and for differentiating and discriminating according to such classification in respect of such provision, and, in the discretion o f the C o u n c i l , for designating the areas where such provision ' s h a l l b e required, as aforesaid and for providingthat in the discretion of t h e C o u n c i l the by-law provision e n a c t e d pursuant to this paragraph may b e waived a n d , in lieu thereof, C o u n c i l may by bylaw a c c e p t p a y m e n t o f s u c h s u m o f m o n e y as m a y b e d e e m e d --appropriate by Council.  P A R T XXVII Planning and Development Interpretation 559.  In  this Part, or in any by-law made thereunder, unless the context  otherwise requires: " B u i l d i n g " and " C o n s t r u c t i o n " mean " B u i l d i n g " and " C o n s t r u c t i o n " as defined in section 304.  ,  APPENDIX J U N E  I 1981  -  107  -  "Certificate o f use and o c c u p a n c y " means a certificate issued by the Director o f Planning or such other persons as are authorized by C o u n cil, designating the authorized use or occupancy o f any land or building; " D e v e l o p m e n t " means a change in the use o f any land or building, including the carrying-out o f any construction, engineering or other operations in, o n , over, or under land or land covered by water. "Development P l a n " means a plan or plans for the future physical development o f the city or any part thereof, whether expressed on drawings, reports or otherwise, and whether complete or partial. " N o n - c o n f o r m i n g " as applied to a development means that such development was lawful when it took place but, by reason of a zoning bylaw subsequently passed, does not conform to the uses permitted or regulations prescribed by such by-law. " N o n - c o n f o r m i t y " shall have a corresponding meaning. "Official Development P l a n " means any development plan, whether complete or partial, which has been adopted under this Part. " O w n e r " shall include the agent or representative o f a person owning or in possession of real property or in receipt o f the rents or profits therefrom whether on his own account or as agent or trustee for any other person. "Structural A l t e r a t i o n " includes any work or construction which involves any change, modification, replacement or repair o f any supporting member o f a building including the bearing walls, columns, beams, or girders thereof. " Z o n i n g B y - l a w " shall include a Z o n i n g and Development By-law. Appointment of Director of Planning 560.  T h e C o u n c i l may appoint a Director o f Planning who shall have such duties and powers as the C o u n c i l may from time to time prescribe.  Power of entry to inspect. 560A.  T h e Director o f 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.  T h e C o u n c i l may have development plans prepared or revised from time to time. Such plans m a y : (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;  APPENDIX J U N E  1981  I  2  - 108 -  (c) Designate land for streets, lanes and other public thoroughfares and for the widening of streets, lanes, and other public thoroughfares; designate sites f o r 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.  T h e C o u n c i l m a y , by by-law: (a) A d o p t 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) T h e adoption by C o u n c i l o f a development plan shall not c o m m i t the C o u n c i l to undertake any of the developments shown on the plan. (2) T h e C o u n c i l shall not authorize, permit o r undertake any development contrary to or at variance with the official development plan. (3) It shall be unlawful f o r any person to commence o r undertake any development contrary to or at variance with the official development 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 o f the project, and in addition acquire other adjacent or neighbouring real property. Such additional real property may include: (a) T h e remnants o f parcels, portions o f which are essential to carrying out the project; (b) A n y lands which may be injuriously affected by the project; (c) A n y lands which, if t i o n , might become would prejudicially forming part o f the  allowed to be built upon without restricthe site of buildings or structures which affect the full enjoyment of any building project or the architectural effect thereof;  (d) A n y lands which the Council is of the opinion could be conveniently and profitably resubdivided or rearranged and developed as part of the project. Power to Purchase or Expropriate (2) T h e C o u n c i l shall have the same right to purchase or expropriate the additional lands as it has to purchase or expropriate the  3  APPENDIX J U N E  I 1981  - 109 -  lands immediately under this A c t . Expenses  necessary for the carrying-out of the project  (3) A n y expenses incurred in acquiring additional lands shall be met as part of the project, and the proceeds o f any sale or other disposition of the lands so acquired shall be applied, in so far as they are required, in reduction o f the cost o f carrying out the project.  Zoning  565.  T h e C o u n c i l may make by-laws:  by-law (a) dividing the city or any portion thereof into districts or zones o f such number, shape or size as C o u n c i l may deem fit; (b) regulating, within any designated district or zone, the use or occupancy o f 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 construction, use, or occupancy of buildings for or except for such purposes as may be set out in the by-law; (d) regulating the height, bulk, location, size, floor area, spacing, and external design o f 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 o f 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 development must submit such plans and specifications as may be required by the Director of Planning and obtain the approval of Council to the form o f development;  (g) delegating to the Director of Planning or such other persons as are authorized by C o u n c i l the authority to certify the authorized use or occupancy of any land or building; (h) providing for certificates o f use or occupancy and providing that the use or occupancy o f any land or building other than in accordance 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 o f the land or building liable to the penalties provided in the by-law;  APPENDIX J U N E  1981  (i)  authorizing the collection of a fee for a certificate of use or occupancy, which fee may vary according to the type of use or occupancy or the value o f the land or building used or o c c u p i e d ;  (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.  I  4  - 110 -  565A. C o u n c i l may make by-laws: (a) prohibiting any person from undertaking any development without having first obtained a permit therefor. Such permit shall hereinafter 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 c o m p l y with such conditions; (c) providing that n o building permit shall be issued for the construction of any building until a development permit has first been obtained; (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 C o u n c i l seem appropriate; (e) providing for the relaxation in any case where literal enforcement 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 o c c u p a n c y dwelling unless it was so u s e d or o c c u p i e d 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. T h e 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 o f a fee upon application for a development permit, which fee may vary accordingly to the value or type o f development for which the permit is sought;  (g) providing that the use or occupancy of any land or building in contravention o f the provisions o f a zoning by-law or the conditions 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  APPENDIX T J U N E  1981  - Ill -  Amendment or Repeal of Zoning By-law 566.  (1) The C o u n c i l shall not make, amend or repeal a zoning by-law until it has held a public hearing thereon, and an application for rezoning shall be treated as an application to amend a zoning by-law. (2) C o u n c i l 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 o f the hearing, stating the time and place of the hearing and the place where and the times within which a copy of the proposed by-law may be inspected, shall be published in not less than two consecutive issues o f a daily newspaper published (or circulating) in the c i t y , with the last o f such publications appearing not less than seven days nor more than fourteen days before the date o f 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 C o u n c i l deems fit. (6) Notwithstanding the provisions of this section, where any street or part thereof has been stopped up under the provisions of any A c 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 f o r the same purpose for which the parcel o f which it has become a part is already zoned unless the C o u n c i l 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 C o u n c i l by resolution shall otherwise direct.  By-laws Governing Restrictions as to Height of Buildings, Size of Courts and Yards 567.  APPENDIX J U N E  1981  Where the provisions o f the zoning by-law impose requirements for a lower height o f 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 provision o f the zoning by-law shall govern; but where the provisions of the building-by-law impose requirements for a lower height of buildings, or a less percentage o f lot that may be occupied, or require wider or larger courts or deeper yards than are required by the zoning bylaw, the provisions o f the building by-law shall govern.  I  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 governing matters other than the use which may be made o f 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 o f a zoning by-law, although such use is not in accordance with the provisions o f the by-law, may be continued; but, if such nonc o n f o r m i n g use is discontinued for a period of ninety days, any future use o f those premises shall be in conformity with the provisions o f the by-law. T h e Board of Variance shall have power to allow relaxation of this provision. (4) N o 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 o f 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 C i t y Building Inspector, whose decision shall be subject to review by the Board of Variance, 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 o f land or buildings may be permitted in accordance with the provisions of the Zoning and Development By-law.  7  APPENDIX J U N E  I 1981  - 113 -  )  Property Injuriously Affected  569  (1) Where a z o n i n g by-law is o r has been passed, amended, or repealed under this Part, or where C o u n c i l o r any inspector or official o f the city or any board constituted under this A c t exercises any o f the powers contained in this Part, any property thereby affected .shall be deemed as against the city not to have been taken or inj u r i o u s l y affected b y reason o f the exercise o f any such powers or Dy reason o f such zoning and no compensation shall be payable by the city or any inspector or official thereof. (2) Notwithstanding that the Board o f Variance has relaxed the provisions o f a by-law enacted under this Part, in determining the compensation payable b y the city f o r the taking of lands for the widening o f a street in respect o f which a building line has been f i x e d , the city is not liable to pay compensation for or in respect of any building erected in contraventation o f the by-law fixing the building line. (3) U p o n the acquisition o f such lands by the city, the owner shall, u p o n demand b y the c i t y , remove such building or part thereof, as the case may b e , a n d , in default thereof, the city may remove the same and the costs o f such removal and any other costs indidental 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 o f the land unless sooner paid to the city.  Withholding of Permit Pending Passage of Zoning By-law 570.  (1) Prior to the adoption o f a zoning by-'aw, or of an official development plan, or of an amendment to a zoning by-law, or of an alteration, addition, or extension to an official development plan, the C o u n c i l may cause to be withheld the issuance of any development or building permit for a period o f thirty days from the date o f application for such permit. (2) Where any permit is so withheld, the application therefor shall be considered by the C o u n c i l within the said period of thirty days, a n d , if in the opinion o f the C o u n c i l , the development proposed in the application would be at variance or in conflict with a development plan in the course of preparation, or with an alteration, addition, or extension to an official development plan in course o f preparation, o r with a zoning by-law in course of preparation, or with an amendment to a zoning by-law in course o f preparation, the C o u n c i l may withhold the permit for a further sixty days from the expiration o f the thirty-day period hereinbefore referred to, or the C o u n c i l may impose such conditions on the granting of the development permit as may appear to the C o u n c i l to be in the public interest.  APPENDIX I JUNE 198!  s  \  -  114  -.  (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 o f the land in respect o f 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 o f such development permit, or the imposition o f such conditions. Such compensation shall be determined by arbitration pursuant to the Arbitration Act. Enforcement of By-law 571.  (1) A n y by-law passed hereunder may be enforced and the contravention o f any regulation therein restrained by the Supreme Court upon action brought by the city, whether or not any penalty has been imposed f o r such contravention, and it shall be unnecessary for the C r o w n or the Attorney-General or any other officer o f the C r o w n to be a party to such action. (2) A n y Z o n i n g By-law passed hereunder may be enforced and the contravention o f any regulation therein restrained by the Supreme C o u r t upon action brought by the city or by any registered owner of real property or any incorporated society representing registered owners o f real property in the C i t y o f Vancouver and affected by such by-law or regulation, whether or not any penalty has been imposed for such contravention, and it shall be unnecessary for the C r o w n or the Attorney-General or any other officer o f the C r o w n to be a party to such action.  Board o f 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) T h e Council shall establish by by-law a Board o f five members, two to be appointed by the C o u n c i l , two to be appointed by the Lieutenant-Governor in C o u n c i l , and a Chairman who shall be appointed by a majority o f the other appointees. T h e Board shall appoint a secretary and such other officials as may be required by the Board. (2) Each member o f 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) T h e C o u n c i l may provide, by by-law or resolution, for the remuneration o f members o f the Board, in such amounts as the Council thinks fit, and may also provide for the payment o f a fee for the hearing o f an appeal before the Board. (4) N o person w h o is a member o f 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 o f the board.  9  APPENDIX  I  J U N E 1981  - 115 -  ) (5) Three members of the Board shall constitute a q u o r u m . (6) T h e Chairman may from time to time appoint a member of the Board as Acting-Chairman to preside in the absence of the Chairman. (7) In the event o f the death, resignation, or removal from office of any member o f the Board, his successor shall be appointed in the same manner as such member was appointed, and until the appointment o f his successor the remaining members shall constitute the Board. (8) T h e Chairman may be removed at any time by the LieutenantGovernor in Counci) on the recommendation o f the C o u n c i l . (9) T h e 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 o f giving notices required under section 573. Appeals to Board of Variance 573.  (1) T h e 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 o f 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 w h o alleges that due to special circumstances or conditions the provisions of subsection (3) o f section 568 will result in undue or unnecessary hardship to h i m ; (d) With respect t o matters arising under subsections (4) and o f section 568.  (5)  (e) by any person aggrieved by a decision by any board or tribunal to whom C o u n c i l has delegated power to relax the provisions o f a zoning by-law. (2) T h e 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 profitable use nor unless the following conditions exist: (a) T h e undue or unnecessary hardship arises from circumstances applying to the applicant's property o n l y ; and  APPENDIX J U N E  1981  I  10  "  - 116 -  (b) T h e strict impose an the use of and intent  application of the provisions of the by-law would unreasonable restraint or unnecessary hardship on the property inconsistent with the general purpose of the zoning by-law; and  (c) T h e allowance o f the appeal will not disrupt the official development plan. (3) T h e Board shall give notice to such owners o f 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 o f sufficient importance. F o r the purpose ofdetermining the names o f the owners deemed to be affected, reference shall be made to the records kept by the Assessor. (4) T h e Board shall conduct its hearings o f appeals under this section in public. (5) T h e decision o f a majority o f the members of the Board present at a hearing shall constitute the decision o f 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) N o appeal shall lie from a decision o f 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) C o u n c i l may by by-law provide that failure to comply with any restrictions, limitations, or conditions Tmposecf"b~y the Board pursuant to subsection ( 7 ) shall constitute an offence against the by-law.  11  APPENDIX  1  JUNE 1981  -  117  -  A P P E N D I X  II  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 representatives onto any such land or into any such building, to which said entry is made or attempted pursuant to the provisions of this Bylaw, shall be deemed to be guilty of an infraction of the By-law.  1  SECTION 3 JUNE  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 requirements 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 JLTVE  1981  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 serving 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 a c r e s , i n cases  where  the  distance  between  such boundary  and  Districts 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 b y  R the  p a r k i n g a r e a is i n e x c e s s o f 2 5 0 f e e t ; (c) T h e m a x i m u m p r o j e c t i o n o f e x t e r i o r b a l c o n i e s w i t h r a i l i n g s into required yards, horizontal daylight  control angles  and  limitations o n building length.  3.2.3  T h e Director of Planning, before granting any relaxation pursuant t o s u b s e c t i o n 3.2, s h a l l b e s a t i s f i e d t h a t a n y p r o p e r t y o w n e r l i k e l y t o b e 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 t h e f o r m a p p r o p r i a t e t o t h e 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 so notified shall object, t h e n s u c h relaxation shall not be granted, b u t the a p p l i c a n t for s u c h relaxation m a y t h e n exercise h i s right o f a p p e a l t o t h e B o a r d o f V a r i a n c e , at w h i c h t i m e t h e r e p r e s e n t a t i o n s of the Director of P l a n n i n g a n d of any s u c h property owner shall be heard.  3.2.4  T h e D e v e l o p m e n t P e r m i t B o a r d , i n t h e 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 r e l a x t h e p r o v i s i o n s o f t h i s B y - l a w . In g r a n t i n g a n y r e l a x a t i o n , the  Board shall have  regard to the  intent of this  By-law,  the  regulations and policies of any Official Development Plan, and 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 i m e t o t i m e d e t e r m i n e , including design guidelines. 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 , structures,  lands,  Municipal  Heritage  or  parts Sites,  thereof the  designated  Director  of  by  D e v e l o p m e n t P e r m i t B o a r d , as t h e c a s e m a y b e , m a y (a)  Council  Planning  or  as the  relax:  a n y r e g u l a t i o n o f t h i s B y - l a w w h e r e literal e n f o r c e m e n t w o u l d result i n alterations that c o n t r a v e n e s e c t i o n 12 o f t h e B r i t i s h C o l u m b i a Heritage C o n s e r v a t i o n A c t , or the s i m i l a r s e c t i o n o f a n y A c t that m a y supersede the Heritage Conservation Act;  (b) a n y o t h e r pursuant  p r o v i s i o n o f this to  this  By-law.  s u b s e c t i o n , the  In  granting  Director  of  any  relaxation  P l a n n i n g , or  the  D e v e l o p m e n t Permit B o a r d , s h a l l h a v e regard to the i n t e n t o f this Bylaw, 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 Plan, the British C o l u m b i a Heritage C o n s e r v a t i o n A c t , s u c h other p o l i c i e s as C o u n c i l m a y f r o m t i m e to time d e t e r m i n 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 heritage a d v i s o r y g r o u p a p p r o v e d b y C o u n c i l .  3  SECTION 3 JUNE  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 undertaken, 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.  3.3  Development Permits  3.3.1  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.  3.3.2  -Notwithstanding the provisions_pf.this By Jaw. a development permit may be refused if the development in respect of which application is made:  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  3.3.4  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 consent of the Development Permit Board would otherwise be required. 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 JUNE  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 JUNE  1961  6  APPENDIX  1 2 3  RS-1 DISTRICT SCHEDULE 1  Intent The  intent o f this  S c h e d u l e is t o m a i n t a i n  the  single-family  residential character o f the District.  2  Outright Approval Uses  2.1  Subject to all other p r o v i s i o n s o f this By-law a n d to c o m p l i a n c e w i t h t h e 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 , t h e u s e s l i s t e d i n S e c t i o n 2.2 shall b e permitted i n this District a n d shall b e issued a permit.  2.2 2.2.A  USES •  Accessory  Buildings a n d accessory uses customarily an-  cillary to a n y o f the u s e s listed 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 f e e t 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 a r e l o c a t e d i n t h e r e a r y a r d a n d i n n o c a s e are l e s s t h a n 5 f e e t f r o m a f l a n k i n g street, s u b j e c t a l s o 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 t h i s B y - l a w ; (c) t h e t o t a l a r e a o f a l l a c c e s s o r y b u i l d i n g s i s n o t g r e a t e r t h a n 35 p e r c e n t o f the m i n i m u m rear yard prescribed i n this S c h e d u l e , or 5 2 0 s q u a r e feet, w h i c h e v e r is t h e 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 yard o f a n y lot is o c c u p i e d b y a c c e s s o r y b u i l d i n g s .  2.2.D  •  One-family  Dwelling.  3  Conditional Approval Uses  3.1  S u b j e c t to all other p r o v i s i o n s of this 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 provisions a n d regulations of this S c h e d u l e , the D e v e l o p m e n t Permit B o a r d m a y approve a n y of the uses listed 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 additional  regulations  a s it m a y d e c i d e , p r o v i d e d t h a t b e f o r e 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 t h i s S c h e d u l e a n d t h e r e c o m m e n d a tions of any advisory groups, plan or guidelines approved by C o u n c i l for t h e area; a n d  1  RS-1  JUNE 1981  III  - 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 conversion 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 Bylaw. •  3.2.D  Community Centre or Neighbourhood House.  • 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 JUNE  1981  2  - 125 -  3.2.N  •  N e i g h b o u r h o o d G r o c e r y Store operating immediately prior to  J u l y 29. 1980. subject to the p r o v i s i o n s of Section 11.16 of this By-law. 3.2.P  3.2.S  •  Park or Playground.  •  Parking Area ancillary to a p r i n c i p a l u s e o n a n adjacent site.  •  P u b l i c Authority B u i l d i n g or u s e essential i n this District.  •  P u b l i c Utility.  •  S c h o o l (public or private), subject to the provisions of Section  11.8 o f this By-law. •  S o c i a l Service Centre operated by a non-profit society.  •  Special Needs Residential Facility, subject to the provisions o f  S e c t i o n 11.9.  3.2.T  •  Stadium or any similar place o f assembly.  •  T o u r i s t Court, subject to the provisions of Section 11.12 of this  By-law. •  T r u c k Garden, Nursery or G r e e n h o u s e for propagating and  cultivating.  4  Regulations A l l uses approved under Sections 2 a n d 3 of this District Schedule shall be subject to the f o l l o w i n g regulations:  4.1  SITE A R E A  4.1.1  T h e m i n i m u m site area for a one-family dwelling shall be 4,300 square feet.  4.1.2  W h e r e the site is less t h a n 32 feet i n w i d t h or less t h a n 3,600 square feet i n area, the design of a n y new dwelling shall first require the a p p r o v a l of the Director of P l a n n i n g or the Developm e n t Permit Board, as the case m a y be.  4.2  FRONTAGE —  Not Applicable  4.3  HEIGHT  4.3.1  T h e m a x i m u m height of a b u i l d i n g shall be the lesser of 35 feet or 2 h storeys. x  3  RS-1 JUNE  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.  JUNE  1981  4  -  4.7.3  127 -  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 maximum 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 JUNE  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 JUNE  1981  6  - 129 -  A P P E N D I X  IV  3. DOWNTOWN DISTRICT OFFICIAL DEVELOPMENT PLAN BY-LAW (a) By-law N o . 4912 — Being an Official Development Plan By-law (b) Schedule " A " — D o w n t o w n Z o n i n g (ii) Official Development Plan  1  DD J U N E  1981  -  130  -  (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.  T h a t certain document entitled " D o w n t o w n  Z o n i n g (ii)  official development  p l a n " , dated O c t o b e r 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 C i t y o f Vancouver which has been rezoned as " D o w n t o w n District ( D D ) " by Bylaw N o . 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  -  131  -  (b) S c h e d u l e A Downtown Zoning (ii) Official Development Plan T a b l e of C o n t e n t s Page Application and Intent  4  Interpretation  6  Definitions  6  Section 1 — Land U s e  7  Section 2 — Retail U s e Continuity  7  Section 3 — Density  7  Section 4 — Height of Buildings  1  Section 5 — Parking and Loading  11  Section 6 — Social and Recreational Amenities and Facilities  14  3  D  1  D  JUNE 1981  -  132  -  Official Development Plan for the Downtown  APPLICATION A N D INTENT A By-law to regulate the development o f that part of the C i t y of Vancouver for which the Z o n i n g District is described as " D o w n t o w n District ( D D ) " .  DD JUNE 1981  4  - 133 -  T h e D o w n t o w n District is the regional centre of commercial development. It contains the greatest concentration of the working and shopping public within the region. T h e well-being o f this concentration of people requires more than the customary regulatory mechanisms in order that the buildings, the open spaces, the streets, the transportation systems, and other components of the urban scene can be arranged appropriately for the benefit of the general public. T h e intent, in the adoption o f this Official Development Plan and the accompanying guidelines, is as follows: (1) T o improve the general environment o f the D o w n t o w n 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 o f design and amenity for the benefit o f all users o f the D o w n t o w n . (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 o f the Greater Vancouver Regional District as referred to in " T h e Livable Region 1 9 7 6 / 1 9 8 6 " 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, discouraging automobile usage for journeys to work, and by maintaining automobile access for non-work trips including shopping, business and entertainment.  T h e Official Development Plan By-law provides the general framework for the preparation o f development plans for all individual buildings or complexes of buildings. Development Permit Applications will be made in accordance with the procedures in the Z o n i n g and Development By-law N o . 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 o f discretion is also given to the Development Permit Board in the interpretation of regulations, policies, and guidelines. Guidelines approved by C o u n c i l form an integral part of the development control procedure 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 o f such guidelines has been fulfilled.  5  DD J U N E 1981  - 134 -  Interpretation A distinction is drawn in this By-law between regulations and interpretation ments, as follows:  require-  1.  Regulations are set o u t f o r land use; m a x i m u m standards for building density in terms o f floor space ratio; m a x i m u m standards for parking and m i n i m u m requirements for loading.  2.  Interpretative requirements are set out with respect to the permitted height o f buildings, social and recreational amenities and facilities.  In the design a n d / o r approval o f individual developments variations are permitted in the interpretative requirements.  definitions " F l o o r Space R a t i o " 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 o f the site; E x c l u d e d 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 o f Planning. " H o t e l " shall mean a " h o t e l " or " m o t e 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. " L i g h t 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 O f f i c e , Retail or other Commercial Uses as well as the Residential use of the D o w n t o w n District, " O f f i c e C o m m e r c i a 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 sexoriented products without the approval of the Development Permit Board. "Other Commercial" shall mean any other commercial use not being "Retail" or "Office", provided that such use shall not include the sale of sex-oriented products without the approval of the Development Permit Board. "Retail C o n t i n u i t y " 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 frontage unless they otherwise provide approved retail continuity.  DD JUNE 1981  6  - 135 -  Section 1 L a n d Use F o r many years only commercial (with some light industrial) uses have been permitted throughout the D o w n t o w n . In order to increase the variety, amenity, and safety of D o w n t o w n , well-designed residential uses will be both permitted and encouraged throughout the D o w n t o w n . A mix o f uses within single developments or in neighbouring sites is also permitted and encouraged. T h e 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 O p e n 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. T h e 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 D o w n t o w n .  Section 3 Density Vancouver's D o w n t o w n is and will remain the highest-density commercial area within the C i t y and within the Greater Vancouver Region. However, in order to achieve objectives which include:  7  DD JUNE 1981  - 136 -  DD JUNE 1981  -  137  -  —  138  -  —  participation with and encouragement o f the Greater Vancouver Regional District's policies for Regional T o w n Centres,  —  encouragement o f residential use within the D o w n t o w n ,  —  encouragement of a mixture of uses in single developments, and  —  high standards o f design throughout the D o w n t o w n ,  the permitted m a x i m u m density is varied throughout this District. 1.  Subject to conformity with the guidelines, and clause 3 below, the maximum permitted 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-residential 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-residential 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-residential use shall be floor space ratio 5.00; however, for every square foot of residential 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 m a x i m u m 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-residential use shall be floor space ratio 4.00; however, for every square foot of residential floor area, an additional square foot o f 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 m a x i m u m density for any non-residential use shall be floor space ratio 2.00; however, for every square foot of residential floor area, an additional square f o o t o f 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 commercial 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 T h e height of buildings shall not exceed the height limits shown on Map 3, except as follows: 1.  T h e Development Permit Board may, in its discretion, permit buildings which exceed the prescribed height limits, after taking particular account of the overshadowing, view obstruction, and other environmental c r i t e r i a j e t 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 D o w n t o w n .  Section 5 Parking and Loading Traffic congestion detracts from the general amenity o f the D o w n t o w n . 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. T h e following requirements are intended to reduce commuter parking to a minimum and to permit parking to serve only the other essential needs o f D o w n t o w n activity: 1.  T h e 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) T h e provision o f parking within the area denoted by the letter ' A ' o n Map 4 shall not exceed: (i)  O f f i c e C o m m e r c i a l — not m o r e than o n e s p a c e 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) T h e provision of parking within the area denoted by the letter ' B ' on the map shall not exceed: (i)  O f f i c e C o m m e r c i a l — not more than o n e 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 Z o n i n g and Development By-law N o . 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 noncommuter 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 provided 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) (ix)  II.  libraries (public) other uses of a public service, social or recreational nature, which, in the opinion of the Development Permit Board, are similar to the above.  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) d)  the rental value of the increased floor area; 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 PLANS, P O L I C I E S , 1  V O L U M E  V  AND G U I D E L I N E S  -  1<??Z-  C I T Y - W I D E  Ok Z Z .  CONTENTS  TITLE  (Publication  Date)  STATUS  (Approval  Date)  RESIDENTIAL A.  Demolition  B.  D e s i g n G u i d e l i n e s f o r New D e v e l o p m e n t 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 H o u s e s (198JD  Not  Approved  C.  Guidelines f o r M u l t i p l e Conversion D w e l l i n g s i n One- a n d T w o - F a m i l y Dwelling D i s t r i c t s ( I n A r e a s Zoned RS-2,  Not  Approved  RT-1, D.  Control  Guidelines  (1981)  Approved  ( A u g u s t 12, I98O)  RT-1A, RT-2, RT-2A) (1980)  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)  Approved  E.  G u i d e l i n e s f o r Townhouse a n d A p a r t m e n t Development i n RT-2 a n d RT-2A Z o n e d Areas ( r e v i s e d 1979)  A p p r o v e d ( M a r c h 20 a n d S e p t e m b e r 11, 1979)  F.  Housing F a m i l i e s  Approved  ( O c t o b e r 31,  G.  L o c k e d - i n L o t s (1982)  Approved  ( J u n e 23,  196A)  H.  Narrow  Approved  ( M a r c h k,  I98O)  I.  Residential  Routes  Approved  ( M a r c h 23,  (I98I)  A p p r o v e d ( A u g u s t 2k, 1976 , r e a f f i r m e d November 17, 1981)  a t High D e n s i t i e s  Lots and T h i n  Houses  (1978)  (1980)  Rezoning and Truck  12 a n d  (February  M a r c h 18, I98O)  1378)  1382)  (1982)  J.  Townhouses  i n RS-2 Z o n e d  Areas  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)  A p p r o v e d ( J u n e 15, 1982) b a s i s f o r r e z o n i ng.  as  COMMERCIAL L.  Cabaret G u i d e l i n e s  M.  Neighbourhood  (1982)  Grocery Store  Guidelines  Approved  (September  Approved  (July  (1980)  29,  1381)  23, I98O)  *  Approved  (July  17,  1373)  Approved  (April  26,  1977)  P a r k i n g F a c i l i t y Design G u i d e l i n e s and S t a n d a r d s (1976)  Approved  ( O c t o b e r 5,  Self-Serve  Approved  (March 23,  N.  Neighbourhood  0.  Offices  P. 0..  Pub G u i d e l i n e s  in Industrial  Gasoline  Areas  (1982) (1977)  S t a t i o n s (1982)  1376) 1382)  MISCELLANEOUS R.  Strata  Title  Conversion Regulations  (1381)  S.  Views  from B r i d g e s  Policy  (1382)  A p p r o v e d (May 2 3 , 1373 a n d J u l y 2 1 , 1381) Approved  (August  15,  1378)  - 145 -  PLANS, P O L I C I E S , 2  V O L U M E  AND  GUIDELINES  C E N T R A  L  Ob  A R E A  XT-  CONTENTS  TITLE  (Publication  Date)  STATUS ( A p p r o v a l  Central  A r e a P e d e s t r i a n Weather  Central  Broadway Urban  (1979)  Design  Protection  ( 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) False Creek P o l i c i e s  G r a n v i l l e Island: F a l s e Creek Area  R e f e r e n c e Document f o r  9 (1978)  Square  Character Area  Robson  Street  1000  (1977)  (1982)  - 1200  West End P l a n n i n g Gu i d e 1 i nes  Policies  Yaletown  (1982)  Policies  1978)  A p p r o v e d ( M a r c h 23, 1 9 7 6 ; Amended F e b r u a r y 22, 1977)  A p p r o v e d ( D e c e m b e r 1 6 , 1975, November 9, 1976, A u g u s t 15, 1978, F e b r u a r y 3, 1981, A p r i l 6, 1982)  and G u i d e l i n e s  Robson  ( D e c e m b e r 12,  A p p r o v e d ( S e p t e m b e r 30, 1975 a n d December 1 6 , 1975; Amended May 10, 1977 a n d J a n u a r y 2 6 , 1982  (1982)  Fairview Slopes P o l i c i e s (1982)  Approved  Date)  Guidelines  Block  Inclusive  and D e s i g n  A p p r o v e d ( J u n e 1 a n d S e p t e m b e r 21 1976; R e a f f i r m e d M a r c h 9, 1982) Approved  Not  (April  18,  1978)  Approved  Approved  (January 26,  1982)  A p p r o v e d (May 13 a n d 27, Amended J u l y 8, 1975) Approved May 11,  ( J a n u a r y 26 a n d  1982)  1975;  - 146 V O L U M E  L O C A L  A R E A S  CONTENTS  TITLE  (Publication  j f i j V L  Date)  -Z.2-  Ob  STATUS (Approval  Date)  Champlain H e i g h t s Implementation Report Development o f Areas E and F ( 1 9 7 M  Approved  (May 6, 1975)  City-Owned Lands 5th £ Renfrew, 7th & K a s l o , Design G u i d e l i n e s (1982)  Approved  (June  F i r s t Shaughnessy Design (1982)  Approved  (May ] I, 1932 )  Approved  (August  Grandview-Woodland Area P l a n , P a r t 1: Grandview-Victoria (Single-Family, Duplex, and C o n v e r s i o n A r e a s ) (1979)  Approved  (June  Grandview-Woodland Area P o l i c y P l a n , P a r t 2; Commercial D r i v e (1982)  Approved  (November  Kerrisdale  Approved  (October  7,  Approved  (October  17,  F r a s e r S t r e e t Study Avenue (1980)  Kingsway (1982)  Residential  Guidelines  Kingsway  Zoning  to 37th  (1982)  East P o l i c i e s and S i t e  Guidelines  1 , 1982)-  26, I98O)  12, 1979)  K i t s i l a n o Design G u i d e l i n e s : and Commercial Areas (1977)  Apartment  Approved  (July  K i t s i l a n o Neighbourhood P l a n Addendum (1980)  (1977) and  Approved  (various  Approved  (December  (I98O)  Approved  (October  Plan  Approved  (November  Kiwassa Land Use and Zoning The Marpole  Plan  (1982)  (1979) and Summary  Puget and E d d i n g t o n Lands Development Design G u i d e l i n e s (1980) Shaughnessy H o s p i t a l (1982)  Area Rezoning  Policy  South E a s t Marine Lands E a s t P r e c i n c t Development Plan (Revised 1980)  k,  I98O)  1980) 1978)  12, 1977)  dates)  k,  1979)  30, 1979) 18,  1980)  Approved (February 20 and May 15, 1979, r e a f f i r m e d March 9 , 1982) Approved  (August  12, 1980)  1  A P P E N D I X  7  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 B o a r d " 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 B o a r d " (hereinafter referred to as the " B o a r d " ) 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 o f the other so that, should any section be declared invalid, then such section shall be severable.  3.  T h e Board shall consist of the following persons: (1) F r o m 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) T h e 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  VI  - 148 -  5.  T h e Advisory Panel shall consist o f six persons to be appointed by C i t y C o u n c i l , of which two shall be representatives of the development industry, two representatives o f the development professions and two representatives of the general public. T h e term o f office o f 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. A l 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. N o person shall be appointed to the Advisory Panel if such person: —(i)  is an alderman; is an employee o f the city, or otherwise holds an elected office;  (ii) is not an elector or has not resided in the C i t y for at least six months immediately preceding his appointment; (iii) is not a Canadian citizen. 6.  T h e 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 submitted to the Board, and it shall attend and participate in all meetings of the Board as provided in Section 3.  7.  A n y member of the Board with the approval o f C o u n c i l is hereby authorized to deputize a person to act on his behalf at any meeting o f the Board.  8.  Subject to the provisions of this by-law, the Board shall determine its own procedure 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. T h e 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.  T h e 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) A r 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 C i t y of Vancouver on the 24th day o f June, 1975, and numbered 4876. CITY C L E R K . "  APPENDIX Vr JUNE 1981  2  

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