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Land use contract : its validity as a means of use and development control Porter, Brian John 1973

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THE LAND USE CONTRACT: ITS VALIDITY AS A MEANS OF USE AND DEVELOPMENT CONTROL by BRIAN JOHN PORTER M.A., U n i v e r s i t y of B r i t i s h Columbia, 1973 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS i n the School of Community and Regional Planning We accept t h i s t h e s i s as conforming to the requ i r e d standard THE UNIVERSITY OF BRITISH COLUMBIA May, 1973 In presenting t h i s thesis i n p a r t i a l f u l f i l m e n t of the requirements for an advanced degree at the University of B r i t i s h Columbia, I agree that the Library s h a l l make i t f r e e l y available for reference and study. I further agree that permission fo r extensive copying of t h i s thesis for scholarly purposes may be granted by the Head of my Department or by h i s representatives. It i s understood that copying or publication of t h i s thesis for f i n a n c i a l gain s h a l l not be allowed without my written permission. Department of C o m m o n ' i f ^ ^ ^ e C U Q f i a A ^ k v r v r v \ n c ^ The University of B r i t i s h Columbia Vancouver 8, Canada Date ftVuv 3> . 1 ^ 7 ^ ABSTRACT Since the i n t r o d u c t i o n i n e a r l y 1971 of the Land Use Contract - S. 702A of the B.C. M u n i c i p a l Act - few, i f any, stu d i e s have been devoted to i t s p r a c t i c a l a p p l i c a t i o n s . This paper t h e r e f o r e attempts both a survey and a n a l y s i s of the use and i m p l i c a t i o n s of S. 702A. Questionnaires were used to c o l l e c t data from a l l Regional D i s t r i c t s and some f i f t e e n l a r g e r m u n i c i p a l i t i e s . Although r e s u l t s i n d i c a t e d a wide and v a r i e d usage, there was l i t t l e evidence of a s t r o n g l y demonstrated need f o r a new form of land c o n t r o l . Both the planners and a d m i n i s t r a t o r s to whom the questionnaires were d i r e c t e d , and by t h e i r evidence the general p u b l i c , misunderstood and are confused by the new p r o v i s i o n s . However, fewer problems than a n t i c i p a t e d were apparantly encountered i n the use of S. 702A, and i n i t i a l r e l u c t a n c e to u t i l i z e the l e g i s l a t i o n i s d i s s i p a t i n g . By reference to American zoning and B r i t i s h development c o n t r o l methods, i t was determined that the Land Use Contract i s a form of development c o n t r o l , s i m i l a r to Ontario p r a c t i c e s and not u n l i k e the B r i t i s h example. I t can be used to considerable advantage i n the planning process, p a r t i c u l a r l y where f l e x i b i l i t y and inn o v a t i o n are desired,so long as i t i s used, as w i t h a l l development c o n t r o l , i n accordance w i t h a comprehensive p l a n . i i i TABLE OF CONTENTS •CHAPTER PAGE I INTRODUCTION 1 ±1 A REVIEW OF LAND USE AND DEVELOPMENT CONTROL k The Beginnings 4 American Zoning 6" Origins and Development 6 An Analysis of Function 10 British Development Control 15> Legislative History 15> The Present Act 22 Conditions of Planning Permission 27 A Comparison of American and British Land Use and Development Policies 31 Land Use and Development Control i n Canada 36 Factors 36 Status 39 Evaluation kh Land Use and Development Control and The Comprehen-sive Plan 50 III AN ANALYSIS OF THE ZONING PROCESS $1 Zoning: Its Practical Failures and Theoretical Deficiencies 57 Theoretical Deficiencies £8 Practical Failures 60 Solution No. 1: The Elimination of Zoning and Private Land Use Controls 63 Solution No. 2: The Introduction of Flexible Technique to Modify Zoning 66 i v TABLE OF CONTENTS CHAPTER ' PAGE Spot Zoning 67 The Variance 69 The Exception 71 The Floating Zone 72 A Prognosis 7I4. IV SOLUTION NO. 3: CONDITIONAL OR CONTRACT ZONING . 76 Contract Zoning Defined 76 Contract Zoning 78 Rezoning With Concomitant Agreement 79 Planned Unit Development 8 l Canadian Site Plan Control 8I4. The Status of Contract Zoning 87 Statutory Authorization 87 The Case Law 88 Legal Implications of Contract Zoning 89 • Analysis of Use 9£ Contract Zoning'and the Restrictive Covenant . 100 V THE LAND USE CONTRACT 102 The Introduction of 702A . 102 The Understanding of the Land Use Contract 108 The Use of the Land Use Contract 115 The Practical Considerations 12li Status 121+ •TABLE OF CONTENTS CHAPTER -PAGE -Form 127 ' Procedure 129 "The Land Use Contract as Development Control 133 VI CONCLUSION li+1 BIBLIOGRAPHY l U ? APPENDIX A - The Questionnaire 1!?8 LIST OF TABLES TABLE PAGE I Use of S.702A - 117 ±1 F a c t o r s f o r the Use of S . 702A 119 I I I Sub jec t s f o r S . 702A C o n s i d e r a t i o n 122 IV S . 702A Exper ience • 125 V S ta tus of Con t rac t A p p l i c a t i o n s ' 126 VI Comprehensive P l a n n i n g 138 ACKNOWLEDGMENT Mj foremost thanks and gratitude go to faculty advisors Brahm Wiesman, Acting Director and Associate Professor of the School of Community and Regional Planning, University of Br i t i s h Columbia, and William T. Lane, Part-Time Lecturer at the School and Municipal S o l i c i t o r for Richmond for their very valued assistance and advice. I am also grateful to the planners and administrators i n this province, whose general response was heartening and whose many help-f u l replies and suggestions were warmly appreciated. CHAPTER I THE LAND USE CONTRACT: ITS VALIDITY AS A MEANS OF USE AND DEVELOPMENT CONTROL. INTRODUCTION In A p r i l of 1971 a new means of secu r i n g l a n d use and develop-ment c o n t r o l was made a v a i l a b l e to m u n i c i p a l c o u n c i l s and r e g i o n a l d i s t r i c t boards i n B r i t i s h Columbia. The l a n d use c o n t r a c t was a comparatively i n n o v a t i v e attempt t o pr o v i d e a new and f l e x i b l e a l t e r n a t i v e t o zoning, and l i k e a l l new techniques i s c h a l l e n g i n g t r a d i t i o n a l con-cepts of l a n d tenure, use and c o n t r o l . I t became apparent however t h a t many plan n e r s , a d m i n i s t r a t o r s and m u n i c i p a l s o l i c i t o r s were at f i r s t somewhat l o a t h e t o u t i l i z e S.702, and t h a t a survey and a n a l y s i s of general use would be of b e n e f i t and a s s i s t a n c e t o t h e i r p r o f e s s i o n s . Consequently, a n a l y s i s of the l a n d use c o n t r a c t proceeded from an a d m i n i s t r a t i v e p o i n t of view and tended t o concentrate on the p r a c t i c e and use of S. 702A r a t h e r than the terms of the l e g i s l a t i o n . Questionnaires were forwarded t o some f i f t y p l anners and a d m i n i s t r a t o r s i n r e g i o n a l d i s t r i c t s and m u n i c i p a l i t i e s throughout the pro v i n c e . Because there was r e l a t i v e l y l i t t l e i n d i c a t i o n or understand-i n g of the o r i g i n a n d . r a t i o n a l e of the l a n d use c o n t r a c t l e g i s l a t i o n , i t was determined t h a t a b e t t e r awareness of i t s i n t e n t and use c o u l d 2 be obtained through a study of existing zoning methods and their relative degree of success or failure in land development and use con-t r o l . Canadian and American practices were analyzed, with particular attention to the increasing use of contract or conditional zoning in the United States. It was apparent that S.702A bore many similarities to British Development Control legislation, and the practice there together with other Canadian examples of development control, was studied in i t s own right and i n comparison with zoning. The land use contract was analyzed as a similar form of development control, and a number of conclusions were drawn, and some problems were aired, and attempts were made to determine the genre and scope of the new legislation. While S. 702A has obvious relevance for the planners and administrators i n their province, i t also has a wider public impact as a means of controlling land, and for i t s effect on theories of land tenure. As E.T. Rashleigh, former director of the Community Plannering Association of Canada, B.C. Branch, has observed: "Private land ownership i s so sacrosanct in public opinion and law, that i t can question the propriety of planning proposals and defeat legitimate community objectives." Rashleigh, 1968, 203-Legislation purporting to exercise constraint over the use of private land thus has particular relevance to the general public. Allen Leal, Dean of Osgoode Hall's Law School, has characterized this situ-ation ': "In no other area of the law do public interest groups and private rights come to grips so strikingly as they do in the area of zoning legislation." Leal, I960. Land use contract legislation, by i t s nature, appears to have an especially significant effect on these rights and the importance of understanding those effects cannot be understated. Nonetheless, as radical or innovative as S.702A might seem, i t should not be considered in a vacuum. There i s evidence, for instance, of a clearly evolving trend in the United States towards use of control methods akin to the British legislation. Heyman sees an increasing American preference for individualized regulation of proposed developments, the shifting of public costs to the developer who creates them, and the public stimulation of developments which reflects better amenities and a relationship between different uses. (Heyman, 1 9 7 0 , 25) Similar achievements appear to be attainable through use of the land use contract, making the B.C. legislation a front-runner amongst innovative and flexible development and land use control techniqu CHAPTER I I REVIEW OF LAND USE AND DEVELOPMENT CONTROL' THE BEGINNINGS OF LAND USE CONTROL The c o n t r o l and use o f l a n d had f o r c e n t u r i e s been considered as a p u r e l y p r i v a t e concern of the land-owner, and few n a t i o n a l governments dared t o consider otherwise. Before c o n d i t i o n s changed t o f i n a l l y permit the i n t r o d u c t i o n o f zoning and development c o n t r o l s - s t a t u t o r y instruments d e r i v i n g t h e i r a u t h o r i t y from n a t i o n a l or s t a t e and p r o v i n c i a l l e g i s l a t i o n , use c o n f l i c t s were determined by r i g h t s of p r i v a t e a c t i o n . The law of nuisance, f o r i n s t a n c e , w i t h i t s common-law r o o t s i n B r i t a i n , saw e a r l y a p p l i c a t i o n i n North American s i t u a t i o n s and, without the n e c e s s i t y of l e g i s l a t i v e a u t h o r i t y , p e r m i t t e d a s u i t i n negligence f o r damage occasioned by such t h i n g s as noxious fumes and dust emanating from neighbouring p r o p e r t i e s . I n determining the r i g h t s of the p a r t i e s i n the s u i t , the c o u r t s would r e g a r d the reasonableness o f the o f f e n s i v e under-t a k i n g as w e l l as the nature of extent o f the harm and the s o c i a l value of the type of use i n v o l v e d (Pooley, 1961, ho), and f r e q u e n t l y f e l t disposed t o grant i n j u n c t i o n s r e s t r a i n i n g the use complained o f . ( M i l n e r , 1963, 5-9) The f i r s t i n t r o d u c t i o n of any form of s t a t e or n a t i o n a l i n t e r v e n -t i o n eame w i t h l e g i s l a t i o n c o n f e r r i n g a u t h o r i t y on c i t i e s t o d e c l a r e c e r t a i n types of l a n d uses as " p u b l i c nuisances", even though they might not be so per se (Pooley, 1961, 40) and i n B r i t a i n , other p u b l i c h e a l t h ordinances. On t a r i o , f o r example, had by 1877 determined t h a t " s l a u g h t e r houses, gas works, t a n n e r i e s , d i s t i l l e r i e s . . . c a t t l e and swine" might c o n s t i t u t e nuisances (RSO, 1877, C. 174, S. 466), and s i m i l a r l e g i s l a t i o n p e r m i t t i n g 5 l o c a l m u n i c i p a l i t i e s t o pass by-laws p r o h i b i t i n g such "Nuisances" s t i l l e x i s t s i n most s t a t e s and provinces.(see B.C. M u n i c i p a l A c t , S.870) While however common-law r i g h t s t o i n j u n c t i o n s and damages from nuisance only succeeded a f t e r the f a c t , p r i v a t e deed r e s t r i c t i o n s were i n s t i t u t e d as group attempts t o introduce l a n d use c o n t r o l by p r i v a t e arrangements. Instances were r e s t r i c t i v e covenants were used to assure common o b j e c t s and i n s u r e i n s u l a r i t y from u n d e s i r a b l e uses and s o c i a l groups are l e g i o n (see g e n e r a l l y , M i l n e r , 1963, 3U8-it6o), but represent another means of s e c u r i n g a form of use c o n t r o l without the n e c e s s i t y of d i r e c t l e g i s l a t i v e a u t h o r i t y . These e a r l y r u b r i c s o f nuisance and r e s t r i c t i v e covenant were, however, as M i l n e r explains, b a s i c a l l y u n s a t i s f a c t o r y as e f f e c t i v e l a n d use c o n t r o l s . ( M i l n e r , 1962, 2+6) Because they r e l i e d e s s e n t i a l l y on p r i v a t e and u n i l a t e r a l i n i t i a t i v e they were n e i t h e r uniform i n a p p l i c a t i o n nor c o n s i s t e n t l y e x e r c i s e d . Zoning and development c o n t r o l s , on the other hand, t r a n s f e r r e d t h i s i n i t i a t i v e t o the l o c a l c o u n c i l s and,' w h i l e e a r l y o r d i n -ances were oft e n apparently regarded as l i t t l e more than s t a t e s u b s t i t u t e s f o r b u i l d i n g schemes, they assumedly d i d secure a form o f u n i v e r s a l and c o n s i s t e n t a p p l i c a t i o n . While t h e r e f o r e both t he law of nuisance and p r i v a t e deed r e s t r i c t i o n s remain p o s s i b l e and are s t i l l b e i n g u t i l i z e d as means of secur-i n g use c o n t r o l , t h e i r general a p p l i c a t i o n i n North America and B r i t a i n has been more or l e s s r e p l a c e d by the p r e v a i l i n g modes of zoning and development c o n t r o l . 6 •AMERICAN ZONING 1. O r i g i n s and Development Although many American planners and zoning o f f i c i a l s have main-t a i n e d t h e i r own country as the n a t u r a l b i r t h p l a c e of zoning, i t appears t h a t the germ of modern zoning r e c e i v e d f i r s t nurture not i n the U.S., but i n Germany. There, during the 1 8 7 0 's, one Herr Baumeister a l l e g e d l y became the f i r s t a c t i v e advocate o f zoning, and the c i t i e s of A l t o n a i n I88I4. and Frankfort-Qn-the-Main i n 1891 became the f i r s t European centres t o a c t u a l l y implement any form o f "zoning" c o n t r o l s . (Lewis, 1949, 2£6) These e a r l y l a n d use ordinances were not u n l i k e present North American zoning enactments and were concerned w i t h the s e p a r a t i o n or i s o l a t i o n o f f a c t o r y d i s t r i c t s from r e s i d e n t i a l use areas, l o t coverage, s t r e e t use and the h e i g h t s , l o c a t i o n and use of b u i l d i n g s . Other c i t i e s i n Europe, most n o t a b l y i n Germany and the B r i t i s h I s l e s , were a l s o u t i l i z i n g r e s t r i c t i o n s on the height of b u i l d i n g s , but none attempted the use s e p a r a t i o n and c o n t r o l on the s c a l e o f A l t o n a and F r a n k f o r t . ( L e w i s , 19k9, 256) American c i t i e s d i d not r u s h t o implement t h i s new German c r e a t i o n designed t o c o n t r o l use, and the f i r s t steps i n t o the f i e l d were cautious and h e s i t a n t . A number of c i t i e s had already employed some form of c o n t r o l over b u i l d i n g h e i g h t , and Boston had r e c e i v e d j u d i c i a l approval f o r i t s b a s i c two-zone system when, i n 1909,, the c i t y of Los Angeles became the f i r s t t o attempt the more ext e n s i v e of c o n t r o l which heralded modern zoning. (Pooley, I 9 6 I , kh) Devised p r i m a r i l y t o provide some p r o t e c t i o n t o r e s i d e n t i a l areas from the encroachment and e f f e c t s of l e s s d e s i r a b l e uses, t h i s new means of use segregation, c a l l e d " d i s t r i c t i n g " by i t s proponents, saw adoption i n the p e r i o d 1910-1915 by the S t a t e s of Massachusetts, New York, Minnesota and Wisconsin and a number o f North American c i t i e s i n d u -i n g S e a t t l e , Milwaukee and Toronto.(Lewis, 19h9, 259) By 1912 some degree of p u b l i c c o n t r o l and s u p e r v i s i o n of l a n d use seems t o have been an accepted f a c t i n a number of American c i t i e s , and i t was not t h e r e f o r e unusual f o r the C i t y of New York, even by t h i s time the p e r s o n i f i c a t i o n of urban problems, t o i n i t i a t e a search f o r a new and more e f f e c t i v e means of c o n t r o l l i n g and d i r e c t i n g urban growth and development. A c t i v a t e d by current and much-evident problems of over-crowding, incompat-i b i l i t i e s of use and attendant nuisance i s s u e s , and apparently spurred on by the demands of a " b u l l i s h market f o r o f f i c e development" (Mandelker, 1970, 15) New York's Board of Estimate and Appointment was commissioned i n 1913 t o f i n d a s o l u t i o n . Under the Chairmanship of E.M. Basset, a prominent New York a t t o r n e y , a committee was st r u c k w i t h the task of i n v e s t i g a t i n g and d e v i s i n g new means of g r a p p l i n g w i t h these emergent urban problems, and was d i r e c t e d s p e c i f i c a l l y t o examine and compare the p r a c t i c e and experience U.S. c i t i e s w i t h those abroad.(Lewis, 1949, 259) I t h e l d a number of p u b l i c hearings and s t a t i s t i c a l f o r a y s , and i n 1913 d e l i v e r e d i t s r e p o r t . Although the committee had at f i r s t considered a form of e x p r o p r i a t i o n as the s o l u t i o n , t h i s proposal was abandoned as being too c o s t l y ( M a k i e l s k i , 1967, 12) and the r e p o r t i n s t e a d gave s t r o n g and uni q u i v o c a b l e support t o the need and reasonableness of e s t a b l i s h i n g d i s t r i c t s f o r the purpose of r e g u l a t i n g not o n l y use, but a l s o h e i g h t , coverage, and the p r o v i s i o n of open space. The r a t i o n a l e was "greater s a f e t y and s e c u r i t y t o investment secured by d e f i n i t e r e s t r i c t i o n s . " ( L e w i s , 19^9, 260) 8 As a d i r e c t and p r o p i t i o u s r e s u l t of the r e p o r t ' s primary recommendations, the New York S t a t e L e g i s l a t u r e , through d e l e g a t i o n of the s t a t e p o l i c e power, au t h o r i z e d New York C i t y t o e s t a b l i s h d i s t r i c t s and t o impose he i g h t , area and use l i m i t s f o r each d i s t r i c t so constructed. Another Committee was s t r u c k , again w i t h B a s s e t t as Chairman and i n c l u d i n g most of the o r i g i n a l members r e p r e s e n t i n g both p r i v a t e and p u b l i c s e c t o r s , and was i n s t r u c t e d t o recommend the boundaries and r e g u l a t i o n s . A f t e r i n t e n s e p r e p a r a t i o n and much p u b l i c p u l s e - t a k i n g , a l b e i t a s s i s t e d by the e n t h u s i a s t i c r e a l - e s t a t e i n t e r e s t s who pr e c e i v e d c e r t a i n b e n e f i t s t o t h e i r own p r o f e s s i o n (Lewis, 19h9, 26l), the Committee submitted i t s t e n t a t i v e r e p o r t , and w i t h i t s f i n a l approval i n J u l y of 1916,zoning a r r i v e d i n North America. The decade or so t h a t f o l l o w e d the i n t r o d u c t i o n of New York's l e g i s l a t i o n has been c h a r a c t e r i z e d as "The Golden Age of Zoning" ( M a k i e l s k i , 1967, 8) and wh i l e i t s accomplishments may not n e c e s s a r i l y have been on an "El i z a b e t h a n " s c a l e , zoning d i d r e c e i v e c o n s i d e r a b l e p r o f e s s i o n a l a t t e n t i o n and undoubted p u b l i c acceptance. Although i t i s claimed t h a t the s u b t l e t i e s of zoning were, never c o r r e c t l y - u n d e r s t o o d by the general p u b l i c , ( M a k i e l s k i , 1967, 6) i t s p o p u l a r i t y zoomed during the 1920's. Recognizing t h i s e a r l y p o p u l a r i t y , acceptance, and general e f f e c t i v e n e s s of zoning, the U.S. F e d e r a l Government chose t o i n v e s t s u b s t a n t i a l l y i n t h i s new means of l a n d use c o n t r o l . The S e c r e t a r y of Commerce Herbert Hoover, as he then was, created an A d v i s o r y Committee on Zoning i n an attempt, i t i s claimed, t o encourage m u n i c i p a l adoption of zoning pla n s . I t was expected t h a t the r e s u l t s would encourage and 9 a t t r a c t the r e a l estate development of secure and protected r e s i d e n t i a l d i s t r i c t s , thereby r e l i e v i n g the current housing shortage.(Lewis, 194°, 262) This committee l o s t no time i n grasping the i n i t i a t i v e and by 1922 had prepared t h e i r Standard Zoning Enabling Act, designed as a model f o r easy a p p l i c a t i o n by a l l American m u n i c i p a l i t i e s . The act, f i n a l l y published i n 1926, has i n f a c t proven to be remarkably durable, and s t i l l remains the b a s i s of the majority of present municipal zoning statutes. Cunningham, 1969, 369) By 1930, four years a f t e r i t s p u b l i c a t i o n , some twenty-nine American states had adopted the Act (Plager, 1968, 3h) and by 1946 over 1,500 zoning ordinances authorized i n a l l f o r t y - e i g h t states were i n f u l l effect.(Lewis, 19U9, 262) In 1971 the American Law I n s t i t u t e i n t h e i r d r a f t of the Proposed Model Land Development Code, the f i r s t major e f f o r t to modernize the premise of the o r i g i n a l act, noted "The Standard State Zoning Enabling Act of 1922...reflects with remarkable accuracy the e x i s t i n g law i n almost a l l of the f i f t y states".(ALI, 1971, x i ) There was very l i t t l e a l t e r a t i o n i n the structure or p r a c t i c e of American zoning during the 1930's. Nonetheless, while the depression and inter-war b u i l d i n g slump contributed importantly to t h i s r e l a t i v e i n e r t i a , i t has been noted that even where the circumstances d i c t a t e d major urban renewal programs and l e g i s l a t i o n , no r e a l attempts were ever made t o devise al t e r n a t e or complementary planning devices to meet t h i s demand, and zoning held the f i e l d completely and i n a l t e r a b l y . ( M a k i e l s k i , 1967, 8) Not only had zoning achieved general popular acceptance by t h i s time, but i t had a l s o obtained, f o r a v a r i e t y of reasons, appreciable p o l i t i c a l espousal. With t h e r e f o r e both p o l i t i c i a n s and the p u b l i c a l i k e l a u d i n g the g l o r i e s o f zoning, change became u n l i k e l y . Zoning f l o u r i s h e d everywhere though, as one author c a u s t i c a l l y comments, "with always enough hold-outs t o preserve the t a n t a l i z i n g image t h a t t o t a l r e v o l u t i o n s t i l l had not been achieved." ( M a k i e l s k i , 1967, 8) Nonetheless and d e s p i t e t h i s evidence o f enduring p o p u l a r i t y , zoning i n the 19^0's began t o atrophy and show s i g n s of the l i n g e r i n g malaise which continues today t o be v a r i o u s l y and d i v e r g e n t l y diagnosed. While the p o l i t i c i a n s , s u s t a i n e d i n t h e i r b e l i e f by apparent evidence of p u b l i c support, (Bryden, 1967, 287) e n t e r t a i n e d and i n i t i a t e d p r e c i o u s few i d e a s f o r e i t h e r the improvement or up-grading of zoning, or i t s replacement by more e f f e c t i v e means of l a n d use c o n t r o l , ( M a k i e l s k i , 1967,) the planners and zoners began t o recognize the symptoms o f weakness and i n e f f i c i e n c y i n the system. Some saw c l e a r i n d i c a t i o n s t h a t "zoning i s degenerating" ( B l u c h e r , 1955, 96) and i s " s e r i o u s l y i l l " (Reps, 196U, l ) , and a number of attempts were made e i t h e r to i n v e s t new l i f e i n t o the zoning t o o l or attempt t o circumvent i t s use completely. S p e c i a l Use D i s t r i c t s , a type o f s p e c i a l i z e d but s t r i c t c o n t r o l s f o r t h e a t r e d i s t r i c t s , a r t s centers and v a r i o u s h i s t o r i c a t t r a c t i o n s , although mainly l i m i t e d i n a p p l i c a t i o n t o New York C i t y , (Smith, 1969, WO were attempts t o acquire greater zoning c o n t r o l . G e n e r a l l y however most such p r o p o s a l s remained u n i n s t i t u t e d , stymied by the p a r t i c u l a r a t t i t u d e s and f u n c t i o n o f zoning. 2. An A n a l y s i s of Fu n c t i o n While the present f u n c t i o n of zoning may vary somewhat from B a s s e t t ' s o r i g i n a l d e l i n e a t i o n s , which were p r i m a r i l y aimed a t nuisance abatement, the b a s i c form and d e f i n i t i o n has remained g e n e r a l l y i n t a c t . In i t s b a r e s t d e s c r i p t i v e form zoning d e r i v e s i t s s t r u c t u r e from a l o c a l orinance or by-law passed under the a u t h o r i t y of the s t a t e ( o r province) and p r i m a r i l y designed t o accomplish both a c l a s s i f i c a t i o n o f use groups, and a d e s c r i p t i o n of standards f o r uses w i t h i n each c l a s s i f i c a t i o n . The r e g u l a t i o n i n t h i s form i s g e n e r a l l y p e r m i s s i v e and e s t a b l i s h e s r e g u l a t i o n s i n advance of the intended use, hence " p e r m i t t i n g " the uses or uses e l a b o r -ated f o r the p a r t i c u l a r zone c l a s s i f i c a t i o n . I t i s thus a form of 'pre-r e g u l a t i o n * , or sometimes, 'pre-zoning', though the l a t t e r phrase i s now more commonly used t o d e s c r i b e the c r e a t i o n of ' a g r i c u l t u r a l ' or other "lower-use" h o l d i n g zones. In the U n i t e d S t a t e s , the m u n i c i p a l power or a u t h o r i t y t o zone i s d e r i v e d only through s p e c i f i c s t a t e e n a b l i n g l e g i s l a t i o n , a u t h o r i z a t i o n by the s t a t e c o n s t i t u t i o n , o r i n a few i n s t a n c e s such as the case of P h i l a d e l p h i v i a s t a t e l e g i s l a t i o n g r a n t i n g 'home r u l e 1 and independence from s t a t e zoning l e g i s l a t i o n t o s p e c i f i c and enumerated m u n i c i p a l i t i e s . ( S t e i n , 1971, 536) T h i s a u t h o r i t y i s moreover both l i m i t e d by and dependent upon the " p o l i c e power" of the U.S. C o n s t i t u t i o n , t h a t l i t i g e o u s and much misunder-stood phrase i m p a r t i n g "a meaning and o r i g i n t o say the l e a s t , vague and i n d e f i n i t e . " ( M i l n e r , 1956, 130) Having no exact e q u i v a l e n t i n Anglo-Canadian law ( M i l n e r , 1956, 130) the p o l i c e power represents a form of r e s i d u a l s t a t e power e f f e c t i v e i n the absence of enumerated f e d e r a l powers and r e q u i r i n g o n l y t h a t r e g u l a t i o n s conform t o the d e f i n i t i o n of t h i s power as c u r r e n t l y j u d i c i a l l y d e f i n e d . L e s l i e S t e i n , a student of the m u n i c i p a l power t o zone e n c a s t u l a t e s the American law t h u s l y : "The g e n e r a l p r o p o s i t i o n e x i s t s t h a t a zoning ordinance t o be v a l i d must be reasonable 12 i n a p p l i c a t i o n , and have a s u b s t a n t i a l r e l a t i o n t o the p u b l i c h e a l t h , s a f e t y , morals, comfort and general w e l f a r e of the p e o p l e . " ( S t e i n , 1971, 537) While the i n i t i a l purpose of the New York l e g i s l a t i o n was t o prov i d e s o l u t i o n s f o r problems of nuisance and the i n c o m p a t i b i l i t i e s of uses, and t o a l l e v i a t e the i n t o l e r a b l y crowded c o n d i t i o n s of many r e s i d e n -t i a l areas, those r e s p o n s i b l e f o r the new l e g i s l a t i o n were a l s o c a r e f u l t o c h a r a c t e r i z e i t s p o t e n t i a l a b i l i t y t o i n s t i t u t e some form of s t a b i l i t y and p r e d i c t a b i l i t y i n the urban form.(Lewis, 19U9, 262) Undoubtedly t h i s a b i l i t y t o s t a b i l i z e community areas and achieve..."greater s a f e t y and s e c u r i t y t o investment secured by d e f i n i t e r e s t r i c t i o n s " (Committee Report i n Lewis, 19U9, 260) was l a r g e l y r e s p o n s i b l e f o r e a r l y p u b l i c acceptance of zoning. I n t h i s r e g a r d the o b j e c t of zoning remains u n a l t e r e d today, f o r i n I960 the Urban Land I n s t i t u t e was t o p r o c l a i m : "The C o u n c i l i s s t r o n g l y i n favour o f planning and zoning as b e n e f i c i a l instruments i n p r o t e c t i n g r e s i d e n t i a l neighborhoods a g a i n s t adverse use and i n s t a b i l i z i n g community development and l a n d values" (ULI, i960, 6l) Most c r i t i c s of zoning are f u l l y prepared t o acknowledge t h i s achievement of zoning, and rec o g n i z e the obvious e x i s t e n c e of both a p u b l i c and o f f i c i a l d e s i r e f o r some degree of u n i f o r m i t y i n standards and a c e r t a i n minimum of use r e g u l a t i o n s (Delafons, 1969, ), and f o r the p r e d i c t a b i l i t y and s t a r e d e c i s i s nature of zoning a d m i n i s t r a t i o n . They w i l l admit t h a t zoning, at the l e a s t , has been able t o e s t a b l i s h i t s e l f w i t h a c e r t a i n amount of l e g a l i t y and r e s p e c t a b i l i t y and has found general and major acceptance by the general p u b l i c . ( M a k i e l s k i , 1967, 3) In the res p e c t then t h a t zoning has been c h a r a c t e r i z e d as the "preserver and encourager of things: the community f i n d s d e s i r a b l e , " i t has continued the o r i g i n a l a s p i r a t i o n s of i t s c r e a t o r s and i s , " as M i l n e r notes, " h i s t o r y s u s t a i n e d " . ( M i l n e r L e c t u r e , A p r i l 5", 1968) Nonetheless and d e s p i t e these w e l l - t u n e d phrases, there i s some s u s p i c i o n t h a t the p u b l i c p o p u l a r i t y of zoning i s l a r g e l y due t o a p a r t i c -u l a r and s p e c i f i e d r e l i a n c e on the p r e s e r v a t i o n aspect and c a t e g o r i z a t i o n of zoning. Because the p r i n c i p l e of d i s t i n g u i s h i n g use c l a s s i f i c a t i o n s and the c r e a t i o n s of p h y s i c a l zones t o c o n t a i n them has tended t o place major importance on the i n t e r - f a c e and i n t e r - r e l a t i o n s between the categor-i e s , the i n i t i a l purpose however of p r o t e c t i n g r e s i d e n t i a l areas from " l e s s d e s i r a b l e " i n d u s t r i a l or commercial use o r , somewhat more e l e g a n t l y , " t o prevent the u n d e s i r a b l y r e s u l t s of the proximate l o c a t i o n of various disharmonious l a n d a c t i v i t i e s " ( D a v i d o f f s , 1971, 5l5), was e a s i l y extended t o exclude non-desirable r e s i d e n t i a l uses as w e l l . Thus, by zoning a neighbourhood i n such a manner so as t o preserve i t s " e s s e n t i a l c h a r a c t e r " , c e r t a i n segments of s o c i e t y c o u l d assumedly be enjoined from e s t a b l i s h i n g i n t h a t l o c a l e . Unfavourably d e s c r i b e d as e x c l u s i o n a r y zoning (Brooks, 1970 and Gibson, 1971) t h i s p r a c t i c e f l o u r i s h e d from the formative stages of zoning and, s u s t a i n e d w i t h the b l e s s i n g s of the p o l i t i c i a n s and r e a l - e s t a t e i n t e r e s t s , probably served as a p l a u s i b l e e x p l a n a t i o n f o r the p u b l i c accep-tance of zoning. Nonetheless, the use of zoning t o conserve, s t a b i l i z e arid enhance p r o p e r t y values came under attack as e a r l y as 1926 by Charles S t e i n , c r e a t o r of the Greenbelt Concept, (Weaver, 1965, 726) and the " s o c i a l p r o p e n s i t y t o form t i g h t l i t t l e i s l a n d s of r e s i d e n t i a l e x c l u s i v i t y " (Sager, 1969, 791) has r e c e i v e d renewed severe and t e l l i n g c r i t i c i s m w i t h i n the l a s t ten years. Yet, the public recognition of the a b i l i t y of zoning to preserve neighbourhood and property value appears to have received wide-spread support as a vali d function of the zoning process. An equally effective but perhaps less obvious explanation for the tenacity of zoning i s i t s particular popularity and association with the p o l i t i c a l elements.. One of the most notable distinctions between B r i t i s h land use control methods and the American experience i s the latter's inherent and entrenched distrust of administrative descretion. One theory explains that early c i v i c administrations were somewhat less than circumspect and tended to either use zoning as a tool to further their own ambitions or those of the politican (Reps, 1961i, k) or permitted the business community to use i t for the creation of their own personal geographic oligopolies.(Makielski, 1967, 7) Assisted by the conviction that "American local administration simply could not handle such responsibility" (Williams, 1971, 108), zoning gradually l e f t the preserve of the administration and became a more public, and hence p o l i t i c a l , method of control. Good arguments have been advanced for the p o l i t i c i s i n g of zoning. Makielski noted that because zoning i s so c r i t i c a l to the economic livelihood, and social aspirations of so many people, i t i s i n a sense a logical out-growth of and dependent upon the legal theory and institutional structure of local government (Makielski, 1°67, 20), and Heeter maintains that despite the "pessimistic view" which planners and zoners have of the p o l i t i c a l process, i t i s clear that the formulation and implementation of plans for a community's development i s a basic p o l i t i c a l decision and can only be successfully carried out " i f brought directly into the p o l i t i c a l 15 process".(Heeter, 1969, 68) There i s concern however that the evolution of zoning to a more p o l i t i c a l f u n c t i o n has meant that the planners have become, as one com-mentator described, "weak voices shunted to the peripheries of p o l i c y making".(Makielski, 1967, 8) C e r t a i n l y the planning profession i s no longer able to claim zoning as i t s own preserve and assumedly the function and r e l a t i o n s h i p of planning and zoning has changed considerably from t h i s a n a l y s i s of the s i t u a t i o n during the 1930's: "... f o r the almost s t i l l - b o r n planning profession i t was a lease on l i f e . At l a s t planners had a l e g a l t o o l with which they could bludgeon t h e i r sworn enemies, the r e a l - e s t a t e profession. No longer r e s t r i c t e d to planning boulevards and p u b l i c works pr o j e c t s , the planner was equipped f o r the enormous expansion of the p o l i c e power i n t o the realm of p h y s i c a l and s o c i a l planning by focusing on the t o t a l environment created by both public and p r i v a t e development". (Makielski, 1967, 7) However t h i s r o l e may have changed, the r e l a t i o n s h i p of zoning and planning remains a v i t a l function of the zoning process and w i l l continue to have a determining e f f e c t on the evolution of land use and development c o n t r o l . BRITISH DEVELOPMENT CONTROL 1. L e g i s l a t i v e H i s t o r y Development and land use i n the United Kingdom i s c o n t r o l l e d by a body of planning and a n c i l l i a r y l e g i s l a t i o n c o l l e c t i v e l y known as Develop-ment Control. The product of a long and sometimes t o r t i o u s evolution, development c o n t r o l e s s e n t i a l l y requires that a l l use change and develop-ment of land i n England, Wales and Scotland proceed only by way of permis-sion from l o c a l government sources. There i s no inherent r i g h t to 16 develop l a n d i n whatever f a s h i o n the owner might wish, and each a p p l i c a t i o n f o r permission t o develop l a n d or change i t s use i s regarded on i t s own i n d i v i d u a l m e r i t s . P r i o r t o the i n c e p t i o n of any form o f town planning or development c o n t r o l s i n B r i t a i n , the t r a d i t i o n a l concepts of the common law pe r m i t t e d an owner t o develop h i s own l a n d i n any way he d e s i r e d , so lon g as he d i d not i n f r i n g e upon the r i g h t s of oth e r s . Free and untrammelled e n t e r p r i s e was f e l t "necessary f o r n a t i o n a l p r o s p e r i t y " and any extension of government a c t i v i t y beyond what was considered i t s proper sphere would have been looked upon as "an encroachment on p e r s o n a l l i b e r t y and l i k e l y t o handicap i n i t i -a t i v e . "(U.K. , 1968, l ) The d i r e c t consequence however of t h i s absence of any p o l i c y f o r the o r d e r l y and c o n t r o l l e d development of l a n d was conges-t i o n i n the towns and e v e n t u a l l y , suburban sprawl. A need f o r some form of c o n t r o l was presumably p e r c e i v e d and i n 1909 the Housing, Town Pl a n n i n g A c t (9 Edw. 7, C. 44) was in t r o d u c e d i n an attempt t o somehow c u r t a i l t h i s t o t a l freedom of use. Under the terms of t h i s l e g i s l a t i o n , and as subsequently m o d i f i e d and extended by successive 1 a c t s , l o c a l a u t h o r i t i e s , being the c o u n c i l s of c o u n t i e s , county boroughs, non-county boroughs, urban d i s t r i c t s and r u r a l d i s t r i c t s (as opposed t o l o c a l p lanning a u t h o r i t i e s which i n c l u d e d the f i r s t two only)(Heap, 1964, 87), were empowered t o prepare town p l a n n i n g schemes a f f e c t i n g l a n d e i t h e r i n the course of development or appearing l i k e l y t o be used f o r b u i l d i n g purposes.(Heap, 1969, 5) Armed w i t h some power f o r general enforce-ment (Megarry & Wade, 1959, 1018), the l o c a l a u t h o r i t i e s were t o i n d i c a t e 11932 Town and Country P l a n n i n g A c t , 22 & 23 Geo. 5, c. 48 and 1944 Town  and Country P l a n n i n g A c t , 7 & 8 Geo. 6, c. 47. what development would be permitted i n each part of the land a f f e c t e d , with the express objects to secure: a) proper s a n i t a r y conditions, and b) amenity and convenience i n connection with the layout and use of the land and of any neighbouring lands. (Heap, 1969, 5) L e g i s l a t i o n i n 1932 extended t h e i r c o n t r o l to include the planning of bui l t - u p areas and land not n e c e s s a r i l y l i k e l y to be developed. (Heap, 1969, 7) The housing boom of the 1930's applied considerable pressure t o the effectiveness of the l e g i s l a t i o n and served to emphasize i t s two basic flaws: the act was op t i o n a l , and only a handf u l l of schemes were made operative by the l o c a l a u t h o r i t i e s (Barr, 196U, 163) and an extremely long p e r i o d u s u a l l y elapsed between the de c i s i o n of the l o c a l authority to prepare a scheme and i t s f i n a l approval (Megarry & Wade, 1959, 1019). This p e r i o d between consideration of the scheme and i t s f i n a l adoption was supposedly subject to a form of "interim development c o n t r o l " , and a developer who wished to b u i l d could obtain permission from the l o c a l a u t h o r i t i e s which would hold him i n v i o l a b l e even though his p r o j e c t might not be i n agreement with the scheme as f i n a l l y published. Nonetheless, because of the s i g n i f i c a n t time l a g p r i o r to the scheme's f i n a l approval and the f a c t that there were no enforcement provisions a v a i l a b l e within t h i s interim period, many developers apparently proceeded without interim permission, gambling that when the scheme was f i n a l l y approved they would have long gone with t h e i r profits.(Megarry & Wade, 1959> 1019) While the pr o j e c t could be subject to r a z i n g i f i t d i d not accord with the f i n a l 18 scheme and had not been granted i n t e r i m development permission, there were apparently very few i n s t a n c e s where enforcement f o l l o w e d . ( B a r r , 196k, 163) G e n e r a l l y , the 1909 A c t and s u c c e s s i v e amendments t o 1932 was considered " t i m i d and r e l a t i v e l y i n e f f e c t i v e " . (Megarry, 196i|, 218) I n attempts t h e r e f o r e t o c l o s e t h i s loop-hole and otherwise extend the l e g i s l a t i o n , P a r l i a m e n t approved the 1943 Town & Country P l a n n i n g  ( I n t e r i m Development) A c t , which au t h o r i z e d a c t i o n a g a i n s t a l l development which proceeded a t any time without t h i s i n t e r i m development permission. A l s o , s i n c e by t h i s time o n l y approximately 7k% of the country had as y e t e i t h e r a u t h o r i z e d schemes (70$) or i n s t i t u t e d i n t e r i m development c o n t r o l (k%) (Megarry & Wade, 1959, 1019) , compulsory i n t e r i m development c o n t r o l was imposed on the balance. L o c a l a u t h o r i t i e s were now empowered t o e i t h e r p e n a l i z e unauthorized uses or demolish unauthorized b u i l d i n g s ( S . 5 ) , thus a c h i e v i n g a system of t o t a l c o n t r o l and a v a i l a b l e enforcement p r o v i s i o n s against any development proceeding without permission. Despite t h i s apparent extension of the power-to c o n t r o l use and development, t h e r e appeared t o be a b a s i c and p r e v a l e n t d i s s a t i s f a c t i o n w i t h the theory of l a n d use c o n t r o l i n e f f e c t . Many f e l t t h a t the compulsory powers were not o n l y inadequate but f r a u g h t w i t h compensation l i a b i l i t i e s (U.K., 1968a, 2 ) , and a l t e r n a t i v e s were c a r e f u l l y considered. A number of r e p o r t s t h e r e f o r e emanated from s p e c i a l commissions meeting d u r i n g the war y e a r s , n o t a b l y the S c o t t Report of 1942 (The Committee on Land U t i l i z a t i o n i n R u r a l Areas) and the 1940 Barlow Report (The Royal Commission on the D i s t r i b u t i o n of the I n d u s t r i a l P o p u l a t i o n ) , and these attempted t o grapple w i t h the b a s i c p r i n c i p l e s of major l a n d tenure 19 and s u s t a i n e d p l a n n i n g problems. The most consequential suggestions how-ever, dependent on a " r a d i c a l and fundamental m o d i f i c a t i o n of p r o p e r t y r i g h t s " (Delafons, 1969, I n t r o d u c t i o n ) , came from the F i n a l Report by the Expert Committee on Compensation and Betterment, 19U2, b e t t e r known by the name of i t s Chairman, Mr. J u s t i c e Uthwatt. The 19U7 Town and Country P l a n n i n g A c t (10 & 11 Geo. 6, c. 51) and s i m i l a r l e g i s l a t i o n promulgated simultaneously f o r S c o t l a n d has been r e f e r r e d t o as " r a d i c a l and comprehensive" (U.K. 1968a, 2) I t d i r e c t l y i n c o r p o r a t e d the phi l o s o p h y of the Uthwatt Report, v i z : Ownership of l a n d i n v o l v e s d u t i e s t o the community as w e l l as the r i g h t s of the i n d i v i d u a l owner, and any increment i n the value of l a n d r e s u l t i n g from an a l t e r n a t e use, r e f e r r e d t o as the "development v a l u e " , should accrue d i r e c t l y t o the p u b l i c w i t h compensation t o the owner. By n a t i o n a l i z i n g the development values o f a l l land, the a c t e f f e c t i v e l y p e r m i t t e d the owner only h i s e x i s t i n g use and the value d e r i v e d thereby, and prevented the p r o f i t from any s i g n i f i c a n t i n c r e a s e i n l a n d v a l u e by circumstances not caused d i r e c t l y by t h a t owner. Before c a r r y i n g out any development f o r which planning permission was r e q u i r e d , the developer would now be r e q u i r e d t o remit t o the government's agency, the C e n t r a l Land Beard, a "development charge" equal t o the i n c r e a s e i n the value of the l a n d caused by the p l a n n i n g p e r m i s s i o n i n question. (Megarry & Wade, 1959, 1021*) Not s u r p r i s i n g l y , the i m p o s i t i o n of development charges was extremely unpopular w i t h the E n g l i s h developer who balked a t the high charges imposed on l a n d normally s u b j e c t t o wide f l u c t u a t i o n i n assessed value (Megarry & Wade, 1959, 1027). The government i t s e l f a pparently 20 ^came to regret the inflationary tendencies encouraged by the legislation and the fact that the public viewed the charge as a simple form of indirect taxation.(U.K., 1968a, 10) Thus i n 1953, ostensibly i n the fear that further retention of the development charges might act as a brake on development once the severe building restrictions of World War II were l i f t e d (U.K., 1968a, 10) the development charge legislation was repealed.^ Notwithstanding the demise of the development charge, the more basic planning concepts of the 1947 legislation, more or less compendium of preceeding acts, remained intact through successive legislative changes. The prime tenet remained that, with but a few exceptions, no development could proceed without obtaining the requisite permission from authorized local government sources. The 1947 act replaced the "development scheme" of earlier legislation and whereas the "scheme" had formerly been optional, each local authority was now required to institute a "plan" by no later than the f i r s t of July, 1951.(S.5) The Development Plan, with control over the "carrying out of building... or the making of any material change i n the use of any building or...land" (S.12(2)) did not appear to be regarded as a hard and fast guideline on planning permissions but was rather to "form a prophesy of the permissions l i k e l y to be granted and those l i k e l y to be refused".(Megarry & Wade, 1959, 1022) Instead of directing the decision of local plan-ning authorities, i t was to guide their deliberations on planning permis-sions, and so remained "prophetic" and "somewhat imprecise".(Laux, 1972, 4) Comprehensiveness at the national level was to be achieved by providing the Town and Country Planning Act, 1 & 2 E l i z . 2, c. 16. 21 Minister of Housing with the right to veto or disallow any application where incompatibility with surrounding uses was perceived, a recognition, i t i s claimed, of some early form of regional planning.(Laux, 1972, 6) Attempts were made i n the new legislation to provide for a more adequate enforcement procedure: unauthorized development could now be served notice to take certain steps, the failure of which would activate legal action consisting either of l i a b i l i t y to fine or prosecution, or the remedies of injunction or specific performance.(S. 23 (1-10) Nonetheless, the time-consuming nature of these legal processes together with an existing legal right of appeal from the notices apparently militated against effec-tive use of the proceedings, and c r i t i c s noted that "the law governing enforcement notices i s so technical and cumbersome as to be relatively ineffective".(Megarry & Wade, 1959, 1023) Concern with the rather cumbersome procedures of the 19^7 legis-lation led to the creation of the Planning Advisory Group, struck i n 196U s p e c i f i c a l l y to review the planning system, with special reference to "the delays i t incurs and the quality of i t s results."(U.K., 1965, i i i ) While their report commended the 19^7 legislation of Lord S i l k i n as "the most advanced and complete system of land use planning i n the world" (Heap, 1969, 20), i t went on to note that i t s centralized procedures had caused not only long delays i n reaching decisions, but the i n a b i l i t y of individ-ual citizens to play a sufficient part i n the planning process, and the emphasis of a negative control of undesirable development rather than positive planning for the creation of a pleasant environment. The report concluded by recommending that the system of preparing and approving development plans be radically altered and that general changes be intro-duced i n the methods of administering development control.(U.K., 1968a, 6) 22 2. The Present Act The Report of this Planning Advisory Group and the resultant 1967 White Paper lead to the introduction of a new Town and Country Plan-ning Act (l6/17 E l i z . 2, c. 72) intended, however, not as a replacement but rather as a supplement to the 1962 legislation (10 & 11 E l i z . 2, C. 3 8 ) , i t s e l f but a consolidation of the 19U7 Act and subsequent amendments. The Act envisioned a new form of development plan which was to be intro-duced gradually into areas with appropriate and adequate resources, such as a planning staff, to oversee their implementation. Plans already authorized under the 1962 legislation would be retained and only gradually replaced, and the present B r i t i s h practice therefore consists of a combin-ation of both forms.(U.K., 1968a, 6) The basic tenet of preceding B r i t i s h legislation, that permission i s an absolute prerequisite to development, remained of course as the spine of the new planning law, although "development" received a somewhat broader definition in the 1968 legislation. A l l building operations, the use of a single-family house for purposes other than a dwelling, and the making of any material change i n the use of any building or land now came under the control of the new legislation.(Part 7) (Heap, 1969, 90) The Development Plan, while remaining the main framework of develop-ment control (U.K., 1969a, 8 ) , underwent a considerable change i n structure. The plan authorized by the earlier 19&2 legislation was to consist of a group of maps and documents which, while not legally binding, had to be referred to whenever consideration i s given to the granting of permission to build or develop. The plan was to be submitted for approval to the 23 m i n i s t e r , w i t h the p r o v i s i o n f o r a p u b l i c i n q u i r y and then became a p u b l i c document i n d i c a t i n g the areas a l l o c a t e d f o r the various used, and f o r p o s s i b l e development under a comprehensive scheme or f o r l i m i t e d use. I n essence then, the p l a n , compulsory as i t was, had t o show not only the e x i s t i n g and proposed uses f o r the area, but a l s o i n d i c a t e the general manner of develop-ment and i t s s t a g i n g . A major c r i t i c i s m however of the 1962 l e g i s l a t i o n was t h a t i t inade-q u a t e l y p r o v i d e d f o r p u b l i c and l o c a l i n p u t (Anon., 1969, 6?6) and t h e r e -f o r e the 1968 A c t attempted t o p r o v i d e f o r i n c r e a s e d f l e x i b i l i t y and a s i g n i f i c a n t l y greater i n p u t and c o n t r o l by l o c a l concerns through the i n s t i -t u t i o n of a two-staged development p l a n . O v e r a l l c o n t r o l and broad, compre-hensive p l a n n i n g was t o be achieved v i a a s t r u c t u r a l plan, p r i m a r i l y a w r i t t e n statement b r o a d l y and diagrammatically d e s c r i b i n g the general plans f o r development. The o b j e c t of t h i s p l a n was t o "sketch out trends and tendencies, l a y down general l i n e s and show broadly and without d e t a i l how development i s going t o shape up w i t h i n the area of the s t r u c t u r a l p l a n " (Heap, 1969, hi), and i n a d d i t i o n t o the r e q u i r e d f o r m u l a t i o n of planning p o l i c y and proposals f o r development and use, the p l a n was t o i n d i c a t e c e r t a i n " A c t i o n Areas" s e l e c t e d f o r comprehensive treatment i n accordance w i t h a l o c a l plan.(Heap, 1969, ho) The l o c a l p l a n , as the second l e v e l , was designed t o pr o v i d e the f l e x i b l e and area-centered p l a n o f a c t i o n on the l o c a l s c a l e , and i t was t o be "a statement of f u r t h e r and b e t t e r p a r t i c u l a r s demonstrating a more d e t a i l e d working out of some p a r t i c u l a r aspect o f town p l a n n i n g . . . (Heap, See Town and Country P l a n n i n g (Development Plans) D i r e c t i o n , 1965. 1969, 53). A wide range of p o s s i b i l i t i e s was to be l e f t a v a i l a b l e with the l o c a l plan, the M i n i s t e r reponsible f o r i t s administration noting that, i n some instances, i t may be more advantageous to leave scope and freedom to the imagination and i n i t i a t i v e of the private developer and h i s a r c h i t e c t . (Heap, 1969, 55) Thus, the Act s p e c i f i e s that an area generally has the option of preparing a l o c a l plan, without the requirements of time or m i n i s t e r i a l approval. Where however, an area i s declared an "Action Area" i n the s t r u c t u r a l plan, preparation of a l o c a l plan i s compulsory.(Heap, 1969, 5 D C e n t r a l i z e d c o n t r o l and comprehensiveness i s attained through the requirement f o r the s t r u c t u r a l plan to state the r e l a t i o n s h i p of proposals f o r development and use to other such proposals i n the neighbouring area. Although the L o c a l Planning Authority now approves the plan, the M i n i s t e r has the " l a s t say i n the form and content of a s t r u c t u r a l plan".(Heap, 1969 38 & 47) The formal exposition of planning p o l i c y f o r general guidance i s furthermore achieved by the M i n i s t r y through p e r i o d i c regulations and c i r c u l a r s issued several times a year to provide the l o c a l o f f i c i a l s with some guidance i n deciding s p e c i f i c applications.(Mandelker, 1962, 46) Basic planning and actual decisions however continue to emanate from the l o c a l l e v e l where the county and county borough councils are the l o c a l planning a u t h o r i t i e s responsible at the community level.(Heap, 1969, 87) An even more l o c a l body i n the hierarchy of B r i t i s h municipal govern-ment however, the l o c a l d i s t r i c t c o u n c i l , a c t u a l l y receives the i n i t i a l a p p l i c a t i o n f o r development permission and provides the f i r s t i nspection and acceptance of the summary-form a p p l i c a t i o n presented. Once t h e i r approval i s secured, a more d e t a i l e d proposal i s then submitted to the " l o c a l 25 planning a u t h o r i t y " f o r t h e i r more a u t h o r a t a t i v e acceptance. One e f f e c t o f t h i s promotion of d i r e c t and f i r s t - h a n d involvement at the p u r e l y l o c a l l e v e l has been the involvement of the p r o f e s s i o n a l planner from the very e a r l y or beginning stages. In most i n s t a n c e s he i s employed as a s o r t of l i a i s o n between the p o l i t i c a l f a c t o r s of l o c a l d i s t r i c t c o u n c i l s and county c o u n c i l s , and i n such an i d e a l s i t u a t i o n , i t has been noted, h i s judgement on i n d i v i d u a l a p p l i c a t i o n s t r a n s m i t t e d t o the county c o u n c i l s - the l o c a l p l a n n i n g a u t h o r i t i e s i s o f t e n most c o n t r o l l i n g . (Mandelker, 1962, 87) The d i r e c t power t o dispose of an a p p l i c a t i o n remains the primary f u n c t i o n of the l o c a l p l a n n i n g a u t h o r i t y , and i n t h e i r d e l i b e r a t i o n s on an i n d i v i d u a l a p p l i c a t i o n they must r e f e r t o the development scheme ( e i t h e r the 1962 or I968 plan) and c e r t a i n "other m a t e r i a l c o n s i d e r a t i o n s " . As no l e g i s l a t i v e d e f i n i t i o n e x i s t s f o r these c o n s i d e r a t i o n s , c o n s i d e r a b l e scope t h e o r e t i c a l l y i s a v a i l a b l e , but the v a r i o u s d i r e c t i v e s and g u i d e l i n e s p u b l i s h e d by the Government have served t o somewhat ci r c u m s c r i b e t h i s apparent d i s c r e t i o n . O f f i c i a l l y , the d i s c r e t i o n of the l o c a l p l a n n i n g a u t h o r i t y does not admit much i n the way of personal and i n d i v i d u a l circum-stances, which seldom are s u f f i c i e n t t o outweigh the general p l a n n i n g considerations.(U.K., 1969a, 16) There i s however some evidence t o the c o n t r a r y t h a t a t t e n t i o n t o p e r s o n a l circumstances "pervades the a d m i n i s t r a -t i o n of the Act" and t h a t hardship i s a prime c o n s i d e r a t i o n , a l b e i t on an e r r a t i c basis.(Mandelker, 1962, 123) Once the l o c a l p l a n n i n g a u t h o r i t y has completed d e l i b e r a t i o n on the a p p l i c a t i o n , they must s e l e c t w i t h i n two months from the a v a i l a b l e options 26 of u n c o n d i t i o n a l approval, r e f u s a l or acceptance of the development proposal s u b j e c t e i t h e r t o general or s p e c i f i c c o n d i t i o n s . In a c e r t a i n number of enumerated instances"^ such as r e c r e a t i o n uses and general r e p a i r s (see Heap, 1969, 90) permission i s automatic, w h i l e i n others i t can be given s u b j e c t t o the pl a n n i n g a u t h o r i t y ' s subsequent approval of s i t i n g , design and other matters.(U.K., 1969a, 7) The permission under the terms of the 1962 l e g i s l a t i o n was, without p r e j u d i c e t o any m o d i f i c a t i o n or r e v o c a t i o n , t o enure f o r the b e n e f i t of the l a n d and of any person having an i n t e r e s t i n the l a n d , unless otherwise provided. The 1968 Act however, e s t a b l i s h e d a f i v e - y e a r term on the per m i s s i o n , w i t h the p o s s i b i l i t y of waiver or renewal i f c o n d i t i o n s warrant.(Heap, 1969, 109-113) One of the objects of the new l e g i s l a t i o n was t o provide f o r i n c r e a s e d l o c a l and p u b l i c i n p u t . P u b l i c hearings can be d i r e c t e d by the M i n i s t e r i n c e r t a i n i n s t a n c e s , and he has the general power t o review any other matter.(S.15 , 1947 Act) Nonetheless, i t appears t h a t h i s review power i s seldom e x e r c i s e d as the general and s p e c i f i c g u i d e l i n e s provided t o l o c a l p l a n n i n g a u t h o r i t i e s have tended to be r e l i g i o u s l y f o l l o w e d . (Mandelker, 1962, 47) While any departure from an approved development p l a n i s cause enough t o a c t i v a t e h i s i n t e r v e n t i o n , i n p r a c t i c e the M i n i s t e r w i l l n o t , apparently, intervene.(U.K., 1969a, 12) The l e g i s l a t i o n a l s o p r o v i d e s f o r a s t a t u t o r y r i g h t of appeal, a p u b l i c i n q u i r y a v a i l a b l e t o any a p p l i c a n t who f e e l s "aggrieved" by a d e c i -s i o n of the l o c a l p l a n n i n g a u t h o r i t y . (S. 23 1962 Act) The procedure how-ever makes no p r o v i s i o n f o r an appeal by i n t e r e s t e d or a f f e c t e d t h i r d p a r t i e s (Mandelker, 1962, 84), and does not tend t o resemble a j u d i c i a l "General Development Order, 1963, S t a t . I n s t . No. 709. 27 appeal. Appeal d e c i s i o n s , f o r i n s t a n c e , are not g e n e r a l l y p u b l i s h e d (Mandelker, 1962, kk) and the a p p e l l a n t i s t h e r e f o r e without the b e n e f i t of a body of precedents t o a s s i s t i n e s t a b l i s h i n g h i s p o s i t i o n . Mandelker r e p o r t s t h a t s t a f f from the M i n i s t r y of Housing and L o c a l Government who a d j u d i c a t e on appeals are unfavourably disposed towards precedence because i t leads t o "undesirable r i g i d i t i e s i n a d m i n i s t r a t i o n " (Mandelker, 1962, 117), but these i n s p e c t o r s and a d v i s o r y personnel do not, i n any event, possess the r e q u i s i t e l e g a l t r a i n i n g or experience t o adequately f u n c t i o n i n a system based on precedents.(Mandelker, 1962, 115) Appeals from a d e c i s i o n on p l a n n i n g permission are thus considered on a p u r e l y ad hoc b a s i s , g e n e r a l l y l a c k i n g the b e n e f i t s or guidance e i t h e r from a body of e s t a b l i s h e d planning law or from the very " g e n e r a l l y worded" government c i r c u l a r s . ( M a n d e l k e r , 1962, 1+6) Of some 8 , 1*95 appeals a g a i n s t d e c i s i o n s of the l o c a l a u t h o r i t i e s launched i n 1967, 6 , 521 were dismissed (U.K., 1969, 1 0 ) , and a p p e l l a n t s i n any event are reminded t h a t the M i n i s t e r has the power t o change even those c o n d i t i o n s not appealed a g a i n s t , or t o impose new and a d d i t i o n a l ones.(S. 23(1*), 1962 Act) Nonetheless, the 1965 Report of the P l a n n i n g A d v i s o r y Group recommended t h a t the p u b l i c appeal procedure be c a r e f u l l y r e t a i n e d as " e s s e n t i a l t o the maintenance o f p u b l i c confidence i n the system".(U.K., 1965, 29) 3 . C o n d i t i o n s of P l a n n i n g P e r m i s s i o n The source of t r u e p l a n n i n g d i s c r e t i o n and the key t o the f l e x -i b i l i t y o f the B r i t i s h l e g i s l a t i o n i s undoubtedly found i n the p r o v i s i o n s e n a b l i n g the l o c a l p l a n n i n g a u t h o r i t y , i n d i s p o s i n g of a p p l i c a t i o n s f o r p l a n n i n g p e r m i s s i o n , t o e i t h e r u n c o n d i t i o n a l l y accept, r e j e c t o r , most importantly, grant acceptance subject to certain conditions. Section lit (2)(a) of the grandfather 1947 legislation authorized the imposition of conditions to regulate "the development or use of land...so far as appears to be expedient for the...development authorized", while the 1962 consoli-dated legislation permitted the authority to impose such conditions "as they think f i t " with specific power to include the impostion of time limits on this condition and to extend i t to other lands of the applicant not covered by his application.(S. 17 & 18) Read either together or by themselves, these sections appear sufficient to vest the l o c a l planning authorities with considerable discretion. Such has not however been the case, for a number of administrative directives, together with pronounce-ments of several courts and administrative tribunals, have served to some-what confine and delineate the conditional power of planning permissions. The courts, for instance, i n referring to this seemingly broad power to attach conditions to a planning permission have imposed certain general limitations. Local authorities have been advised that this wide power "must serve some genuine planning purpose i n relation to the develop-ment permitted" (U.K., 1969a, 6 ) , and that the conditions themselves must be "reasonably certain and intel l i g e n t l y and sensibly related to the planning scheme and proposals for the area".(Fawcett Properties Ltd. v.  Buckingham County Council, i n Heap, 1969, 119) The Government had heeded the Courts" rulings and has not only issued circulars warning planning authorities to be prepared always to ju s t i f y the imposition of conditions but has provided them with a number of tests to be considered whenever planning conditions are contemplated.: (U.K., 1968b, 1) The conditions, for instances, must f i r s t be necessary 29 and r e l e v a n t t o the p l a n n i n g f u n c t i o n and the development be i n g p e r m i t t e d , w h i l e a second t e s t should determine whether they can i n f a c t be e f f e c t i v e . C o n d i t i o n s which can o n l y be worded as a p o s i t i v e requirement, the c i r c u l a r warns, are not s u f f i c i e n t l y r e s t r i c t i v e and w i l l , as a general r u l e , be d i f f i c u l t t o enforce.(U.K. 1968b, 5) F i n a l l y , t o reduce the p o s s i b i l i t y both o f m i s i n t e r p r e t a t i o n and non-compliance by developers and t h i r d p a r t i e s and of p o s s i b l e j u d i c i a l i n t e r v e n t i o n , ^ c o n d i t i o n s should be kept p r e c i s e and reasonable.(U.K. 1968b, 5) Of more p r a c t i c a l concern however are a number o f r e s t r i c t i o n s and l i m i t s on the a c t u a l type of c o n d i t i o n s which the a u t h o r i t y can impose. Although i t s j u r i s d i c t i o n appears s u f f i c i e n t l y broad i n terms t o i n c l u d e , f o r i n s t a n c e , c o n d i t i o n s r e q u i r i n g road c o n s t r u c t i o n , the donation of open space f o r p u b l i c purposes, and a f e e t o provide f o r s e r v i c i n g the lot-3 being c r e a t e d , Mandelker maintains t h a t these amenities are normally secured i n s t e a d through a process of b a r g a i n i n g w i t h the developer, u s u a l l y p e r m i t -t i n g a hi g h e r d e n s i t y i n r e t u r n . (Mandelker, 1962, 63) There would, however, appear t o be other reasons f o r t h i s apparent r e t i c e n c e t o demand such items as a c o n d i t i o n s of planning permission. I t has been j u d i c i a l l y determined, f o r i n s t a n c e , t h a t the g r a n t i n g of a p u b l i c r i g h t - o f - w a y without compensation, which the owner should by common law be e n t i t l e d t o , i s c l e a r l y i n v a l i d ( H a l l & Co. v. Shoreham, i n Heap, 1969, 118), and a s i m i l a r c o n d i t i o n r e q u i r i n g completion of development w i t h i n a c e r t a i n time p e r i o d has e q u a l l y been h e l d unenforceable.(U.K., 1968b, 5) A con-d i t i o n s t i p u l a t i n g payment of an annual sum t o the p l a n n i n g a u t h o r i t y as s e c u r i t y f o r the f i n a l f u l f i l l m e n t of a number of c o n d i t i o n s t o the p l a n n i n g 30 permission has been held by the Minister, s i t t i n g on appeal, as improper and beyond planning powers, the rule apparently being that money can only be demanded on distinct authority l a i d down by statute.(Case I I I / 16 i n Heap, 1969, 115) Suggestions for a " l o t fee" condition, on the other hand, have apparently been received cooly because of the earlier failure of the development charge provisions of the 1947 Act, although road con-struction requirements are normally secured even i n the l i g h t of dubious legislative authority, i n the apparent hopes that they w i l l not be challenged. (Mandelker, 1962, 63) Finally, there i s the suggestion that many local authorities f e e l that their insistence on donations and similar conditions represents a sale of planning permission to the highest bidder.(Mandelker, 1962, 63) In addition however to these principles that unreasonable, impre-cise or unenforceable conditions w i l l not be sustained, there has been some consideration of the effect that a n u l l i f i e d condition might have on the status of the planning permission i t s e l f . Earlier j u d i c i a l opinion appeared to hold that an improper or invalid condition would taint the whole planning permission (Pyx Granite, i n Heap, 1969, 118), hut recent opinion appears to be evolving somewhat away from this position. It now 1 : seems, albeit by way of an acknowledged obiter and not without some d i f f e r -ence of opinion, that the effect of an invalid condition on the planning permission i s to be decided purely as a matter of common sense, having regard to whether that condition i s fundamental or merely incidental to the permission.(Heap, 1969, 120) Obiter dictum - An observation by a judge on a legal question suggested by a case before him, but not arising in such a manner as to require decision. It i s therefore not binding as a precedent." P .G. Osborne, A Concise Law Dictionary, 5th Ed. London, 1964. 31 A COMPARISON OF AMERICAN AND BRITISH LAND USE AND DEVELOPMENT POLICY I t now seems apparent that as means of planning and land use con-t r o l , B r i t i s h and American l e g i s l a t i o n and practiceyhave taken on dec i d e l y divergent c h a r a c t e r i s t i c s , each representing a d i s t i n c t and separate n a t i o n a l approach to the problems of use and development. There i s how-ever an apparently wide range of opinion as to the magnitude of the hiatus between the two j u r i s d i c t i o n s , and DelaFons has observed that "the d i s t i n c -t i o n s between a formal system of regulatory controls...and c o n t r o l as a di s c r e t i o n a r y power ... are more apparent than real".(Delafons, 1969, 112) There i s some d i f f e r e n c e i n the basic theory and a t t i t u d e of planning and use controls i n both countries, as characterized by t h e i r o r i g i n s and p r e v a i l i n g p r a c t i c e . Almost since the i n c e p t i o n of any form of B r i t i s h planning c o n t r o l , i t has been i n t i m a t e l y i d e n t i f i e d as a c o n s t i -tuent "Town and Country Planning" concern, with the emphasis on development instead of use, and encompassing the tenet that a l l development be subject to some form of state or u n i f i e d c o n t r o l . Consequently, broad administra-t i v e c o n t r o l and attendant d i s c r e t i o n have been a hallmark of the B r i t i s h p r a c t i c e . American planning l e g i s l a t i o n , on the other hand, where "pre-zoning" r e q u i r e s the determination of projected use p r i o r to the f a c t , tends to emphasize use inste a d of development. While zoning may have been derived from p r i n c i p l e s of use c o n t r o l and the law of nuisance, i t i s now d i s t i l l e d from a v a r i e t y of acts and regu l a t i o n s j i n c l u d i n g s u b - d i v i s i o n and b u i l d i n g regulations and the sometimes determinative guidance from Master Plans, urban renewal schemes and o f f i c i a l s t r e e t maps. This plethora of constituent l e g i s l a t i o n , each 32 developing from d i s t i n c t but d i f f e r e n t planes, purposes and p o i n t s of view has undoubtedly served t o confuse somewhat the d i r e c t i o n and scope of American p l a n n i n g l e g i s l a t i o n . Comprehensive pl a n n i n g , f o r i n s t a n c e , appears f a r l e s s a t t a i n a b l e w i t h the v a r i e t y o f American s t a t u t e s than w i t h the s i n g u l a r and purpose-oriented B r i t i s h development c o n t r o l l e g i s l a t i o n , where the development p l a n p r o v i d e s c o n t i n u i t y and assures comprehensive-ness. A d m i n i s t r a t i v e d i s c r e t i o n has not of course c h a r a c t e r i z e d planning l e g i s l a t i o n i n the U n i t e d S t a t e s , and the o f t - c i t e d f e a r of a d m i n i s t r a t i o n d i s c r e t i o n has tended t o underscore the d i s t i n c t i o n s i n t h i s area. Americans have, f o r example, censured the B r i t i s h l e g i s l a t i o n as "the image of auto-c r a t i c d e c i s i o n making" (Anon., 1969, 76) and f o r i t s d i r t h o f p o l i c y p r i n c i p l e s , sometimes r e n d e r i n g , i t i s claimed, p r e d i c t a b i l i t y exceedingly d i f f i c u l t . (Mandelker, 1962, 129) I t has a l s o been popular t o d i s t i n g u i s h B r i t i s h and American attempts a t use and development c o n t r o l on i s s u e s o f p u b l i c versus p r i v a t e e n t e r p r i z e . Mandelker's study of the two planning systems p o i n t s out t h a t the E n g l i s h l e g i s l a t i o n was p r i m a r i l y designed t o r e g u l a t e p u b l i c b u i l d i n g , and hence does not co n t a i n the s u p e r v i s o r y powers which i n America l i n k t h e planning a u t h o r i t y w i t h the p r i v a t e builder.(Mandelker, 1962, 62) F r e d e r i c k Laux, a Canadian law p r o f e s s o r , c h a r a c t e r i z e s the r e s u l t s o f t h i s p o l a r i t y as the... "somewhat anamolous s i t u a t i o n t h a t a s o c i a l i s t type government devised and implemented a l a n d use r e g u l a t o r y scheme which both recognized and gave considerable i n i t i a t i v e i n l a n d use pl a n n i n g . . . w h i l e American Euclidean zoning, which was devised and kept c u r r e n t by a p o l i t i c a l system committed t o the p r i n c i p l e of f r e e enter-p r i s e , by i t s very nature, d r a s t i c a l l y l i m i t s . . . t h e r o l e of the p r i v a t e developer i n f o r m u l a t i n g and implementing the community plan."(Laux, 1972, 5) T h i s p o l i t i c a l f a c t o r of American zoning and a p r e v a l e n t d i s t r u s t of a d m i n i s t r a t i v e d i s c r e t i o n i s a l s o r e f l e c t e d i n d i s t i n c t i o n s i n appeal procedures. B r i t i s h appeal p r a c t i c e normally c o n s i s t s of a t r i a l de novo a complete r e - h e a r i n g of the o r i g i n a l a p p l i c a t i o n f o r planning permission, which i s r o u t i n e l y handled by I n s p e c t o r s , a d m i n i s t r a t i v e o f f i c i a l s d e l e -gated t h i s power by the M i n i s t e r . Although the form of such hearings a l l e g e d l y remains j u d i c i a l (Mandelker, 1962, 89), the Inspectors tend t o possess n e i t h e r l e g a l t r a i n i n g or planning experience.(Mandelker, 1962, 21,95, I l k ) There i s no s i m i l a r p r o v i s i o n f o r such a d m i n i s t r a t i v e d i s c r e t i o n i n the American system, and appeals g e n e r a l l y proceed s t r i c t l y i n accordance w i t h j u d i c i a l p r i n c i p l e s . This method i s claimed t o a f f o r d c o n s i d e r a b l e more emphasis t o the r i g h t s of i n d i v i d u a l c i t i z e n s , the p l a n -ners' r o l e becoming r a t h e r more advisory. (Counts, 1966, 2) Nonetheless, there i s apparently not the o p p o r t u n i t y f o r the second-look approach t h a t i s a v a i l a b l e i n B r i t i s h appeal procedure, f o r the American courts have tended t o give the o r i g i n a l zoning d e c i s i o n a prima f a c i e acceptance. (Mandelker, 1962, 19) American c r i t i c s however f e e l t h a t t h e i r methods provide g r e a t e r advantages f o r p u b l i c p a r t i c i p a t i o n i n l a n d use c o n t r o l s ( M a k i e l s k i , 1967), and avoids the dangers of i n f l u e n c e by p r i v a t e pressure groups i n a development c o n t r o l system.(Anon., 1969, 677) A prime remaining d i s t i n c t i o n between these two t h e o r i e s of l a n d 3h use and development c o n t r o l l i e s i n the a t t i t u d e s of l a n d tenure. Although few Americans argue w i t h the t h e s i s t h a t ... "Zoning r e s u l t s from a r e a l i -z a t i o n t h a t the value and usefulness of each p a r c e l , not o n l y t o the owner but t o the community, i s v i t a l l y a f f e c t e d by the use made of the a d j o i n i n g p a r c e l " (Landels, 165) , there has been l e s s a p p r e c i a t i o n of the extension as championed by Henry George: "The val u e of l a n d ... i s not i n any case the c r e a t i o n of the i n d i v i d u a l who owns the l a n d ; i t i s created by the community". 1 ( M i l n e r , 1963, 88) The concept of the "development value" o f l a n d was, of course, i n c o r p o r a t e d i n t o the Uthwatt Report of 19ii2 and saw implementation w i t h the n a t i o n a l i z a t i o n of the development value o f l a n d i n B r i t a i n ' s 19U7 Town and Country P l a n n i n g Act. While subsequent l e g i s l a t i o n has some-what mo d i f i e d the i n t e n t o f t h i s 19^7 ordinance, the obvious p r o c l i v i t y of the B r i t i s h t o t h i s form of l a n d tenure stands i n c o n t r a s t t o the t r a d i -t i o n a l American views. A number of Americans have recognized c e r t a i n advantages i n E n g l i s h development c o n t r o l : "The E n g l i s h development p l a n contains substan-t i v e and procedural strengths not possessed by the American Master P l a n and zoning ordinance".(Mandelker, 1962, 13) The most re c e n t recommendations of the American Law I n s t i t u t e ' s Model Land Development Code (ALI D r a f t , 1971, 3) c l e a r l y e n v i s i o n a form of development c o n t r o l c l o s e l y a l l i e d t o the B r i t i s h model, but are a l s o based on suggestions from American p l a n n i n g and zoning s p e c i a l i s t s . A number of these reform suggestions, n o t i n g t h a t even now " l o c a l 1 See however: S t i c k e l , 1969, U23; Rawson, M a r i o n " P r o p e r t y Taxation and Zoning",- 1967 P l a n n i n g 2 7 8 ; "Property Taxation and Urban Development" i n M i l n e r , 1963, l U 2 . ) 35 governments are t u r n i n g away from E u c l i d e a n zoning ... t o a system i n which the c e n t r a l f e a t u r e i s a request by an owner f o r permission t o develop" (Smith, 19 69, kk), have advocated a permit system i n s t e a d of t r a d i -t i o n a l zoning procedure. By p r o v i d i n g some means of general r e g u l a t i o n , i t i s argued, the need f o r a d m i n i s t r a t i v e f l e x i b i l i t y , which assumedly cannot be accommodated i n standard zoning, would thereby be a v a i l a b l e . (Kras,, 1 9 6 5 , 10) D a n i e l Mandelker i n h i s study of E n g l i s h development c o n t r o l has c r i t i c i z e d suggestions f o r a permit system as merely p r o v i d -i n g exposure of some of the more complex problems of c o n t r o l and c o - o r d i n -a t i o n which are otherwise hidden or compromised by c o n v e n t i o n a l zoning, and he argues t h a t e i t h e r f u l l E n g l i s h - s t y l e development c o n t r o l must be adopted, or the search continued elsewhere i n attempts t o accommodate p u b l i c and p r i v a t e i n t e r e s t s . ( M a n d e l k e r , 1962, 21) Some recommendations f o r the f u l l i n s t i t u t i o n o f development c o n t r o l i n the p l a c e and stead of zoning have been made. Most, such as D a l b e l l e s 1962 p l a n f o r a two-step c o n t r o l procedure encompassing both p r e l i m i n a r y and f i n a l p l a n s w i t h p o l i c y g u i d e l i n e s and "development pl a n s " t a i l o r e d s p e c i f i c a l l y f o r l o c a l area planning ( D a l b e l l e , 1968) have been noted f o r t h e i r remarkable resemblance t o the c u r r e n t E n g l i s h l e g i s l a t i o n . ( C o u n t s , 1966, 8) The p r a c t i c a l m a j o r i t y of suggested reforms have,however, concen-t r a t e d on e s t a b l i s h i n g working i n t e r - r e l a t i o n s h i p s between e x i s t i n g zoning and recommended development c o n t r o l r e g u l a t i o n s . Heeter's survey of major U.S. Government r e p o r t s on urban problems i n the 1960's d i g e s t s a "guidance system" i n c o r p o r a t i n g a v a r i e t y o f new t o o l s t o guide the tempo, 36 p r i o r i t y , location, type and quality of use and development that would co-exist with zoning, which would i t s e l f be retained sp e c i f i c a l l y to guard against incompatible changes - " i t s original purpose."(Heeter, 1969, 66) Somewhat similar i s Rep's system of "Development Regulations" requiring a compulsory development plan but allowing broad discretionary power to local administrators to grant permits, albeit circumscribed by narrowly defined development rights and well-defined performance standards. (Reps, 1961+, 6-9) Such combined controls have of course been operating with general success i n Canadian provinces and would be able to provide considerable guidance wherever such methodology i s contemplated. Interestingly then, American experience and direction seem now to be approaching Canadian examples i n their search for innovative and flexible tools to combat zoning r i g i d i t y . LAND USE AND DEVELOPMENT CONTROL IN CANADA l ) Factors The evolution of Canadian land use and development control l e g i s -lation has tended to roughly p a r a l l e l that of the United States and has traditionally eschewed the establishment of a closer a f f i n i t y with B r i t i s h methods of land use control, with the result that u n t i l recently zoning has been the primary control mechanism i n this country. There i s evidence however of an increasing trend to experimentation with British-style control methods and the present situation i n Canada i s composed of both elements. Although Canadian zoning practice does bear close resemblance to i t s American counterpart and remains an "essentially U.S. type control" (Milner, 1962b, 32), there i s some difference of opinion as to both the 37 r a t i o n a l e and extent of the American i n f l u e n c e . M i l n e r , f o r i n s t a n c e , maintains t h a t i n s p i t e o f the prima f a c i e s i m i l a r i t i e s , American planners have r e l a t i v e l y l i t t l e i n f l u e n c e i n Canada ( M i l n e r , 1962b, U 5 ) , although others complain of continued and unnecessary dependence on the American p r a c t i c e . ( C l a r k , 1958, 6) Aykroyd, i n h i s comparative study of B r i t i s h and American l a n d c o n t r o l s , i s probably more accurate i n h i s p r o p o s i t i o n t h a t w h i l e there i s undoubtedly some American i n f l u e n c e here, i t i s merely i n the procedure and technology and does not go t o the b a s i c nature of our planning l e g i s l a t i o n , which remains rooted i n B r i t i s h t r a d i t i o n . ( A y k r o y d , 1969, 15) There i s , i n any event, c o n s i d e r a b l e c r i t i c i s m of the way i n which the American theory of zoning has been a p p l i e d i n the Canadian context. M i l n e r maintains t h a t the d i r e c t adoption of the l e g i s l a t i v e r a t i o n a l e f o r zoning, complying w i t h the " p o l i c e power" of the American c o n s t i t u t i o n , i s a b s o l u t e l y without c o n s t i t u t i o n a l n e c e s s i t y or v a l i d i t y i n t h i s country, and was probably done without any c l e a r understanding o f the o r i g i n of the phrases and wording i n the a u t h o r i z i n g l e g i s l a t i o n , ( M i l n e r , 1956, 131) and A d l e r questions the adoption of American s o l u t i o n s which do not apply t o the l e s s c o n s t r a i n e d Canadian system.(Adler, 1968, 163) In a d d i t i o n , although both c o u n t r i e s share common growth and development p a t t e r n s and have, because of h i s t o r y and geographic p r o x i m i t y , experienced s i m i l a r growth problems, there are c e r t a i n fundamental d i s t i n c t i o n s i n the c o n s t i -t u t i o n a l arrangement o f f e d e r a l and s t a t e or p r o v i n c i a l governments, i n the s o c i o - l e g a l f a b r i c and i n our common-law t r a d i t i o n s . F i n a l l y , d i f f e r i n g a t t i t u d e s towards r u r a l - u r b a n problems and i n concern f o r the r e t e n t i o n of l o c a l r i g h t s a l l m i l i t a t e a g ainst a s s i m i l i t u d e i n l a n d c o n t r o l p o l i c i e s . ( M e r r i f i e l d , 1963, 3) 38 The influence of the U.K.. system of development control i s per-haps more d i f f i c u l t to discern i n traditional Canadian land use control, but i s becoming increasingly more apparent in the new and flexible approaches being advocated. The d i s t i n c t l y Canadian requirement of provincial approval of most zoning by-laws (Milner, 1962b, 32) probably.derives from British tradition, and similar state supervision of zoning i s at present minimal in i the United States, where and even planning assistance in land use controls i s present i n less than half of the states. (Cunningham, 1965,380) .. Requirements similar to ours however, are presently being considered and recommended for institution in American land use legislation.(ALI Draft 3, 1971) The greatest impact and influence of•English tradition.is-probably, f e l t in that most substantial-and important distinction betwen American and British land use practice - in the degree of discretion. American land iise adminstration has been singularly noted for i t s distrust of administrative discretion and characterized by attempts to keep discretion low and well within limits capable of f u l l and constant legislative or p o l i t i c a l review. Canada, on the other hand, with a background of British tradition and experience and enjoying a correspondingly different socio-political develop-ment from that of the United States, has experienced neither this distrust nor adverse reaction against the vasting of discretionary power in i t s administrative o f f i c i a l s . Some form of administrative discretion i s presently available in Canadian sub-division and zoning controls,'and the increasing use of development control is widening the horizon for discretion, except wherever the maintenance of suitable p o l i t i c a l control i s paramount.(Milner, Lecture, March 28, 1968) 39 2) S t a t u s Zoning now provides the primary means of l a n d use c o n t r o l i n a l l but two or three of the Canadian p r o v i n c e s . Although Manitoba and P r i n c e Edward I s l a n d do not r e f e r t o t h e i r l e g i s l a t i o n as zoning, i t apparently f u n c t i o n s i n much the same manner, ( M i l n e r , 1962a, 1U5), w h i l e s e v e r a l o f the other provinces i n c l u d i n g A l b e r t a and Ontario operate w i t h t r a d i t i o n a l zoning c o n t r o l s augmented by recent i n t r o d u c t i o n s of development c o n t r o l . Zoning i s not however g e n e r a l l y compulsory i n Canada (Aykroyd, 1 5 ) , except i n new l e g i s l a t i o n f o r i n d i v i d u a l Ontario Regional D i s t r i c t s and i n A l b e r t a where l e g i s l a t i o n r e q u i r e s t h a t zoning r e g u l a t i o n s s h a l l "proceed" once a p l a n has been p u t i n t o e f f e c t . ( M i l n e r , 1962b, 27) Most p r o v i n c i a l zoning ordinances bear c l o s e resemblance t o the American product and have been de r i v e d i n s i m i l a r f a s h i o n from those r o o t s . (RAIC, 1965, 7) O n t a r i o , f o r i n s t a n c e , had a f a i r l y w e l l e s t a b l i s h e d urban p o p u l a t i o n by the beginning of the Twentieth Century and by 190U was, l i k e other major urban c e n t r e s i n Europe and the Eas t e r n U n i t e d S t a t e s , o p e r a t i n g w i t h not o n l y a s e t of b u i l d i n g r e g u l a t i o n s t o c o n t r o l i n t e r a l i a , f r o n t a g e and set-backs, but w i t h by-laws t o "prevent, r e g u l a t e and c o n t r o l the l o c a t i o n , e r e c t i o n and use of ... ( c e r t a i n s p e c i f i e d t r a d e s ) . ( M i l n e r , 1963, 606) No attempts however t o i n s t i t u t e " d i s t r i c t i n g " or any c l a s s i f i -c a t i o n of use were made u n t i l 1921 when l e g i s l a t i o n a u t h o r i z i n g the p r o h i b i t i o n of "the use of l a n d or the e r e c t i o n or use of b u i l d i n g s w i t h i n any d e f i n e d area or areas ... f o r any other purpose than t h a t o f a detached p r i v a t e r e s idence" (1921, S.O.C. 6 3 , S. 10) heralded the f i r s t zoning JUo e n a b l i n g s t a t u t e , a t l e a s t i n terms now f a m i l i a r t o modern zoning by-laws. Whatever may have been the i n t e n t i o n s f o r t h i s e a r l y zoning by-law, most Ontario m u n i c i p a l i t i e s apparently regarded i t as l i t t l e more than a s t a t e s u b s t i t u t e f o r a b u i l d i n g scheme.(Milner, 1962b, 1*6) From 1921 t o 1952, when Toronto f i n a l l y r e v i s e d i t s o r i g i n a l zoning procedure, some 1*00 by-laws had been passed. During t h a t time however, the i n i t i a t i v e f o r d e f i n i n g the area w i t h i n which the by-law would be used was l e f t up t o the l o c a l r e s i -dents themselves so t h a t a number of these "defined areas" were l i t t l e more than l o c a l s t r e e t s , the product of somewhat o v e r - e f f u s i v e p a r o c h i a l i n t e r e s t s . ( M i l n e r , 1962b, 1*6) I f the development and use of zoning l e g i s l a t i o n r e f l e c t s a p u r e l y American t r a d i t i o n , the i n t r o d u c t i o n of a d m i n i s t r a t i v e d i s c r e t i o n and development c o n t r o l i n t o Canadian l a n d use l e g i s l a t i o n r e p r e s e n t s "the f i r s t r e a l and major departure from U.S. p r a c t i c e " . ( C l a r k , 1958, 9) Now 1 a v a i l a b l e i n a t l e a s t seven provinces development c o n t r o l appears t o be g a i n i n g widespread use and acceptance amongst both planners and developers (RAIC, 1965, 22)^although the provinces g e n e r a l l y have not appeared too eager t o experiment w i t h d i s c r e t i o n a r y l a n d use c o n t r o l s a t the expense of the proven methods of zoning. The P r o v i n c e of A l b e r t a has however, f o r at l e a s t twenty y e a r s , been u t i l i z i n g a form of development c o n t r o l . The f i r s t development c o n t r o l l e g i s l a t i o n , c l o s e l y modelled on the 191*7 B r i t i s h A c t , was i n t r o -duced i n t o A l b e r t a i n 1950 a l l e g e d l y on the i n i t i a t i v e of the C i t y of Edmonton (Stevenson, 1961, 1*35) and undoubtedly suggested, s u s t a i n e d and B.C., A l b e r t a , Saskatchewan, Manitoba, Ontar i o , P.E.I, and Newfoundland. l a promoted by t h a t provinces "great m a j o r i t y of E n g l i s h born o r educated planners". ( M i l n e r , 1962b, U5) This l e g i s l a t i o n was apparently seen as no more than an i n t e r i m measure when f i r s t i n t r o d u c e d , intended t o be used o n l y between the r e s o l u t i o n t o prepare a general p l a n and i t s f i n a l implementation (Laux, 1972, 9) Nonetheless, the advantages of develop-ment c o n t r o l appear t o have been q u i c k l y appreciated by both Edmonton and C a l g a r y f o r , by simply not implementing the p l a n both c i t i e s have been o p e r a t i n g w i t h " i n t e r i m " development c o n t r o l more or l e s s c o n t i n u o u s l y s i n c e 1950.(Stevenson, 1961, U35) The anomalous " i n t e r i m d e s i g n a t i o n was th e r e f o r e d e l e t e d from the act and a l l references i n 1963 (RAIC, 1965, 22), i n essence v i t i a t i n g M i l n e r ' s p r e d i c t i o n t h a t "the r e a l danger of i n t e r i m c o n t r o l i s t h a t i t soon becomes c o n t r o l and l o s e s i t s i n t e r i m q u a l i t y " . (Stevenson, 1961, 1+35) A l b e r t a ' s p l a n n i n g l e g i s l a t i o n now t h e r e f o r e permits the m u n i c i p a l c o u n c i l s e i t h e r t o r e g u l a t e by the t r a d i t i o n a l means of a zoning bylaw (R.S.A. 1970, G. 276, S. 119) o r , even a f t e r a general p l a n has been adopted, t o o b t a i n a u t h o r i z a t i o n from the M i n i s t e r t o continue the e x e r c i s e of development control.(S.100) That p a r t of the a c t concerned w i t h Develop-ment C o n t r o l bears s t r o n g resemblance t o the E n g l i s h l e g i s l a t i o n . To ensure t h a t the proposals of the general p l a n w i l l be c a r r i e d out, the l e g i s -l a t i o n a l s o provides f o r the enactment of development schemes, g e n e r a l l y designed t o f a c i l i t a t e the d e s i g n a t i o n , assembly or purchase of school and park, s i t e s , roadways and other s p e c i f i e d uses.(S.llU) A c t u a l c o n t r o l of development i s achieved through a system of pe r m i t s , c o n d i t i o n a l or otherwise, w h i l e each a p p l i c a t i o n i s t o be considered on i t s own me r i t s -"having r e g a r d t o the proposed development conforming w i t h the general plan being prepared or adopted"(S. 100 (2)) To this point the legislation bears a strong, and probably inten-tional, resemblance to English Development Control. Nonetheless, a further and somewhat dis-similar section of the Alberta Act provides for a "land use classification guide", ostensibly to assist i n the exercise of development control but appearing, for a l l intents and purposes, v i r t u a l l y identical to the standard form zoning by-law though absent i t s general sec-tions on applications, appeals and enforcement.(Laux, 1972, 18) Both Edmonton and Calgary (Calgary ByLaw 7839, S. 11-1) require that the development control officer to whom the responsibility of administering development control has been delegated sha l l be governed by this land use classification guide, and concern has been expressed that should the law in fact so require that he be governed by this guide, the distinction between development control and zoning would be effectively negated and the intent and purpose of the legislation frustrated.(Laux, 1972, 20) In fact, recent ju d i c i a l set-backs to the status of the Calgary Development Control By-Law have tended to confirm this fear,"'' and the status of both zoning and development control i n Alberta i s "to say the least, uncertain". (Laux, 1972, 12) The practice i n the Province of Ontario may however be even more uncertain, for there development control i s practiced without any specific legislative authorization. Ontario's "restricted area" by-laws, similar to zoning ordinances but considered to be somewhat more negative (Cumming, See Calgary Herald, March 11, 1972. 1950, n.p.), have apparently been u t i l i z e d i n the main f o r o n l y s i n g l e -f a m i l y use, and m u n i c i p a l i t i e s have i n s t e a d been i n s i s t i n g on the enactment of s p e c i f i c by-laws f o r each other i n d i v i d u a l use(0LRC, 1971, 11) While most of Ontario's urban centres have long had the p r a c t i c e of u s i n g formal documents executed w i t h the developer as a prime c o n t r o l instrument (Aykroyd, 1969, 18), t h i s method has taken on some s o p h i s t i c a t i o n and i s now w i d e l y used i n both Hamilton and Toronto and i s the major c o n t r o l mechan-ism f o r the C i t y o f London.(Adler, 1971, 97) The p r a c t i c e t h e r e i s t o g e n e r a l l y r e t a i n the e x i s t i n g zoning and thus r e q u i r e any developer who d e s i r e s a more economical or d e s i r a b l e use t o apply f o r the change. I n s t e a d of r e z o n i n g the p r o p e r t y , an i n d i v i d u a l by-law i s passed t o r e s t r i c t development t o t h a t proposed or p e r m i t t e d by the munci-p a l i t y and covered by an a r i c i l l i a r y c o n t r a c t . ( S a n d l e r , 1 9 6 U ) The O n t a r i o M u n i c i p a l Board, the approving a u t h o r i t y f o r a l l m u n i c i p a l zoning by-laws, o f f i c i a l p l a ns and s u b d i v i s i o n s , has however c h a r a c t e r i z e d such a p r a c t i c e as "spot zoning" and has i n d i c a t e d t h a t "On general p r i n c i p l e s t h i s Board i s opposed t o spot zoning and s i t e p l a n c o n t r o l s . . . " ( R e P i c k e r i n g By-law 3718, c i t e d i n A d l e r , 1971, 102). The Ontario Court of Appeal however i n a I960 d e c i s i o n (Re North York By-law lUo67, I960 2k DLR 12) appears t o have v i t i a t e d the p r a c t i c e of spot zoning ( M i l n e r , L e c t u r e , March 28, 1968), and the O.M.B. appears ready t o observe the precedent, so l o n g as t h e r e i s evidence of planning research i n the general area or t h a t the use change i s i n compliance w i t h the s p i r i t and i n t e n t of an e x i s t i n g o f f i c i a l p l a n . ( A d l e r , 1971, 95) M i l n e r thus f e e l s , t h a t the Board has t a c i t l y approved the London procedure, and t h a t the Ontario form of development c o n t r o l i n p r a c t i c e thus c l o s e l y approximates A l b e r t a development c o n t r o l l e g i s l a t i o n . ( M i l n e i ; 1962b, 53) The City of Vancouver, operating with i t s own charter independently of the Municipal Act, has been able to u t i l i z e somewhat more flexible means of land use control than other provincial municipalities. Since 1956 the city has been operating with a Development Permit system, later amended to 2 allow the attachment of conditions, while a 1962 amendment permitted the designation of certain zones without uniform regulations but for which development required council approval. Although there would appear to be extensive discretionary powers given to the Technical Planning Board under these Comprehensive Development Zones, c i t y planning o f f i c i a l s have i n d i -cated that because each zone i s normally established with a specific purpose or development i n mind, and because council actually sets the policies for each zone, l i t t l e actual discretion i s available. (Gereeke, 1971, 15) Because however the remainder of the province's municipalities are within the jurisdicton of the Municipal Act, which u n t i l recently made no provision for any form of conditional use, Vancouver's system was generally considered preferable.(South, Interview.) Other provinces did however 3 permit special conditions of use , and B.C.'s recently introduced S. 702A provides for "such terms and conditions for the use and development of the land as may be mutually agreed upon...".(S.702A,(3)). 3. Evaluation Recognizing and to some extent encapsulating the American trend to replace or rejuvenate the creaking and sometimes ineffective machinery of zoning with new and flexible techniques approximating Br i t i s h development •"•Chapter 55, R.S.B.C., i 9 6 0 , o By-law 1*031, amending the Zoning and Development By-law 3575. •^ eg. Saskatchewan, Community Planning Act, R.S.S.C. 172, S. U6(b), and Ontario, Planning Act, R.S.O. C. 276, S. 123(c). c o n t r o l , Canadian zoning has undergone s i m i l a r e v a l u a t i o n by a d m i n i s t r a -t o r s , w r i t e r s and p o l i t i c i a n s . Meanwhile, the development c o n t r o l l e g i s -l a t i o n and r e l a t i v e l y r e c e n t experience of A l b e r t a , Ontario and other Canadian provinces has a l s o been under some s c r u t i n y , w i t h p a r t i c u l a r regard t o i t s f e a s i b i l i t y as an a l t e r n a t i v e or replacement f o r zoning. One p a r t i c u l a r l y n o t a b l e f a c t o r of Canadian development c o n t r o l , as d i s t i n c t from both the B r i t i s h p r a c t i c e and i n i t i a l American attempts, i s i t s concurrent operation w i t h e x i s t i n g zoning r e g u l a t i o n s . In many provinces development c o n t r o l l e g i s l a t i o n or i t s t a c i t l y approved p r a c t i c e e i t h e r serves as a d i r e c t replacement f o r zoning or c o - e x i s t s and i s u t i -l i z e d i n company w i t h i t . The o r i g i n a l i n t e n t of the A l b e r t a l e g i s l a t i o n , f o r i n s t a n c e , was t o u t i l i z e " i n t e r i m " development c o n t r o l f o l l o w i n g a r e s o l u t i o n t o prepare a general p l a n and only up t o and u n t i l the i n s t i t u -t i o n o f zoning r e g u l a t i o n s . Nonetheless, and i n apparent r e c o g n i t i o n of the p r e f e r e n t i a l advantages of development c o n t r o l , l a t e r l e g i s l a t i o n a u thorized the M i n i s t e r t o suspend the zoning r e g u l a t i o n s of any p a r t i c u l a r area and permit the use of " i n t e r i m " development c o n t r o l , and both develop-ment c o n t r o l and zoning can now be used as a means of r e g u l a t i n g l a n d use at one and the same time a f t e r a general plan has been adopted.(Laux, 1972, 10) The M i n i s t e r ' s power to suspend zoning has been j u d i c i a l l y extended to a l l o w a m u n i c i p a l i t y t o take l a n d c u r r e n t l y under the zoning by-law and p l a c e i t under development c o n t r o l , although the reverse does not y e t appear p o s s i b l e . 1 I n B r i t i s h Columbia, S.702A, which au t h o r i z e s the c r e a t i o n of development areas and use of a " l a n d use c o n t r a c t " , i s found w i t h i n 1See Bohey v. C i t y of Edmonton, 1971, S.C. 1*6 " D i v i s i o n (3) - Z o n i n g " , and e x p r e s s l y a l l o w s a landowner to d e v e l o p Under e x i s t i n g z o n i n g r e g u l a t i o n s s h o u l d he n o t w i s h t o c o n t r a c t - w i t h -the m u n i c i p a l i t y , ( S , 702A (8) M u n i c i p a l A c t R.S.B.C. I960 C . 2 5 5 , as amended). S i m i l a r r e c o g n i t i o n o f t h e c o m m u t a b i l i t y o f z o n i n g and development c o n t r o l i s i m p l i e d i n t h e O n t a r i o . p r a c t i c e w i t h o u t , o f c o u r s e , l e g i s l a t i v e a u t h o r i z a t i o n . The O n t a r i o M u n i c i p a l B o a r d however a p p a r e n t l y f e e l s t h a t t h e u s e o f development c o n t r o l s h o u l d be s t r i c t l y " i n t e r i m " and as an a r e a becomes more u r b a n i z e d development c o n t r o l shouTdbe r e p l a c e d b y t h e l e s s f l e x i b l e b u t t r a d i t i o n a l z o n i n g c o n t r o l s : Re I n g l e w o o d P a r k , London B y - l a w CP 1590196 (1965). ( c i t e d i n A d l e r , 1971, 102) S i m i l a r r e c o g n i t i o n t h a t b o t h z o n i n g and development c o n t r o l • s h o u l d be a v a i l a b l e and u t i l i z e d f o r f u l l and e f f e c t i v e development o f l a n d r e s o u r c e s has been advanced b y a s p e c i a l committee r e p o r t of t h e R o y a l A r c h i t e c t u r a l I n s t i t u t e o f Canada. N o t i n g l i t t l e o r no o b j e c t i o n t o t h e o p e r a t i o n ~of development c o n t r o l I n A l b e r t a , t h e committee m a i n t a i n s t h a t e f f e c t i v e u s e o f c o n d i t i o n a l zones and' d i s c r e t i o n a r y powers i n t r a d i t i o n a l z o n i n g a d m i n i s t r a t i o n w o u l d n a r r o w t h e gap between z o n i n g and development c o n t r o l , and i t s t r o n g l y a d v i s e s t h a t b o t h forms be a v a i l a b l e f o r u s e b y m u n i c i p a l and r e g i o n a l a u t h o r i t i e s . ( R A I C , 1965, 25) The O n t a r i o Law Reform Commission however, i s somewhat l e s s c o n v i n c e d and has e x p r e s s e d c o n c e r n w i t h t h e p a r t i c u l a r r e q u i r e m e n t s and t h e t i m e consumed b y p u b l i c b o d i e s and p r i v a t e d e v e l o p e r s i n p r o c e s s i n g t h e t h r e e l e v e l s o f z o n i n g , t h e o f f i c i a l plan'j and development c o n t r o l . (OLRC, 1971, 12) A s e c o n d m a j o r c h a r a c t e r i s t i c o f C a n a d i a n development c o n t r o l l e g i s l a t i o n i s t h e r e t e n t i o n o f s u p e r v i s o r y c o n t r o l by t h e hi p r o v i n c i a l government. A t l e a s t f o u r provinces now provide f o r a form of p r o v i n c i a l a d m i n i s t r a t i v e t r i b u n a l t o enforce l o c a l procedures arid standards, and i n three more m i n i s t e r i a l approval of c o n t r o l by-laws i s r e q u i r e d . ( A d l e r , 1968, 162) C e n t r a l i z e d c o n t r o l seems t o be an inherent f a c t o r of development c o n t r o l and the B r i t i s h p r a c t i c e of e x e r c i s i n g c o n t r o l from the n a t i o n a l government down t o l o c a l c o u n c i l s appears t o have had i n f l u e n c e on Canadian procedure. I n t e r e s t i n g l y , the American Law I n s t i -t u t e ' s Model lai d Development Code suggestions f o r the i m p o s i t i o n of c e r t a i n s t a t e c o n t r o l s i n concert w i t h a development c o n t r o l procedure i s remarkable a k i n t o the B r i t i s h model.(ALI D r a f t 3, 1971) C r i t i c a l e v a l u a t i o n of American zoning procedures can g e n e r a l l y be a p p l i e d , m u t a t i s mutandis, t o Canadian methods as w e l l , although some c r i t i c s have i n j e c t e d a p a r t i c u l a r l y Canadian f l a v o u r . Haar's concern w i t h the l a c k of comprehensive planning i n American zoning l e g i s l a t i o n ' ' " , f o r i n s t a n c e , has been a m p l i f i e d i n t h i s country by M i l n e r . He notes t h a t because of the frequency of amendment made necessary by the zoning by-law's i n f l e x i b i l i t y , comprehensiveness i s w e l l n i g h i m p o s s i b l e , ( M i l n e r , 1962b, h9) and t h a t few pr o v i n c e s have preceeded t h e i r i n t r o d u c t i o n of zoning by-laws w i t h any concept of a comprehensive plan.(RAIC, 1965, 7) Cumming, however, has noted a t r e n d i n Canadian zoning p r a c t i c e towards gre a t e r attempts a t comprehensiveness, (Gumming, 1955, 122) encouraged, i t might be supposed, by the i n c r e a s i n g use of development c o n t r o l techniques. Reps and M a k i e l s k i have commented th a t zoning i n the U n i t e d S t a t e s i s becoming i n c r e a s i n g l y a l i e n t o the planner, although supported by the p o l i t i c a l f o r c e s , (Makielski,1967, 17), and McNairney makes s i m i l a r "^Charles Haar, "In Accordance With A B a s i c P l a n " , 68 Harvard Law Review, 115U. (1951*) ' conclusions i n the Canadian context. While the people are enthusiastic about zoning, he notes, "the p r o f e s s i o n a l s hope i t gets lost."(McNairney, 1961, 121) Milner however, f e e l s that the task of a zoning draughtsman i s made impossible by a lack of l e g i s l a t i v e d i r e c t i o n (Milner, 1962b, 1+9), and h i s committee report amplifies t h i s lack of f a i t h by the planners i n the r i g i d standards of the zoning by-law. (RAIC, 196$, 7) Although the advantages of development c o n t r o l are now r e c e i v i n g considerable concern and favourable recommendation by the American Law I n s t i t u t e i n t h e i r Model Land Development Code, these p o s i t i v e factors have been i m p l i c i t i n Canadian planning f o r some time. In 1957, E a r l Levin suggested th a t Canadian land use p r a c t i c e was moving towards a form i f development c o n t r o l (Levin, 1957), and the report of the Royal A r c h i t e c t u r a l I n s t i t u t e of Canada borrowed h e a v i l y from Alberta's l e g i s l a t i o n and Ontario's p r a c t i c e f o r t h e i r recommendations f o r the implementation of development c o n t r o l i n Canada.(RAIC, 1965) A n a l y s i s df the Ontario use, p a r t i c u l a r l y i n the C i t y of London 1, enabled Adler to conclude that development co n t r o l o f f e r s advantages of f l e x i b i l i t y , use of a v a i l a b l e land, and coordination of the i n t e r e s t s of planners and developers superior to zoning,, while i t s p r e d i c t a b i l i t y i s at l e a s t equal to that of more t r a d i t i o n a l methods.(Adler, 1971, 103) Milner however maintains that development c o n t r o l i s l e s s p r e d i c t a b l e than zoning, at l e a s t f o r the developer, because the p o l i t i c a l values involved i n a l l land use controls are more r e a d i l y apparent i n property already zoned f o r development than i n areas without t h i s p r i o r i n d i c a t i o n . ( M i l n e r Lecture, March 28, 1968) 1 See also, Guard, "The Implementation of Development Controls i n London". Unpublished Conference paper, n.d. k9 Certain problems have of course also arisen with the use of develop-ment control. The City of Edmonton, for instance, has been c r i t i c i z e d for i t s "unnecessarily broad definition of development", amounting, i t i s claimed to expropriation without compensation (Stevenson, 1962, 1*38), and the permissive aspect of the Calgary legislation has apparently involved that c i t y i n a number of court actions.(Martin, 1962 and Calgary Herald, March,11, 1972) In Vancouver, on the other hand, developers have apparently expressed grievance with too s t r i c t an administrative policy i n the processing of development permit applications (Geronazzo, 1961*, 6), while i n Ontario the major problem i s seen to be the requirement of a "large...educated" (Adler, 1971, 103) and "superior" staff to deal with development control methods. (RAIC, 1965, 23) Particular Canadian attitudes and the available use of both zoning and development controls have offered considerable scope to land use control legislation i n this country. Many of the i n f l e x i b i l i t i e s and jurisdictional problems that have been encountered in American zoning have not appeared to pose a problem i n the Canadian context, where the influence of B r i t i s h tradition and experience has permitted planners a greater degree of discretion in the administration of zoning by-laws and has f a c i l i t a t e d the implementation of development control. 50 LAND USE AND DEVELOPMENT CONTROL AND THE COMPREHENSIVE PLAN Questions concerning the co-relation of zoning and development control with the concept of comprehensive planning have seemingly been a major component i n any study of land use and development control, and their tortuous relationship and failure to practically and complementally co-exist gives some understandings of the workings and failings of land use control and zoning as a whole. The Standard State Zoning Enabling Act, expanding on Bassett's original thesis, introduced the concept of comprehensiveness in 1926. Section 3 of that act decreed that a l l ordinances "shall be drawn in accor-dance with a comprehensive plan", f a i l i n g which the zoning would be liable to be rendered ul t r a vires. While Bassett undoubtedly intended that the "comprehensive plan" should be a set of planning principles, legislatures implementing the act provided no further meaning or substance to the term, and the courts i n their attempts to induce meaning have tended to define i t rather differently. Thus, although the "comprehensive plan" i s theoretically open to mean either "well considered" or "geographically complete" (Stevens, 1969, 265), judicial preference tends towards the latter and the courts have apparently been able to direct nothing more than that the zoning ordinances should be "comprehensive, i.e. uniform and broad i n scope of coverage".(Haar, 1955, 1157) As Reps concludes, whatever we think state legislation says about the necessity to ground zoning i n a well-considered or comprehensive plan, the courts by and large have interpreted such a plan to be the zoning map i t s e l f " . (Reps, 1961*, 5) The land-mark Euclid decision 1 established this geographic definition (Pooley, 1961, 1*5), LEuclid v. Ambler Realty Co. 1926, 272, U.S. 365. and this meaning has apparently similar acceptance in the Canadian context. (Milner, 1962b, U8) Because of this early distortion and confusion in meaning, and without legislative encouragement, i t appears that l i t t l e inter-relation between zoning and comprehensive planning ever existed i n North American municipalities, and that few communities can actually claim their zoning regulations stem from any comprehensive plan.(Reps, 1955, 5) A survey undertaken in 1965 revealed that American municipalities seldom identify the "master plan" with the "comprehensive plan" requirement of the state enabling statutes, and that only about half of those areas with compre-hensive planning have i n fact adopted a master plan.(Cunningham, 1965, 383) Similar indications are available for Canada and although the use of the comprehensive plan i s apparently on the increase (Cummings, 122) , i t has been noted that even i n Ontario, where legislation requires referral to the o f f i c i a l plan, few communities have as yet drafted effective community plans. By 1966 only 11% of local Ontario municipalities, though admit-tedly representing the bulk of that province's urban population, had any o f f i c i a l plan at a l l . (Adler, 1971, 11) A major exception of course i s wherever development control has been introduced. In Alberta's legislation, control i s to be exercised on the basis of the merits of each individual application, "having regard to the proposed development conforming with the general plan prepared or as 1 2 adopted". Ontario's Planning Act similarly contemplates the preparation and approval of o f f i c i a l plans prior to enactment of restricted area, or zoning, by-laws (OLRC, 1971, 9 ) , and only in Br i t i s h Columbia i s the ""•S.IOO ( 2 ) , Alberta Planning Act, Chapter 276, 1970 R.S.A. 2R.S .0 , 1970, C.3U9 52 exercise of development control, via the land use'contract, now possible without the preparation of a community plan or evidence of some other form of comprehensive planning. Canadian c r i t i c s are certain however in their recommendations that .development control not be exercised without the presence of a comprehen-'Sive plan. Milner has stated that "development control without master planning i s as weak as piece-meal zoning" (Milner, 1962b, 5U), and the Royal Architectural Institute's study i s more emphatic: "Without this back-ground of a plan properly prepared and published.so as to be readily available, we recommend unequivocally that no municipality should engage in any form of development control, whether by traditional zoning byQlaws or other-wise" . RAIC, 1965, 22) The American Law Institute in the monumental Model Development Code has apparently rejected the overall requirement of a written plan for future land development which requires o f f i c i a l adoption, and has instead elaborated certain controls and power which cannot be used by local governments u n t i l they have provided "written evidence of forethought" or, in some few instances, an o f f i c i a l plan. (ALI Draft 2, A r t i c l e 3)' Even then, some American c r i t i c s are disturbed that this attitude reflects legal intentions to t o t a l l y eliminate the scope for arbitrary decisions, and may not be the most suitable planning solution.(Delafons, 1969, 137) What i s interesting ..however i s that these attempts, to .co-ordinate development and use controls with comprehensive planning are of such a late date. 53 One p l a u s i b l e explanation, advanced by Haar, records the r e l a t i v e l y l a t e i n t r o d u c t i o n and development of the planning profession, reaching an active energy l e v e l somewhat l a t e r than the e a r l y i n s t i t u t i o n of zoning and assumedly never able to a c t i v e l y impress planning i d e a l s on the already established land use c o n t r o l mechanism.(Haar, 1955, 1157) Planning there-fore tended to be a. l a t e r i n t r o d u c t i o n to l o c a l area administration and i n many instances f a i l e d t o provide active co-ordination with e x i s t i n g zoning. The s i t u a t i o n i n Canada i s s i m i l a r and Rogers has observed: "Community planning i s a r e l a t i v e l y new form of municipal a c t i v i t y and i s at the same time a concomitant and an outgrowth of the powers of l o c a l a u t h o r i t i e s to regulate land use by means of zoning regulations".(Rogers, 1959, V. 2, 75U) In any event, as another commentator notes, most of the "master plans" that were adopted f o r municipal use o r i g i n a t e d i n the 1910-19U0 " C i t y B e a u t i f u l " p e r i o d and were never intended as guides to the exercise of c o n t r o l over land use. Consequently, zoning developed i t s own philosophy and tended to emphasize the d i f f e r e n c e s between land uses rather than the r e l a t i o n s h i p s that t i e them together.(Cunningham, 1965, 383) M a k i e l s k i , on the other hand believes that the administrative and p o l i t i c a l structures o f f e r no encouragement f o r comprehensiveness, and t h a t while the l e g a l theory of use controls envisions a r e l a t i v e l y coherent, open system of comprehensible and p r a c t i c a l standards applied to the commun-i t y as a whole, "the p o l i t i c a l system demands nea r l y the opposite". (Makielski, 1967, 19) This p o l i t i c a l antipathy towards comprehensiveness i s heightened, he claims, by the geographic nature of pressure groups that don't look beyond t h e i r own community of i n t e r e s t s . ( M a k i e l s k i , 1967, 19) Even i n Canada, there i s s u r p r i s i n g l y l i t t l e encouragement to the use of comprehensive planning i n land use controls. Milner's committee notes that no Canadian province, with the exception of B r i t i s h Columbia, provides any legislative purpose or rationale for the carrying out of a development plan or the securing of i t s benefits, and that general provincial encouragement i n this regard i s lacking.(RAIC, 1965, 7) Adler's study of the Ontario Municipal Board reveals that the Board makes very few references to o f f i c i a l plans and that "detailed consideration of the plan i s the exception and not the rule".(Adler, 1968, 109) Generally, the Board i s more attentive to the individual development proposal i t s e l f than to the o f f i c i a l plan for the area, yielding, so Adler claims, to the impression that the proposal dictates the plan and not the converse.(Adler, 1965, 112) Another explanation advanced for the i n a b i l i t y of comprehensive planning and zoning to functionally coincide i s that the general public i s basically unaware of the relevance of the comprehensive plan and the poten-t i a l of i t s relationship with zoning. The Ontario Law Reform Commission, for instance, has complained that public opposition i s being voiced at hearings into individual development proposals, when i t should instead arise at hearings on the comprehensive plan (OLRC, 1971, 10), and the Municipal Board appears to suggest that the weakness of development con-t r o l l i e s not i n the technique but i n the failure of the public and involved parties to inspect the o f f i c i a l plan.(Adler, 1968, 103) Adler identifies three reasons for this lack of public knowledge: 1) the enabling legislation directs i t s e l f at the policy-makers and their relationship to the plan, without mention of the average c i t i z e n 1 s involvement; 2) the act does not require a public hearing prior to the adoption of an o f f i c i a l plan, as i t does with a rezoning; and 3) the jargon used i n the enabling act and the ordinance somewhat obfuscates the effect of the plan on the citizen.(Adler, 1971, 110) 55 The Ontario Law Reform Commission has added a f o u r t h : k) the plan's s t a g i n g i s b a d l y misunderstood by the c i t i z e n s who v i s u a l i z e the long-range plans so p r e f e r r e d by planners as having i n s t e a d immediate and short-range implementation. (OLRC, 1971, 9) Nonetheless, planners and other p r o f e s s i o n a l s concerned w i t h l a n d c o n t r o l almost u n i v e r s a l l y agree t h a t c e r t a i n v e r y s i g n i f i c a n t advan-tages accrue wherever zoning c o n t r o l s are used i n c o n j u n c t i o n w i t h a comprehensive p l a n . The comprehensive p l a n provides c o n s i d e r a b l e guidance f o r the e x e r c i s e o f zoning and other p l a n n i n g c o n t r o l s , and thus helps guard a g a i n s t " a r b i t r a r y d i s c r i m i n a t i o n and i r r a t i o n a l i t y " . ( H e y m a n , 1970, hi) I n a d d i t i o n t o calming t h i s p a r t i c u l a r American fear. ;j i t f u r n i s h e s the p u b l i c w i t h a r e a l i z a t i o n of t h e i r expectations and a y a r d s t i c k a g a i n s t which zoning and development c o n t r o l progress can be measured (Laux, 1972, 36), and provi d e s a sounder l e g a l b a s i s f o r the zoning ordinance. Where the comprehensive p l a n i s not employed, a number of adverse e f f e c t s have been both noted and p r e d i c t e d , i n c l u d i n g a tendency f o r development t o be fr o z e n t o i t s e x i s t i n g p a t t e r n , the production o f a host o f unexpected and f r e q u e n t l y u n d e s i r a b l e r e s u l t s , and a t o t a l l o s s of comprehensiveness i n the development pattern.(Goodman & Freund, 1968, 1*05) As Laux notes, what remains i s a "planners' nightmare of an i n c o n s i s t e n t and v a r i e d patchwork of l a n d uses".(Laux, 1971, k) While however there i s widespread b e l i e f t h a t use the development c o n t r o l s should not be e x e r c i s e d without the ex i s t e n c e of some form of comprehensive p l a n or guide t o development, there i s some v a r i a t i o n i n t h i n k i n g concerning the nature of i t s extent. Many commentators have proposed t h a t 56 the master or comprehensive p l a n should be nothing s h o r t of mandatory, e i t h e r immediately upon the undertaking of use or development c o n t r o l s (Reps, 196U, 7 ) , or a f t e r a p e r i o d of grace ( W i l l i a m s , 1966, 8 ) , but i n any event p r i o r t o the e x e r c i s e of zoning. Others however f e e l t h a t only the more d i s c r e t i o n a r y c o n t r o l s should be w i t h - h e l d from a community or l o c a l a u t h o r i t y u n t i l i t has a master p l a n or has a t l e a s t shown i t s e l f capable of adequately d e a l i n g w i t h c u r r e n t development problems.(Smith, 1969) The American Law I n s t i t u t e maintains t h a t t h i s approach represents a compromise between the extremes of a s t a t i c master p l a n c o n t r o l l i n g a l l development and the g r a n t i n g of wide d i s c r e t i o n a r y powers t o l o c a l o f f i c i a l s t o use as they raay.(ALI, D r a f t 3 , x v i i ) S i m i l a r attempts t o r e s t r i c t the use of c e r t a i n c o n d i t i o n a l zoning powers i n Ontario t o communities w i t h an adopted o f f i c i a l p l a n have r e c e i v e d the p r a i s e of t h a t province's Law Reform Commission (OLRC, 1971, 1 3 ) , although B r i t i s h Columbia's l e g i s l a t i o n r e s t r i c t i n g the use of S. 702A t o connnunities w i t h a p l a n has now been repealed. In A l b e r t a , M i n i s t e r i a l approval i s r e q u i r e d before the e x e r c i s e of development c o n t r o l i n the f i r s t i n s t a n c e , and Laux suspects t h a t t h i s requirement i s t i e d i n w i t h whether or not the m u n i c i p a l i t y i n q u e s t i o n i s capable of p r o p e r l y a d m i n i s t e r i n g such a h i g h l y d i s c r e t i o n a r y system of l a n d use c o n t r o l . ( L a u x , 1971, 11) CHAPTER III - AN ANALYSIS-OF THE ZONING PROCESS ZONING: ITS PRACTICAL FAILURES AND THEORETICAL DEFICIENCIES "Zoning i s seriously i l l and i t s physicians-the planners-are mainly to blame. We have unnecessarily prolonged the exis-tence of a land use control device conceived in. another era when the true and frightening complexity' of urban l i f e was barely appreciated. We have, through heroic efforts and with massive doses of legislative remedies, managed to preserve what was once a lusty infant not only past the retirement age but well into s e n i l i t y . What i s called for i s legal euthanasia, a respectful requiem, and a search for a new legis-lative substitute sturdy enough to survive in the modern urban world." (John Reps, 196U, 1) "The zoning process i s basically an exercise in myth-making, an invitation to corruption in local government, an instru-ment • of the real estate interests, and an involved and time-consuming technical activity that rarely produces concrete results in urban planning terms." (Makielski, 1 9 6 7 , 1 ) "Most development i s now occuring by way of modification in pre-established rules and not as a satisfaction of them... The present system- i s both theoretically and mechanically incapable of handling a flexible response to development." (Krasnowiecki, 1 9 7 0 , 3 , and Marcus, 1 9 7 0 , 1 9 3 ) "It i s now clear that conventional zoning and subdivision regulations are not appropriate devices for regulating most of our future urban development." (American Society of Planning O f f i c i a l s , 1 9 6 8 , k3) While the prevalent zoning theory and procedure appears to have secured a substantial degree of public and p o l i t i c a l acceptance, (Bryden 1 9 6 7 , 2 8 7 ) i t i s being regarded with considerably less enthusiasm 58 by those most concerned with i t s practical functioning. Zoning i s increasingly under attack as a form of unnecessairly r i g i d regulation "rooted in outmoded tradition and inhibiting desirable change and experi-mentation", (Bair & Bartley, 1966, 2) and i s c r i t i c i s e d by an increasing number of planners, lawyers and urban specialists for i t s notable fa i l u r e in combatting emerging woes. Such criticism has been generally construc-tive, although analysis of the problems have proven-somewhat-difficult. As. one urban c r i t i c notes, "Planning law has blundered into a whole series of intellectural deadends because our substantive planning concepts are incom-pletely thought through."(Williams, 196U, 9k) In addition, the remarkable tenacity of the zoning process to resist change, public and p o l i t i c a l complacency, and some judi c i a l h o s t i l i t y have proved to be major impediments to reform of the: process, and many recommendations have remained largely academic. 1. Theoretical Deficiencies One of the most basic -criticisms of traditional zoning theory i s that it-remains an essentially negative form of control, and-runs counter to both the classical social and p o l i t i c a l philosophy and.the prevailing or contemporary p o l i t i c a l theory which believes that a set of positive.actions can improve the status of mankind.(Makielski,-1967, 13)- The American Law Institute has predicted that the'prohibitive nature of zoning w i l l l i k e l y render i t eventually ineffective (ALI Draft 3,- p.xi) but i t i s exactly i t s negative aspect and ease of understanding that apparently underly the popular support of zoning. As Makielski emphasizes in his treatise on zoning and p o l i t i c s , when applied to the p o l i t i c a l and administrative arena, i t i s really theoretically and practicably more feasible to anticipate future 59 di-ff i c u l t y by a process of negation than one of causation. (Makielski, 1967, 1U) A related criticism i s that zoning i s aimed primarily at the existing "use" of land and, ignores i t s "development" aspect.(Makielski, 1967, 10) It i s claimed that zoning requires pre-designation and therefore can only adequately deal with already developed areas or, at the least, those with the probabilities of development (Heeter, 1969, 5 9 ) , so that decisions relating to the "development aspect" must be made prior to any rational basis for so doing. By thus concentrating on existing or probable use and f a i l i n g to provide significant development guidance, zoning ultimately slights developing properties and loses val i d i t y i n the face of changing market-economic and social conditions.(Heeter, 1969, 59) This i n a b i l i t y to sensatively relate to the changing social struc-ture represents another zoning deficiency. Because i t i s essentially negative i n expression, zoning appears to foster certain inequalities. Not only has considerable criticism been directed at the imposition of minimum standards for some residential classifications and the resulting encourage-ment of distinct forms of undesirable social and economic discrimination"1" but i t i s claimed that even current zoning theory f a i l s to recognize the relationship between different uses, an increasingly important factor i n modern large-scale or multiple-use projects.(Heeter, 1969, 63) Makielski feels that a public interest i s incapable of definition i n traditional zoning, and therefore the process has become prey to a l l description of See generally, Pooley, 1961, Sussna, 1969 and Davidoff, 1971. 60 p o l i t i c a l and pressure group persuasion, with the likelihood of a "common good" or "publicinterest" emerging being slight indeed.(Makielski, 1967, 16) Extending the admission that zoning has certain obvious p o l i t i c a l and economic advantages and that the public interest might not be adequately-protected by the process, Marion Clawson has suggested that zoning be sold, much like a mineral lease, to the highest bidder.(Clawson, 1966, 9) This proposition has however received short shrift from c r i t i c s and has drawn the i r e of the Municipal Law Officers Association who note, "We cannot imagine a worse method of exercising a municipalities power to control land use for the benefit of the public as a whole. Can you imagine the chance for skull-duggery?"(Stickle, 1968, U23) 2- Practical Failures Deficiencies in the theory have also resulted in significant prac-t i c a l d i f f i c u l t i e s encountered in the enforcement of traditional zoning regulations. Makielski's thesis on p o l i t i c s and the zoning process maintains that the politicians have detached themselves from the public arena and so have forfeited control over land use and development, to competing public interest groups.(Makielski, 1967, 17) The real public interest or general welfare of the individual, he argues, as a "single theoretical unit", has been overlooked and has lost i t s meaning.(Makielski, 1967, 19) According therefore to this line of reasoning, any improvement and land use control process must make adequate provision for the direct and personal involvement of the general public i n a manner to ensure their contribution. 61 The planners too have been accused of abrogating t h e i r responsi-b i l i t y i n the zoning process, and because neither they or the elected c o u n c i l s , seem prepared to make c l e a r decisions, that function has been passed on to the courts.(Makielski, 1967, 17) While there i s some conten-t i o n that the planners were, i n any event, inadequately educated(Blucher, 1955, 96), there i s greater concern that the courts, because they do not possess the r e q u i s i t e expertise to determine issues of incr e a s i n g t e c h n i -c a l i t y and complexity, are not the proper bodies to be so involved i n the zoning process.(Reps, 1961*, 6) Williams however f e e l s that the courts have been generally u n s a t i s f a c t o r y only because they are faced by a d i s t i n c t lack of planning guidance (Williams, 196U, 95), and t h i s undoubtedly r e f l e c t s i n the past j u d i c i a l t r a d i t i o n to allow the o r i g i n a l l e g i s l a t i v e judgment on zoning matters to stand.(Pooley, 1961, 83) The primary reason f o r t h i s general absence of d i r e c t i o n s and standards from the zoning process (Blucher, 1955, 96) l i k e l y l i e s with the f a i l u r e of zoning to coincide with the concept of the comprehensive plan. Bearing no re q u i r e d r e l a t i o n to o v e r - a l l development plans, zoning has been described as both "blunt and imprecise" (Pooley, 1961, 71), and has been characterized a s . . . " e s s e n t i a l l y a set of Marquis of Queensbury r u l e s f o r r e a l - e s t a t e speculators rather than a comprehensive development guide." (Bamett, 1970, 126) The most t e l l i n g p r a c t i c a l c r i t i c i s m of zoning, and c e r t a i n l y the most o f t - c i t e d , i s i t s r e l a t i v e r i g i d i t y and lack of f l e x i b i l i t y . As Makielski notes, what was i n theory a r a d i c a l idea has now become severely l i m i t e d by r e s t r i c t i v e p r a c t i c e s . ( M a k i e l s k i , 1967, lU) Formerly, the s t r i c t n e s s of land use ordinances were mitigated through l e g i s l a t i v e 62 permission to consenting land-owners t o breach c e r t a i n regulations (Pooley, 1961, 1+9), now the Boards of Variance and Appeal provide some r e l i e f to zoning r i g i d i t y . Indeed, the use of appeal proceedings i s an i n t e r e s t i n g indictment of the zoning process, f o r as one author notes, " I f a system can be judged by the frequency of the departures from i t , zoning f a i l s spectacularly".(Anon., 1969, 673) Milner laments t h i s necessity f o r the r e l a x a t i o n of overly r i g i d zoning ordinances with an appeal process (Milner, 1962b, 1+9), although Aykroyd supports the appeal p r a c t i c e as a "good thing" and notes that i t "saves the mistakes of the Council and the approving a u t h o r i t i e s from being perpetuated".(Aykroyd, 1969, 31) The i n f l e x i b i l i t y of zoning perhaps has i t s biggest impact on form. A r c h i t e c t s maintain that zoning serves to r e s t r a i n rather than encourage design i n i t i a t i v e (Cramer, I960, 90), and others characterize i t as hopeless i n attempts to integrate la r g e - s c a l e developments.(Heeter, 1969, 63) John Reps, one of the more vigorous opponents of zoning p r a c t i c e , notes that by attempting to provide d e t a i l e d standards f o r a l l conceivable s i t u a t i o n s , zoning has only served to segregate the f u n c t i o n a l portions of c i t i e s r a ther than integrate them: "We have Balkanized our c i t i e s i n t o d i s t r i c t s with p r e c i s e and r i g i d zoning".(Reps, 1961+, 5) A large proportion of the suggestions f o r reform now s t r e s s the attainment of zoning f l e x i b i l i t y through due r e c o g n i t i o n of the v a r i a b l e s i n each s i t u a t i o n and t h e i r sensative i n t e g r a -t i o n . (Krasnowiecki, 1970, 7) The impact however of zoning has been perceived everywhere on the urban and r u r a l landscape and has caused many p r o f e s s i o n a l planners to "regard zoning more of a hindrance than a help i n c i t y planning". (Cunningham, 1965, 383) Understandably then, a number of solutions to the problems of-63 zoning have been advanced over the past two decades which, w h i l e they v a r y c o n s i d e r a b l y i n t h e i r terms and i m p l i c a t i o n s , deserve some f u r t h e r c o n s i d e r -a t i o n . SOLUTION NO. 1: THE ELIMINATION OF ZONING AND PRIVATE LAND USE CONTROLS There have been o c c a s i o n a l suggestions t h a t zoning be completely r e p l a c e d by some a l t e r n a t e , but p r i v a t e , means of l a n d use c o n t r o l . The best p r a c t i c a l example of s e c u r i n g such c o n t r o l on a l a r g e s c a l e i s t h a t of Houston, Texas. Operating without any form of zoning o r s i m i l a r p u b l i c l a n d use c o n t r o l , a p r a c t i c e r e f e r r e d t o by i t ' s opponents as "The Houston Heresy" (Delafons, 1969, 132) , use c o n t r o l i s achieved through e x t e n s i v e use of p r i v a t e deed r e s t r i c t i o n s s u s t a i n e d and supported v i a the market mechan-ism. (Welch, 1967, 2$7) Since 1929 when proposals t o i n s t i t u t e zoning c o n t r o l s were f i r s t defeated by p u b l i c referendum, p r i v a t e deed c o n t r o l s have continued t o achieve preference over zoning, and i t s supporters c l a i m t h a t Houston has s u c c e s s f u l l y grown without zone l i m i t s w h i l e e x p e r i e n c i n g , i n any event, no g r e a t e r problems than w i t h any other c i t y operating under t r a d i t i o n a l zoning r e g u l a t i o n s . ( W e l c h , 1967, 25>7) F u n c t i o n a l l y , the use, i m p o s i t i o n and enforcement of r e s t r i c t i v e covenants i s i n i t i a l l y encouraged through the a c t i v i t i e s o f c i v i c c l u b s , which operate much l i k e any neighbourhood community o r g a n i z a t i o n but can, i f necessary, request a s s i s t a n c e from the c i t y t o enforce deeds i n s o f a r as they may a f f e c t the use of prop e r t y . (Delafons, 1969, 132) This m u n i c i p a l power o f enforcement, long a p r a c t i c e , has f i n a l l y been legalized''" as a 1965 Texas S t a t e Ordinance, A r t i c l e 9 7 h a-l 6U " l a w f u l and l o g i c a l adjunct t o the p o l i c e power".(Olson, 1967, 269) Coven-ants which v i o l a t e the U.S. or S t a t e C o n s t i t u t i o n cannot,, of course, be enforced by e i t h e r the c i t y o r p a r t i e s t o the deeds. Despite the apparent r e l a t i v e success Houston has had w i t h r e s t r i c -t i v e covenants ... O f f i c i a l s t h e r e admit however t h a t i t i s not even a good a l t e r n a t i v e t o zoning, but the only t o o l the c i t y has (Olson, 1967, 267) .. there has been no evidence o f other appreciable North American attempts at such e x c l u s i v e c o n t r o l by p r i v a t e means. The American Law I n s t i t u t e has adm i t t e d l y given some c o n s i d e r a t i o n t o suggestions t h a t the l o c a l government be empowered t o c o n t r o l or e l i m i n a t e covenants r e s t r i c t i n g l a n d use, and which f r e q u e n t l y thwart governmental guidance t o l o c a t i o n of use, but they u l t i m a t e l y concluded t h a t c o n t r o l and i n t e r f e r e n c e by l o c a l c o u n c i l s would only serve t o f u r t h e r complicate the process.(ALI D r a f t 3 , 23) S i m i l a r sentiments r e f l e c t the Canadian p o s i t i o n , and M i l n e r notes t h a t O n t a r i o p l a n n i n g l e g i s l a t i o n i s c h i e f l y concerned w i t h a system of c o n t r o l s t h a t would be s e l f - e x e c u t i n g , and not w i t h the b e n e f i t s and burdens of covenants as they r e l a t e t o adjacent land-owners. ( M i l n e r , 1965, 81) R e s t r i c t i v e covenants remain however as a v a l i d and l e g a l means of s e c u r i n g some form of l a n d c o n t r o l . They are p a r t i c u l a r l y u s e f u l , L e a l notes, when used t o order the amenities o f a community at the p o i n t where the zoning by-law leaves o f f . ( L e a l , I960, 182) Nonetheless, t h e i r use has never been widespread, c h i e f l y , i t i s claimed, because North American l a n d values have not s t a b i l i z e d , and because m u n i c i p a l i t i e s are r e c o g n i z i n g t h e i r o b l i g a t i o n s t o provide s e r v i c e s and are i n s t i t u t i n g more e f f e c t i v e c o n t r o l s . (Owens, 1967, 582) I n B r i t i s h Columbia r e s t r i c t i v e covenants apparently are considered a "minor p l a n n i n g t o o l " and r e c e i v e l i t t l e u s e . ( M e r r i f i e l d , 65 1963, 12) Traditionally, restrictive covenants are enforceable at common law by property owners benefiting from the covenant, but Bailey complains that because a previously existing financial interest may have dissapated, there i s often no longer a motive for prompt enforcement.(Bailey, 1965, 910) A municipality may therefore have to contend with covenants that are not only d i f f i c u l t to enforce but, where there are changed conditions, are unduly restrictive and undesirable, but d i f f i c u l t to remove.(Dallstream & Hunt, 195U, 238) Few restrictive covenants however contain time-limiting provisions. Nevertheless, i t would appear that ju d i c i a l termination can be secured where there i s merger, that i s to say, where a l l restricted areas come under common ownership, (Owens, 1967, 58U) or where conditions have so changed that the purpose of the agreement i s no longer served by i t s continued enforcement.(Trager, 1963, ihl) Although there are also some state l e g i s -lative provisions to invalidate such covenants, Owens feels that increased American legislation i s required to c l a r i f y the inadequate and unclear grounds to declaring covenants unenforceable,(Owens, 1967, 587) Where restrictive covenants exist i n company with zoning l e g i s l a -tion and there i s a conflict, American law appears to presume that the covenant prevails only i f i t r e s t r i c t s the land to a greater degree than the zoning ordinance. Zoning i s superior i f i t makes the use restricted by the covenant i l l e g a l . ( S t a i r , 196U, 36l) In Britain, on the other hand, the 19k7 Town and Country Planning Act allows the local authority to impose 6 6 r e s t r i c t i o n s on e x i s t i n g r e s t r i c t i v e covenants or discharge them, thus ensuring t h a t the o f f i c i a l p l a n i s paramount. S i m i l a r p r o v i s i o n s p r e v a i l i n A l b e r t a wherever there i s c o n f l i c t w i t h an o f f i c i a l p l a n , planning scheme or zoning by-law. ( M e r r i f i e l d , 1963, 2 & 9) Most a u t h o r i t i e s acknowledge t h a t a c l e a r i n g s t a t u t e i s needed t o terminate a r e s t r i c t i v e covenant t h a t has no~stated term of ex i s t a n c e and i s g e n e r a l l y u n d e s i r a b l e . ( A s c h e r , 1953, 262) I t now'appears however t h a t wherever there i s a p o l i c y of u s i n g covenants, time l i m i t s and t e r m i n a t i o n p r o v i s i o n s are r o u t i n e l y s p e c i f i e d . (Owens, 1967, 585) SOLUTION NO. 2: THE INTRODUCTION OF FLEXIBLE TECHNIQUES TO MODIFY ZONING " F l e x i b l e and d i s c r e t i o n a r y techniques ... are shaking the very foundations o f American zoning p r a c t i c e . " (Mandelker, 1 9 6 2 , 156) With i n c r e a s i n g f e r v o r , planners, lawyers and a d m i n i s t r a t o r s have been t u r n i n g t o a v a r i e t y of newly developing techniques i n attempts t o up-date and s u s t a i n t r a d i t i o n a l zoning p r a c t i c e s . Recognizing t h a t g r e a t e r f l e x i b i l i t y i n the c o n t r o l mechanism, and the i n c r e a s e d a b i l i t y t o deal w i t h proposed development on an i n d i v i d u a l b a s i s , c o u l d s u b s t a n t i a l l y reform and enervate the inadequacy of t r a d i t i o n a l zoning p r a c t i c e , attempts were made t o evolve and devise techniques t h a t would accomplish these ends without however unduly d i s r u p t i n g the zoning f a b r i c . A number of new p l a n n i n g c o n t r o l s r e s u l t e d . Despite encouraging progress i n the development of new techniques, the j u d i c i a r y continued t o be i n d i f f e r e n t and even s u s p i c i o u s - of the ad hoc 67 nature of these new flexible planning standards.(Counts, 1966, 6) The Courts, realizing that such methods were considerably less able to compre-hend and satisfactorily deal with the discretionary techniques than tradi-tional zoning, (Anon., 1969, 683) have found review time-consuming and frustrating, and i t has been suggested that the courts have failed to adjust their views to the changing times, and that the barriers to judicial appeal that were experienced have been no legal accident.(Anon., 1969, 68U) The development of new control mechanisms in attempts to solve the inadequacies of zoning has therefore been somewhat difficult: The courts have apparently declined to judicially distinguish between the various new methods, (Williams, 1961i, 93) and the resulting mystique created by a confusion in terminology has assumedly led many developers and protestors to claim that "zoning is manipulated by a small group of insiders at their expense."(ALI Draft 2, 2k) Nonetheless, four distinct attempts to obviate zoning flexibility have been developed with some success in meeting their purpose. 1. Spot Zoning The practice of individually zoning small parcels, generally described as "spot zoning1,', has been utilized in some form since the inception of zoning and can probably be characterized as the f i r s t of the techniques purporting to induce flexibility to zoning. Defined as a "provision in a zoning ordinance or a modification thereof which affects the use of a particular piece of property or a small group of properties and i t not related to the general plan of the community" (Wood, 1961, 238), spot zoning has been hard hit for its most damning characteristic - lack of inclusion in a comprehensive plan. 6 8 Nevertheless, the practice of individual attention to small parcels in a large and otherwise homogeneous use category has always been perceived as one means to avoid zoning r i g i d i t y and, as Milner points out, a l l spot zoning has not been bad and some i s even necessary.(Milner, 1962b, U? and 1956, 129 & 131) l e t wherever the forces of traditional zoning remain firmly ensconced, especially i n the U.S., spot zoning has tended to be regarded with marked j u d i c i a l hostility.(Cunningham, 1965, 397) The practice of individually treating small parcels within a larger unit without accord to a pre-designated plan has i n fact become so opprobrious there that ithe term "spot zoning" has apparently been considered a general perjorative label for any new and suspicious discretionary scheme.(Anon., 1969, 682) J u d i c i a l and administrative reception of spot zoning i n Canada has tended to be more receptive and l i b e r a l , and Milner feels that at least the Ontario Bench i s well aware that some bias necessarily exists, and that a l l parcels cannot be treated equally.(Milner Lecture, April 11, 1968) The Supreme Court of Canada decision i n Scarborough V. Bondi 1 appears to recognize that i t i s sometimes necessary to treat land differently, and the precedential effect of this decision has tended to f a c i l i t a t e the use and reception of spot zoning here. There i s however some indication that the American courts are also becoming increasingly receptive to such techniques as spot zoning and, so long as an individualized zoning i s "related to something broader and beyond i t s e l f " , i t assumedly has a good chance of j u d i c i a l approval.(Anon., 1969, 670) Described otherwise, there must be evidence of both "rationality" defined as the indication that certain planning a c t i v i t i e s in the form of 1 1 9 5 9 , 18D.L.R. (2d.) 161. 69 l a n d use a n a l y s i s and p o l i c y f o r m u l a t i o n have been c a r r i e d out i n the area, and " e q u a l i t y " , g e n e r a l l y l i n k e d t o the " i n accordance w i t h a comprehensive p l a n " requirement.(Heyman, 1970, 25) Nonetheless, without l e g i s l a t i v e d e f i n i t i o n and w i t h hedging j u d i c i a l a p p r o v a l , spot zoning has tended t o be u t i l i z e d somewhat i n f r e -q u e n t l y and, apparently because i t i s not g e n e r a l l y i n accordance w i t h a comprehensive p l a n and tends t h e r e f o r e t o r e s u l t i n u n a n t i c i p a t e d and uneven development p a t t e r n s , l o c a l c o u n c i l s and planners are somewhat l o a t h e t o recommend i t s u s e . ( M i l n e r , 1962b, hi) 2. The Variance Because i t has l e g i s l a t i v e d e f i n i t i o n , v a r i a t i o n of the terms of the zoning ordinance, e i t h e r i n i t s r e g u l a t i o n s o r , and somewhat l e s s l i k e l y , the use i t s e l f , a pparently represents the " f i r s t means of a m e l i o r a t i o n " i n a p r a c t i c a l sense.(Stevens, 1959, 259) The m a j o r i t y of zoning e n a b l i n g s t a t u t e s s p e c i f i c a l l y provide t h a t exception or a v a r i a t i o n of the zoning by-law may be pe r m i t t e d wherever "unusual" or "undue hardship" occurs t o the a p p l i c a n t . 1 The term i s however seldom d e f i n e d f u r t h e r by l e g i s l a t i o n ^ although j u d i c i a l r u l i n g s have determined t h a t mere inconvenience i s not s u f f i c i e n t . At l e a s t i n American j u r i s d i c t i o n s , i t must be shown both t h a t the v a r i a n c e won't a l t e r the e s s e n t i a l c h a r a c t e r of the neighborhood or won't r e s u l t i n an unreasonable r e t u r n t o the a p p l i c a n t , (Stevens, 1969, 259) and t h a t the a p p l i c a n t ' s circumstances are unique and uncommon t o the neighbor-hood and not si m p l y of a f i n a n c i a l nature.(Anon., 1969, 671) Notwithstanding t h i s j u d i c i a l d e f i n i t i o n , the variance has been See f o r eg. B.C. M u n i c i p a l A c t , S. 709(1) (c) 70 r e f e r r e d t o as the "bete n o i r e of the zoning experts" and there i s a p p a r e n t l y some clamour f o r i t s complete a b o l i t i o n . ( C a l l s t r e a m & Hunt, 195U, 231) Much of t h i s c r i t i c i s m i s l e v e l l e d a t the too frequent use of the v a r i a n c e , and apparent p r a c t i c e o f appeal boards and c o u n c i l s i g n o r i n g standards or precedents i n g r a n t i n g the v a r i a n c e at l e a s t i n the few i n s t a n c e s where such precedents; are available.(Heyman, 1970, 33) One commentator notes, " I t s c r e a t o r s expected t h a t a system of judge-made r u l e s would emerge t o e l i m i n a t e much of the vagueness",(Anon., 1969, 671) but such has apparently not been the case. In any event, most variance or zoning review boards seem t o be g e n e r a l l y s t a f f e d e i t h e r by laymen, so t h a t j u d i c i a l review i s o n l y a r e a l i s s u e i n an apparently s m a l l p r o p o r t i o n of cases, and then o n l y on the narrow grounds of an i l l e g a l g r a n t i n g or obvious favoritism.(Heyman, 1970, 33) I n s o f a r as these amateur t r i b u n a l s should be bound by precedent, M i l n e r ' s a t t i t u d e i s r e l e v a n t : "An amateur t r i b u n a l / s u r e l y should not be the v i c t i m of i t s own. mistakes through some Nineteenth Century f e t i s h f o r precedent and supposed p r e d i c t a b i l i t y " . ( M i l n e r , 1962b, kk) There i s however gen e r a l o p i n i o n t h a t some s e t of very general ground r u l e s i s r e q u i r e d wherever f l e x i b i l i t y i s being considered and d i s c r e t i o n involved,(Anon., 1969, 671) and M i l n e r maintains t h a t zoning should not be too impermanent. ( M i l n e r , 1962b, 33) S i m i l a r t o c r i t i c i s m of other f l e x i b l e techniques, a major com-p l a i n t i s t h a t too much d i s c r e t i o n l i e s w i t h the variance and appeal boards.(Dallstrearn & Hunt, 195U, 227) One study contends t h a t at l e a s t h a l f of the appeal board r u l i n g s i n the U n i t e d S t a t e s cannot be j u s t i f i e d and probably represent i l l e g a l u s u r p t i o n s of power, (Blucher, 1955, 100) and a recent survey substantiates this claim with figures showing that only 12 of hi use and bulk variances granted by the Kentucky appeal boards could be deemed justifiable.(Anon., Note #27, 672) As Marcus i n his treatise on zoning administration notes, "The legal literature i s replete with studies of local boards of appeals that make significant departures from their relatively circumscribed legi s l a t i v e l y delegated areas of authority."(Marcus, 1970, 97) There i s , nonetheless, considerable support for the continued use of the variance procedure, and Bryden notes i t s resiliency and persistence despite the introduction of more sophisticated methods of achiev ing f l e x i b i l i t y . (Bryden, 1967, 228) It would appear that the use of v a r i -ances w i l l continue to provide at least one means of ameliorating the r i g i d i t y of zoning. 3. The Exception The use of exceptions, generally in the form of special use permits also became a popular means of securing some f l e x i b i l i t y with the zoning ordinance. Although employable in a variety of ways and circumstances, they are standardly defined i n the zoning by-law as the "may" uses that are not permitted as of right, but, being specifically enumerated, may be permitted only by approval of proper authorities upon application. (Delafons, 1969, 50) Exceptions or "special use permits" were developed i n the period following World War II as a control for nuisance and other " d i f f i c u l t " uses which did not conform to the traditional zones and configurations.(Stevens, 1969, 260) They were however apparently appreciated as an easy means of 72 postponing decisions on unpopular activities (Babcock, 1966, 7), and their use, for whatever reason, so flourished that by 1962 they had received generally wide and popular u t i l i z a t i o n in the U.S.(ALT, Draft 2,6). The exceptions have however been c r i t i s i z e d for their non-specific-i t y and because they represent an increase i n discretionary power. Stevens argues that the power to grant an exception i s an administrative one, and as such would require a clear indication of the standards to be followed in the exercise or granting of development permission.(Stevens, 1969, 260) Others however have maintained that there i s no cause for alarm concerning this discretionary power because only development's clearly singled-out before-hand for such treatment can be controlled, and because the c r i t e r i a for permission i s standard and well-defined in the ordinance.(Heyman, 1970, 3k) Canadian c r i t i c s , on the other hand, apparently feel that the resultant tendency of exception to set precedent effectively works against the attainment of flexibility.(Aykroyd, 1969, U8'& Laux, 1972, 35), and similar realizations in the United States led to the investigation of further means to obviate the r i g i d i t y of zoning. U. The Floating Zone The search for a new development tool that would not only be more flexible than prior methods but that could attain some greater degree of public and j u d i c i a l favour led to the formulation of the floating zone con-cept, alledgedly derived from a combination of the special use permits and special use districts.(Delafons, 1969, 53) The "floating zone" i s however a decidedly "more sophisticated concept" (Babcock, 1966, 8) for, operating much like Britain's Green Belt legislation, i t reconciles a set of vague but described standards with an individual treatment of each development 73 proposal on i t s own m e r i t s . A l l i e d t o zoning t o the degree only t h a t a d i s t r i c t w i t h i t s own standards and r e g u l a t i o n s i s i n s t i t u t e d i n the by-law as a c l a s s i f i c a t i o n category, the f l o a t i n g zone has no g e o g r a p h i c a l l y d e f i n e d boundaries or l o c a l e . a n d , l i k e the " f l o a t i n g charge" of commercial law, descends t o a d e f i n i t e l o c a t i o n o n l y upon a p p l i c a t i o n and permission by the r e l e v a n t o f f i c i a l s . As one commentator describes the process: "...with a ' r i g h t ' proposal and develop...the t e x t u a l reference would descend from the f i r m ^ ament and s e t t l e on the l u c k y owner's la n d — but only a f t e r extensive b a r g a i n i n g between the a p p l i c a n t and the m u n i c i p a l l e g i s l a t u r e " . ( B a b c o c k , 1966, 8) Thus, the boundaries o f the f l o a t i n g zone would be determined i n d i v i d u a l l y and at the time of a p p l i c a t i o n , and would not be d e l i n e a t e d by e a r l i e r pre-zoning d e c i s i o n s . E s s e n t i a l l y , p r i v a t e e n t e r p r i z e would have the i n i t i a t i v e on l o c a t i o n . Although there has been some j u d i c i a l concern t h a t use of the f l o a t i n g zone bears uncomfortable resemblance t o "spot zoning" and hence i s suspect, the technique has been g e n e r a l l y f a v o u r a b l y r e c e i v e d (Heyman, 1970, 3 8 ) . The f i r s t j u d i c i a l r u l i n g found "nothing unusual or improper i n the method".(Rodgers V. V i l l a g e of Ta r r y t o w n ) 1 I t now appears t h a t i f the use of the f l o a t i n g zone c l e a r l y e x h i b i t s a r e l a t i o n s h i p t o p u b l i c o b j e c t i v e s which are i d e n t i f i e d i n the plan n i n g process, the device w i l l be f a v o u r a b l y regarded by the courts.(Heyman, 1970, 39) Yet d e s p i t e apparent j u d i c i a l support, the f l o a t i n g zone has not seen t h a t much u t i l i z a t i o n i n the American context. E x p l a n a t i o n s range from claims t h a t the c o n d i t i o n s are too s t r i n g e n t f o r f l e x i b l e use •Sj.Y. 1951, 96 N.E. 2d. 731. (Stevens, 1969, 260), t o opposed arguments t h a t the technique a l l o w s too much d i s c r e t i o n , f a i l s t o give adequate p u b l i c n o t i c e , represents an un-a u t h o r i z e d d e l e g a t i o n of zoning powers without adequate standards, and by not according w i t h a comprehensive p l a n and enuring t o the b e n e f i t s of i n d i v i d u a l s , c o n s t i t u t e s spot zoning.(Johnson, 1970, U03) Thus i t seems t h a t even though the f l o a t i n g zone might be able t o s u s t a i n i t s e l f on the t r a d i t i o n a l and j u d i c i a l l y d e f i n e d ground-rules of zoning c o n t r o l s , i t has f a i l e d t o f i n d s u f f i c i e n t p u b l i c use and acceptance and o f f i c i a l c r e d i b i l i t y . Doubtless the f a c t of i t s i n a p p r o p r i a t e n e s s f o r the more t r a d i t i o n a l uses of zoning and c o n t r o l of nuisance c o n t r i b u t e d somewhat to i t s l a c k of favour (Stevens, 1969, 260), but i t s demise has served t o provide f r e s h impetus t o the f o r m u l a t i o n of new and d i f f e r e n t techniques geared t o c o n t r o l o f both t r a d i t i o n a l and developing uses and a c h i e v i n g maximum f l e x i b i l i t y w i t h i n d i s c r e t i o n a r y l i m i t s . A PROGNOSIS I t appears then t h a t f l e x i b l e zoning c o n t r o l s designed t o breach zoning r i g i d i t y w h i l e conforming t o t r a d l t i o n a i zoning behavior have f a i l e d t o p r o v i d e s i g n i f i c a n t means of c o n t r o l l i n g emergent uses and development. W i l l i a m ' s resume and catalogue of t h e i r demise i s as c o n c l u s i v e as any: 1. Massive confusion i n t h e i r a d m i n i s t r a t i o n c r e a t e d misunderstandings and doubts as t o t h e i r use and e f f i c a c y ; 2. V i t a l p u b l i c 'support d i d not m a t e r i a l i z e ; 3 . They were used too f r e q u e n t l y f o r p u r e l y p a r o c h i a l advantage; h. Widely used without a s u f f i c i e n t p l a n n i n g background, they were no longer t o p i c a l or p e r t i n e n t t o o l s f o r the changing development p a t t e r n s ; and 5. They were o v e r l y i d e a l i s t i c and tended t o represent "pervassive unrealism". , ( Williams,,: I96J4, 89.) 75 Clearly then, any new means hoping to provide solutions to continu-ing development problems would have to avoid the deficiencies of the existant flexible techniques and yet s t i l l accomplish significantly more than had traditional zoning procedure. Increased discretion and individualized attention seemed to provide some promise, even though i t might only be accom-plished outside the confines of traditional zoning. 76 CHAPTER IV CONDITIONAL OR CONTRACT ZONING The past two decades of American land use c o n t r o l have been d i s -tinguished by the energetic search f o r an u l t i m a t e l y successful and f l e x i b l e means of development c o n t r o l . While f e a s i b l e and p r a c t i c a l r e s u l t s were already being acceptably obtained through variances and exceptions, another l i n e of i n v e s t i g a t i o n was advancing concepts which had the p o t e n t i a l f o r increased but i n d i v i d u a l i z e d c o n t r o l with ample f l e x i b i l i t y t o accommodate emerging development techniques. Described v a r i o u s l y as contract zoning, c o n d i t i o n a l zoning, s i t e - p l a n c o n t r o l or planned u n i t development, each method represented a s i g n i f i c a n t departure from t r a d i t i o n a l zoning theory while d i s p l a y i n g c e r t a i n a f f i n i t y with B r i t i s h - i n f l u e n c e d development con-t r o l s . They tended to avoid the r i g i d i t y of zoning categories by instead being t a i l o r e d f o r i n d i v i d u a l a p p l i c a t i o n to a p a r t i c u l a r piece of property, achieving c o n t r o l not through u n i v e r s a l and pre-determined regulations but by way of i n d i v i d u a l l y d i r e c t e d permits, agreements, conditions or c o n t r o l l i n g s i t e plan. Nevertheless, the h i s t o r y of contract zoning has been r e p l e t e with d e f i n i t i o n a l confusion, numerous p r a c t i c a l problems and considerable j u d i c i a l i n tolerance. CONTRACT ZONING DEFINE 1. Contract Zoning As a preliminary caution i t must be pointed out that there i s consider-able confusion surrounding the correct designation f o r these new modes of land use c o n t r o l . A number of terms are encountered but as "contract zoning" was the f i r s t to be applied g e n e r i c a l l y , though perhaps inaccurately, 77 i t w i l l be a p p l i e d i n t h i s paper wherever general d e s i g n a t i o n of the common technique i s d e s i r e d . I n a number of i n s t a n c e s however, d i f f e r e n t forms have been compared t o " c o n t r a c t zoning" and i n those cases the term i s g e n e r a l l y reserved f o r c o n t r o l forms i n v a l i d a t e d by e a r l i e r j u d i c i a l r u l i n g s . B a s s e t t ' s admonition t h a t " c o n t r a c t s have no p l a c e i n a zoning p l a n " ( B a s s e t t , 1936, 18U) was i n s t r u m e n t a l not on l y i n f i r s t d e s i g n a t i n g the p r a c t i c e of o b t a i n i n g agreements between developer and m u n i c i p a l a u t h o r i t y but i n c a s t i n g the f i r s t ambiguous mold o f l e g a l i n v a l i d i t y . A t the time however h i s remarks were s p e c i f i c a l l y aimed a t the then p r e v a i l i n g m u n i c i p a l p r a c t i c e s of s e c u r i n g a donation o f l a n d or money p r i o r t o any c o n s i d e r a t i o n of the re-zoning a p p l i c a t i o n (see f o r eg. Shapir o , 1968, 283 & Beuscher, 196U 169), and then agreeing not t o l a t e r rezone the property. The form and p r a c t i c e o f c o n d i t i o n a l zoning has changes s i g n i f i c a n t l y s i n c e t h a t time, and the c o n t r a c t zoning being i n c r e a s i n g l y approved by today's courts s h o u l d not be mistaken f o r i t s e a r l i e r opprobrious form. As i t i s both the common generic d e s i g n a t i o n and a l a t t e r l y more s p e c i f i c form d e s c r i p t i o n , c o n t r a c t zoning has been v a r i o u s l y d e f i n e d . One source d e s c r i b e s i t as a re-zoning c o n d i t i o n e d by a " t r a n s a c t i o n where both owner and m u n i c i p a l i t y undertake r e c i p r o c a l o b l i g a t i o n s " (Shapiro, 1968, 269), and another as a re - z o n i n g i n which the m u n i c i p a l i t y agrees not t o change the zoning f o r a s e t p e r i o d of t i m e . ( S c h a f f e r , 1965, h3) Both however appear dated, and a more cu r r e n t j u d i c i a l d e f i n i t i o n represents i t more a c c u r a t e l y as a " r e c l a s s i f i c a t i o n of l a n d use i n which the landowner agrees t o perform c o n d i t i o n s not imposed on other l a n d i n the same c l a s s i f i c a t i o n " . ( S c r u t t o n  v. Sacremento, i n C u r t i n , 1970, U65) Because however o f the d i f f i c u l t y i n a c c u r a t e l y c i r c u m s c r i b i n g a technique of such v a r i e d forms and p r a c t i c e s , 78 a "rezoning w i t h concomitant c o n d i t i o n s " might w e l l serve t o best d e s c r i b e the c o n t r a c t zoning p r a c t i c e of i n d i v i d u a l l y c o n t r o l l i n g d e f i n e d p a r c e l s . Despite the v a r i e t y of c o n t r o l being e x e r c i s e d , c e r t a i n common problems a t t a c h t o each, and because they apply t o i n d i v i d u a l p a r c e l s a l l c o n t r a c t or c o n d i t i o n a l zoning types have been c a s t i g a t e d as i l l e g a l spot-zoning and f o r p r o v i d i n g d i f f e r e n t r e g u l a t i o n s f o r the same type of use i n c r e a t i n g i n d i v i d u a l "one-use" d i s t r i c t s . ( S h a p i r o , 1968, 280) In a d d i t i o n , the c o u r t s remain s u s p i c i o u s of an i l l e g a l b a r g a i n i n g away of l e g i s l a t i v e power by c o n t r a c t , and are apparently ready t o i n v a l i d a t e an ordinance as soon as they encounter the word ' c o n d i t i o n ' . ( S t r i n e , 1963, 119) An adequate understanding however of these c r i t i c i s m s and o f the form and nature of co n t r a c t zoning can be best d e r i v e d only by an independent c o n s i d e r a t i o n of each o f the other forms. 2. C o n d i t i o n a l Zoning C o n d i t i o n a l zoning i s l i t t l e d i f f e r e n t from c o n t r a c t zoning except t h a t i t appears t o be somewhat l e s s i l l e g a l . F u n c t i o n a l l y and by d e f i n i t i o n the two share a number of c h a r a c t e r i s t i c s , and both permit rezoning s u b j e c t t o the c a r r y i n g out of a number of s t a t e d c o n d i t i o n s as agreed between the p a r t i e s . As a r e s u l t , the U.S. Courts have g e n e r a l l y tended t o i n t e r -weave c o n t r a c t zoning w i t h c o n d i t i o n a l zoning ( C u r t i n , 1970, 1*63), and sub-sequent attempts t o d i s t i n g u i s h the two have been con f u s i n g and i n c o n c l u s i v e . D i s t i l l i n g common ground from the v a r i e t y o f d e f i n i t i o n s , i t would seem t h a t c o n d i t i o n a l zoning b e s t d e s c r i b e s the m u n i c i p a l p r a c t i c e of gr a n t i n g rezoning s u b j e c t t o c o n d i t i o n s as agreed between the p a r t i e s . As the major d i s t i n c t i o n from c o n t r a c t zoning however, t h e r e i s no appearance 79 of r e c i p r o c a l or b i l a t e r a l promises which might be taken t o c h a r a c t e r i z e a " c o n t r a c t " . The m u n i c i p a l i t y appears t o remain f r e e t o f u r t h e r rezone a t any time, or t o revoke the p e r m i t t e d zoning should c o n d i t i o n s not be met. ( S c h a f f e r , 1965, hQ) The p o s i t i o n does not of course f a c i l i t a t e the developer who may, notwithstanding h i s own performance^ be unable t o enforce-a c t i o n by the m u n i c i p a l i t y ( R e t t i g , 1968, 20U) but a t l e a s t i n t h i s way, no f e t t e r on the power t o zone i s permitted, and the c a s t i g a t i o n s of i l l e g a l c o n t r a c t zoning are t h e r e f o r e o b v i a t e d . ( S c h a f f e r , 1965, kl) Opinion as t o the l e g a l e f f i c a c y of c o n d i t i o n a l zoning, as here d e f i n e d , v a r i e s between approval ( S c h a f f e r , 1965, h9)and h i n t s of d o u b t f u l v a l i d i t y (Shapiro, 1968, 271), the cause f o r such d i s p a r i t y a p p a r e n t l y l y i n g w i t h the aforementioned i n a b i l i t y t o c o n c l u s i v e l y i d e n t i f y the d i s -t i n c t i o n s between c o n t r a c t zoning and c o n d i t i o n a l zoning. A more l i b e r a l l e g a l i n t e r p r e t a t i o n however appears t o o f f e r some hope f o r the c l a r i f i -c a t i o n o f t h i s c o nfusion ( below p. 93 ), but wherever e i t h e r term i s encountered i t i s s t i l l a d v i s a b l e t o pay p a r t i c u l a r a t t e n t i o n t o the sub-stance of the technique r a t h e r than i t s d e s c r i p t i o n . 3 . Re-Zoning With Concomitant Agreement Unquestioned l e g i s l a t i v e and j u d i c i a l approval appears t o have been reserved f o r a t h i r d form of " c o n t r a c t zoning", a rezoning accompan-i e d by concomitant or a n c i l l i a r y agreement. D i f f e r i n g from c o n d i t i o n a l zoning o n l y t o the extent t h a t the agreement upon which the zoning i s c o n d i t i o n e d does not commonly r e c e i v e mention i n e i t h e r the zoning o r d i n -ance or the r e z o n i n g by-law 1 rezoning w i t h c o n d i t i o n s sub s i l e n t i o a p p arently v i t i a t e s the zoning change. J u d i c i a l approval appears t o be i : See contra. Myhre v. Spokane i n R e t t i g , 1968, 198. 80 a v a i l a b l e so l o n g at l e a s t as there i s no o f f i c i a l or formal i n d i c a t i o n t h a t the m u n i c i p a l a u t h o r i t y has r e c e i v e d assurances of c o n d i t i o n s or behav-i o r from a p p l i c a n t s f o r the change.(Shapiro, 1968, 275) Observing B a s s e t t ' s c a u t i o n t h a t "counsel • w i l l do w e l l when presen-t i n g a zoning case t o the court t o omit a l l r e f e r e n c e t o c o n t r a c t s between p a r t i e s and c o n t r a c t u a l r e s t r i c t i o n s running w i t h the land" ( B a s s e t t , 1936, 185) m u n i c i p a l i t i e s thus g e n e r a l l y prepare r e z o n i n g ordinances i n the standard form, w h i l e b a r g a i n i n g w i t h land-owners on the s i d e , While the American courts are no doubt cognizant of t h i s extra-ordinance manoeuvring, and have apparently been t a c i t l y approving these r e z o n i n g s ( R e t t i g , 1968), t h e American Law I n s t i t u t e has objected t o the r e f u s a l o f the law t o recognize r e a l i t y t h u s l y : "The r e a l o b j e c t i o n i s t h a t an a c t i v i t y which ought t o be c a r r i e d on a t the p u b l i c c o n t r o l l e v e l has been d r i v e n underground."(ALI, 1970, 193) Rezoning w i t h c o n d i t i o n s sub s i l e n t i o seems t o have taken a v a r i e t y of forms. The e a r l i e s t was developed f o r use i n Chicago's Cook County, where s i n c e the e a r l y '50's a procedure of v o l u n t a r y a l i e n a t i o n has achieved c o n d i t i o n a l c o n t r o l without running the r i s k of i n v a l i d a t i o n as " c o n t r a c t zoning". A t the suggestion of the County Board of Zoning Appeals an a p p l i c a n t w i t h a f a v o u r a b l e r e z o n i n g request would v o l u n t a r i l y a l i e n a t e h i s p r o p e r t y t o a t h i r d p a r t y , l a t e r r e - a c q u i r i n g i t subject t o a covenant running w i t h the l a n d , the terms of which enured t o the b e n e f i t of and were enforceable by a l l I n h a b i t a n t s of the county. O b j e c t i o n a b l e uses would be p r o h i b i t e d by the covenant, which i t s e l f r e c e i v e s no r e f e r e n c e i n the rezoning ordinance.(Dallstream & Hunt, 195k, 236) T h i s technique has 81 been frequently used instead of a use variance (Beuscher, 195>U, v i i i , 52), and has been given some attention by other jurisdictions contemplating similar excursions. Interest has also been shown in a s l i g h t l y different application which' would involve a prior commitment by the owner to either encumber his land or provide those physical alterations he expects the municipal authority to require before favourably considering his application. Similar to voluntary alienation, such action would seem to be the direct result of clear implications from the. rezoning authorities, but; the courts have . apparently accepted the possibility,of a purely voluntary.action and have not therefore invalidated this procedure.(Shapiro, 1968, 27U) In any event, suggestions for such alienation, encumbrancing or physical altera-tion generally arise from Advisory Planning Commissions, Planning Boards or Appeal Boards and are not directly traceable to the municipal l e g i s l a -tive body which would authorize the zoning change. As such, they do not seem to risk the' charge of " i l l e g a l contract zoning". k. Planned Unit Development Planned Unit Development methods, PUDs, are presently receiving considerable attention in the U.S. as a possible answer to the zoning i n f l e x i b i l i t y that has particularly plagued the larger and more complex development projects. Considered "contract zoning with sophistication" (Babcock, 1966, 11), the PUD i s in fact an interesting hybrid of zoning, sub-division, condominium and design controls, which resembles rezoning with concomitant agreement but comes closest to representing an American form of development control. Unlike individual techniques such as the floating zone, the PUD 82 concept employs a p o s i t i v e c o n t r o l f u n c t i o n t o create a p a r c e l of e i t h e r of an i n d i v i d u a l r e s i d e n t i a l use or a mixture of uses, and w h i l e i n o p e r a t i o n i t somewhat resembles c o n d i t i o n a l zoning ( B a i r , 1969, 1*), i t apparently achieves c o n t r o l w i t h a minimum of p r e - s e t r e g u l a t i o n s . Eschew-i n g r e g u l a r zoning by-laws, the m u n i c i p a l l e g i s l a t u r e determines o n l y the percentage of space t o be devoted t o each contemplated use, and by waiving compliance w i t h l o t s i z e , housing type, set-back and use r e s t r i c t i o n s , l eaves the bulk of the c o n t r o l f u n c t i o n t o be m u t u a l l y determined by the p l a n n e r s , a d m i n i s t r a t o r s and developers.(Johnston, 1970, 1*05) A number of p r o c e d u r a l g u i d e - l i n e s and r e g u l a t i o n s are a v a i l a b l e f o r use w i t h the PUD technique. For i n s t a n c e , most ordinances r e q u i r e t h a t a l l i n v o l v e d l a n d be under u n i f i e d c o n t r o l w i t h the a p p l i c a t i o n i n v o l v i n g a s i n g l e or s e r i a l development program.(Bair, 1969, 3) Minimum s i z e v a r i e s and although one author suggests f o r t y (1*0) acres ( W o l f f e , 1968, 1 0 ) , the San F r a n c i s c o ordinance-requires o n l y three ( 3 ) acres o r a l a n d p a r c e l e i t h e r bounded on a l l s i d e s by s t r e e t s , zoning or j u r i s d i c t i o n a l boundary l i n e s , or park space, or i n c l u s i o n w i t h i n a Redevelopment p r o j e c t . ( D e l a f o n s , 1969, 172) A s e t of comprehensive plans i n c l u d i n g e l e v a t i o n s , s i t e p l a n s e t c . must provide f o r the maintenance and o p e r a t i o n of a l l f a c i l i t i e s which w i l l be of common u s e . ( B a i r , 1969, 3) The f i r s t p r o c e d u r a l s t e p i s a p p l i c a t i o n f o r a re-zoning, and w h i l e a p r e l i m i n a r y p l a n i n g e n e r a l i z e d form i s the o n l y formal requirement, i n d i c a t i o n t h a t other p r e - r e q u i s i t e s have been met together w i t h agreements to comply w i t h r e g u l a t i o n s , to complete development and t o b i n d successors must be submitted. The a p p l i c a n t s ' p r o p o s a l must "meet the p u b l i c purpose of the r e g u l a t i o n s t o a degree a t l e a s t equal t o what would be accomplished 83 i f the c o n t r o l s were enforced s t r i c t l y as w r i t t e n ( i . e . the o r i g i n a l z o n i n g ) ( B a i r , 1 9 6 ° , 8 ) , best accomplished, i t i s suggested, by a p u b l i c hearing.(WoIffe, 1968, 10) Once approval i s granted by the r e q u i s i t e a u t h o r i t y , the p l a n as submitted and subsequently augmented t o a compre-hensive l e v e l becomes " s e t " and r i g i d , a l l o w i n g only minor a l t e r a t i o n s as st a g i n g p r o g r e s s e s . ( B a i r , 1969, 8) Planned U n i t Developments have proved e f f i c i e n t i n the staged development of l a r g e multi-use t r a c t s and i n t h e i r a b i l i t y t o both handle i n c r e a s e s i n d e n s i t y without s a c r i f i c i n g a e s t h e t i c s or amenities and t o provide maximum use w i t h e f f i c i e n c y and p r e s e r v a t i o n of open la n d . ( W o l f f e , 1968, 11) There have been complaints however t h a t the standards employed are so vague t h a t the b a r g a i n i n g process might be open t o abuse (Babcock, 1966, 11) , and t h a t the technique a l l o w s the use of r e g u l a t i o n s t o harass, d e l a y or t o t a l l y f r u s t r a t e developers.(Lawrence 5k) While t h i s c o n t e n t i o n can be r e b u t t e d by an exp l a n a t i o n o f the r e l a t i v e n o v e l t y of the procedure (Wolffe, 1968, 9 ) , a more r e a l c r i t i c i s m centers on the r i g i d n e s s imposed by the l o c k i n g i n of c e r t a i n s t r u c t u r e s according t o the submitted P l a n . (Wolffe, 1968, 10) Y e t , i t i s apparent t h a t the Planned U n i t Development procedure achieves a s i g n i f i c a n t degree of f l e x i b i l i t y and freedom from zoning regu-l a t i o n s and a n .increased d i s c r e t i o n a r y i n p u t , a l l the w h i l e r e t a i n i n g t h e r e q u i r e d degree of p r e d i c t a b i l i t y and s t a b i l i t y f o r p u b l i c acceptance.(Wolffe, 1968, 11) I t s f l e x i b i l i t y and quick responsiveness t o market needs have made i t a t t r a c t i v e t o developers, and the American S o c i e t y of P l a n n i n g Qh O f f i c i a l s have c a l l e d i t the " r e g u l a t o r y device t h a t w i l l c o n t r o l l a n d use i n developed areas i n the f u t u r e " . (A3P0, 1968, U3) 5>. Canadian S i t e P l a n C o n t r o l " S i t e p l a n c o n t r o l i s the a p p l i c a t i o n of the r e g u l a t o r y process to the use of p a r t i c u l a r p a r c e l of la n d expressed i n the form o f d e t a i l e d plans which have been determined by n e g o t i a t i o n between the m u n i c i p a l i t y and the developer, t a k i n g i n t o c o n s i d e r a t i o n the nature o f the use proposed and i t s probably e f f e c t on the neighbouring lands." A d l e r , 1971, 97. Contained i n A d l e r ' s thorough a n a l y s i s of Ontario a d m i n i s t r a t i v e procedure, t h i s d e f i n i t i o n s u c c i n c t l y describes the u n i q u e l y Canadian s o l u t i o n t o the problems of i n t r o d u c i n g f l e x i b i l i t y where t r a d i t i o n a l zon-i n g procedure has proven i n e f f e c t i v e or i n s u f f i c i e n t . C a l l e d s i t e p l a n c o n t r o l a f t e r the O n t a r i o p r a c t i c e of r e q u i r i n g submission of s i t e plans w i t h the request f o r re-zoning ( M i l n e r L e c t u r e , A p r i l lU, 1968), the proce-dure has both obvious a f f i n i t y w i t h the American PUD p r a c t i c e and a d i s t i n c t l y Canadian emphasis. S i m i l a r t o Planned U n i t Development p r a c t i c e , s i t e p l a n c o n t r o l achieves primary c o n t r o l through p o s i t i v e means, i . e . the encouragement of i n d i v i d u a l development proposals w i t h f l e x i b l e and d i s c r e t i o n a r y con-t r o l s , and thus d i f f e r s s i g n i f i c a n t l y from r e s t r i c t i v e covenants, use r e s t r i c t i o n s and c o n d i t i o n s and v o l u n t a r y a l i e n a t i o n , a l l of which tend t o be negative i n scope and e f f e c t . The manner i n which O n t a r i o administers s i t e p l a n c o n t r o l — A d l e r c h a r a c t e r i z e s i t as development c o n t r o l ( A d l e r , 1971, 97) — would seem t o enable somewhat more c o n t r o l than i s a v a i l a b l e w i t h the PUD: The American 85 method i s available only after the developer has voluntarily applied for a PUD rezoning, while Ontario municipalities, by pre-restricting the zoning of land to either the present use or 'agricultural 1, are able to force most developers to apply for a zoning change:and thereby submit to the local jurisdiction.^ Freezing of a l l development prior to the undertaking of an agreement by the developer completes this control process.(Adler, 1971, 97) It would appear however that use of Ontario's site plan controls varies somewhat within the province. The use of 'associated development agreements', undoubtedly common in a number of Canadian municipalities, has been particularly followed i n the Toronto area communities of North York, Etobicoke, Oakville and Hamilton (Milner Lecture, April i i , 1968) and "spasmodically" i n other Metropolitan Toronto municipalities (Adler, 1971, 9 7 ) , whereas site plan control, incorporating the conditions and design control of the plan wiith the rezoning amendment, appears somewhat less common. However, i n London combined with the development agreements i t i s "the rule rather than the exception".(Adler, 1971, 95) The London procedure requires the developer to submit a plan con-taining elevations, access, use and location specifications prior to the actual rezoning request, and to execute the associated development agree-ment encompassing site improvements, municipal services and access control before f i n a l approval of the more permissive general zoning by the local council.(OLRR, 1970, 7) Considerable negotiation normally precedes approval — causing Milner to describe the procedure as "unauthorized development con-t r o l " (Milner Lecture March 29, 1968) — and assuming no objection i s hereto-See Standard O i l v. Kamloops [ l972j 5 W.W.R. 660 and In Re Di s t r i c t of North Vancouver Zoning By-Law 1*277, (Unreported) 1973. 86 before r a i s e d , the by-law i s submitted to the O.M.B. f o r t h e i r approval. (London, 1969). While London procedure p u b l i c a t i o n s make no apparent p r o v i s i o n f o r a p u b l i c hearing, A d l e r has i n d i c a t e d t h a t p l a n n i n g board c o n s i d e r a t i o n i s n o r m a l l y done at a p u b l i c meeting. The s i t e plans and a c t u a l e l e v a t i o n s of proposed s t r u c t u r e s are then i n c o r p o r a t e d i n t o the l o c a l l y l e g i s l a t e d by-law, and once OMB approval i s obtained the development agreement i s deemed a covenant t o run w i t h the l a n d . ( A d l e r , 1971, 97) Nonetheless and d e s p i t e widespread p r a c t i c e i n London and other O n t a r i o communities, the s t a t u s of Ontario s i t e p l a n c o n t r o l remains u n c e r t a i n . In 1968 s i x O n t a r i o m u n i c i p a l i t i e s p e t i t i o n e d the l e g i s l a t u r e f o r s p e c i a l l e g i s l a t i o n p e r m i t t i n g the e x e r c i s e of the f a i r l y s t r i n g e n t c o n t r o l s over development being f o l l o w e d i n London. A l l however were requested t o w i t h -h o l d t h e i r requests u n t i l the study of p l a n n i n g and development c o n t r o l l e g i s l a t i o n had been completed by the O n t a r i o Law Reform Commission. T h e i r r e p o r t , r e l e a s e d i n l a t e r 1971 recommended major changes to Ontario's P l a n n i n g Act. Under the terms of the proposed l e g i s l a t i o n , the m u n i c i p a l -i t y may, i n those areas designated by the M i n i s t e r f o r a p p l i c a t i o n of the p r o v i s i o n s , enter i n t o agreements with developers concerning such things as highway d e d i c a t i o n , access, o f f - s t r e e t p a r k i n g , landscaping and general b u i l d i n g design. By-laws w i t h p a r t i c u l a r a p p l i c a t i o n t o the s p e c i f i e d lands can then be passed, and the agreements r e g i s t e r e d a g a i n s t the l a n d subject t o the p r o v i s i o n s of The R e g i s t r y Act.(0LRC, 1971, Appendix B) The s i m i l a r i t y t o B.C.'s S. 702A - Land Use Contract l e g i s l a t i o n i s s t r i k i n g . U n t i l f i n a l l e g i s l a t i v e approval however, the Ontario p r a c t i c e of s i t e p l a n c o n t r o l remains a t the forebearance of the courts and the Ontario 87 Municipal Board. The situation i s not altogether satisfactory for there i s doubt whether the municipalities have present authority to impose as a condition of rezoning that services be provided.(OLRC, 1971, 7 & Adler, 1971, 97) The Ontario Municipal Board, despite j u d i c i a l advice to the contrary 1 has oft-times requested that these conditions and development agreements be submitted along with the request for approval of the rezon-ing by-law. (Adler, 1971, 98) Although no serious consequences have yet flowed from this practice, there i s concern that the Board has no guidelines to follow i n discharging i t s functions, has no planning expertise, and generally "in planning matters, f l i e s by the seat of i t s pants."(Greer, 1972)' Nonetheless, i t s implied or t a c i t approval of site plan control has prob-ably served to sustain and encourage Ontario development control. THE STATUS OF CONTRACT ZONING 1. Statutory Authorization Although i t i s d i f f i c u l t to determine where contract zoning f i r s t i n i t i a t e d or the extent of i t s use, i t seems f a i r to assume from Bassett's early condemnation that i t has been of long consideration as a possible means of achieving development control or a degree of f l e x i b i l i t y . By 1956 the practice of attaching conditions to rezoning was evidently widespread in the State of New York (per dicta, Church v. I s l i p , i n Strine, 1963, 121;), and there i s l i t t l e reason not to believe that other jurisdictions also engaged in the rezoning of property conditioned on the execution of agree-ments. F u l l scale employment does however seem rather uneven across the United States, for by 1968 contract zoning was s t i l l i n an "embryonic stage" See below, p. 2See also, Baker, 1972. 88 i n the State of Washington.(Rettig, 1968, 218) Nonetheless, by 1965 no state had yet expressly authorized the use of conditional or contract rezonings.(Bailey, 1965, 897). Admittedly, the New York State Legislature had introduced and approved a 1956 b i l l permitting the use by local council of "requirements, agreement or condi-tions", but i t was promptly vetoed by order of the Governor, who gave the reason that i t "would upset the orderly progress for zoning regulation". (Strine, 1963, 127) As a result, development contracts i n that state were only legislatively permitted when the project concerned public hous-ing. (Regional Plan Assoc., 1955, 166) A variety of explanations have been advanced for this apparent reluctance by the U.S. state legislatures to authorize contract zoning. Bailey suggests that there i s concern that to allow rezoning with conditions would require a complete and total revision of the o f f i c i a l concepts of municipal land use (Bailey, 1965, 915), and the short life-span of the Model Land Development Code proposals to permit contract zoning,(ALI Draft l) omitted in the subsequent major theoretical revisions of Draft 3, lends some support to his contention. The assumption i s that there i s unanimous agreement that contract;,zoning remain an unofficial and informal device. (Bailey, 1965, 915) 2. The Case Law Perhaps the most significant American case that dealt with contract zoning was Church v. The Town of I s l i p {(below, p^3 ), i n which the New York court, apparently disregarding the veto implication that contract zoning was i l l e g a l , found an implied authority for the municipality to impose con-ditions i n rezoning ins-fcances. The Regional Plan Association, who had 89 originally urged the Governor to exercise his veto (Strine, 1963, 127) , came out i n strong opposition to the decision, arguing that without express grant by the legislature there could be no authority to enter into agree-ments with owners and developers.(RPA, 1955, 166) The decision was however generally hailed by the majority of c r i t i c s , who were quick to observe that not only was there no language in the act which might negate the implication that conditions could be imposed (Strine, I 9 6 3 , 116). Others maintain that as the courts had previously been pre-pared to imply the power to impose conditions for variances and sub-division regulations, there was ample authority for such an implication i n zoning, particularly where i t favours the well being of land-owners, promoted general development and serves the general welfare. In any event, they argue, the exercise of zoning powers actually comes within the "police power""'" of the state constitution and i s not under the authority of the State planning acts, and the implication need not therefore be impaired by statutory silence. (Curtin, 1970, k6k) 3. Legal Implications of Contract Zoning a) The Contract. Prior to Church v. I s l i p attempts to introduce the f l e x i b i l i t y of contract zoning into traditional land control practice were generally frustrated by contrary j u d i c i a l rulings, on the nature of the contract. Faithfully heeding Bassett's dictum that contracts had no place i n zoning, the American courts tended, as one c r i t i c notes, "to take a negative a t t i -tude about zoning changes which can be shown to have been made i n return for a valuable consideration", and they seemed most anxious to avoid condoning the bargain and sale concept forseen i n early contract zoning (Crawford, 1969, l 5 l ) Trager however feels that the suspicious and i l l i b e r a l attitudes 90 of the courts were occasioned because they were unable either to determine what actions by council and developer had preceded the rezoning by-law and sub-sequent appeal, or to articulate exact standards for administrative conduct. (Trager, 1963, lU7) Concern over administrative procedure often fore-shadowed any question of by-law form, and the following characterization by Charles Haar i s a good depiction of the result: If the court to which the question i s eventually taken believes the governmental action to be arbitrary and improper, that action i s branded as spot-zoning. If not, i t i s called a planned readjustment." (Haar, 1955, 1167. ) The importance of Bassett's early condemnation cannot be over-stated with regard to the slow progress i n the c r e d i b i l i t y and j u d i c i a l acceptance of contract zoning. While Strine doubts the exact meaning and reasoning of Bassett's remarks, he has d i s t i l l e d them to three points: 1) there i s no consideration for a contract since the municipality cannot promise to perform an act i t i s • already under an obligation to do; 2) contract zoning represents an improper delegation by council of i t s legislative authority and hence i s invalid; and 3) the power to impose conditions i s u l t r a vires the authority of the municipal legislative council. (Strine, 1963, 119.) Since the history of contract zoning has been distinguished by considerable manoeuvring by planners, lawyers, legislators and the courts to v i t i a t e this type of rezoning without becoming ensnared by Bassett's enunciated i l l e g a l i t i e s , i t might serve to consider these points more f u l l y . Bassett's f i r s t proposition - that the performance of an act that one i s already under obligation to do cannot suffice as consideration for a contract - i s a generally valid point of law, and no longer i s contentious. 91 In such circumstances no contract would exist and as one case put i t , "!The phrase 'contract zoning' has no legal significance and simply refers to a reclassification of land use i n which the landowner agrees to perform conditions not imposed on other land i n the same classification." (Scrutton  v. California, i n Curtin, 1970, U65) B i l a t e r a l agreements involving municipal obligations may not there-fore represent legal contracts, and there have been frequent examples of deliberate avoidance of the mention of terms or conditions which could be interpreted as consideration for the rezoning. The practice of rezoning without o f f i c i a l indication of conditions i s perhaps a p a r t i a l attempt to avoid such inference, as borne out by the Ontario Court of Appeal i n Re North York Township By-Law 1U067, I960 ( 2k DLR 12) which directed the Ontario Municipal Board not to consider concomitant agreements when passing on a rezoning. Adler, however, claims that the Court has "unwittingly and unnecesarily fettered i t s e l f " by this decision (Adler, 1971, 98), and there i s considerable opinion that the imposition of conditions has abso-lutely no effect on the legality of contract zoning, with particular refer-ence to the apparently valid attachment of conditions to variances.(Strine, 1963, 127 & Curtin, 1970, k6k) The second limb of Bassett's t r i p a r t i t e logic argues that i f a municipal council by agreement surrenders up i t s right to later change a zoning, i t would constitute an improper and i l l e g a l delegation of legis-l a t i v e authority. 1 As the Regional Plan Association emphatically declares: "A municipality has no power to make any agreement or deal City of Vancouver vs. Registrar of Vancouver, L.R. Di s t r i c t . 15 W.W.R. 35T @ 356. 92 which w i l l in any way control or embarass i t s legislative powers and duties.1' Neither the police power of the state i t s e l f not that delegated by i t to a municipality i s sub-ject to limitation by private contract; nor i s the exercise of such power to be alienated, surrendered or limited by any agreement or device." (Regional Elan, Association 1955.) In a nut-shell, the zoning of property within a municipalities borders must be kept mutable.(Shapiro, 1968, 270) Anderson's American Law of Zoning however takes issue with the theory on this point, and concludes that not only would any municipal agree-ment be but an implied or moral assurance, but also that the alleged sus-pension of police power i s only theoretical and not real.( i n Curtin, 1970, U65) Moreover, fears of such alienation by those who disfavour the grant of increased discretionary power to administrative o f f i c i a l s would seem baseless. Trager, for instance, was unable to document a single case of any agreement by the c i t y which would prevent i t from subsequently exercis-ing the power to again rezone against the property.(Trager, 1963, 132) Bassett's f i n a l point, that contract zoning i s i n fact ultra vires the local governmental authority, might in the light of an already observed absence of state and provincial enabling legislation have borne a p r i o r i concern. The alleged existence of an implied power to attach conditions to a rezoning has already been noted however, and the widespread popularity of this position has reduced somewhat the imperiousness of this last of Bassett's arguments. Yet i n the Canadian context both Milner (Milner Lecture, March 29, 1968) and Adler (Adler, 1971, 98) have expressed some doubts as to the val i d i t y of the Ontario practice of development control. Wherever 93 legislative authority i s absent, there may be room for not only theore-t i c a l but real concern for the legal efficacy of contract zoning. b) The Conditions. Although most attention since Bassett's direction had been to the form and substance of contract zoning the 1968 decision of Church v. I s l i p dramatically altered the nature of Ameri-can j u d i c i a l consideration from i t s previous formalistic approach to a r e a l i s t i c analysis of the essential nature and rationale of contract zoning. Because of the importance of the case to American planning law and i t s possible relevance i n the Canadian context further attention seems warranted. The Town of I s l i p had permitted the rezoning of previously •Residential 1 property to a 'Commercial' classification, and by by-law specified that the rezoning was to be conditioned upon compliance with six conditions and upon the execution and recording of restrictive covenants concerning density, floor area ratio and landscaping. There was however no indication of an express contract. (Wood, 1961, 21+1) The original Supreme Court referee who f i r s t heard the case inval-idated the rezoning, ruling that the amendment constituted spot zoning while the imposition of conditions involved i l l e g a l contract zoning.(160 N.Y.S.S. 2 d . \&, 1956, i n Strine, 1963, 123). On appeal the referee's decision was reversed, and the court, noting that the practice of imposing conditions was widespread, concluded that the practice was not "contrary to the s p i r i t of the zoning ordinances [or] beyond the statutory powers of local legislative bodies".(8 N.Y. 2d . 25U, i n Strine, 1963, 12U) This ruling was subsequently upheld by the State Court of Appeals.(203 N.Y.S. 2d. 866) 9h The case accomplished two significant feats. F i r s t l y , the court apparently was prepared to imply the power to impose conditions on the part of the local authorities. As a result, as one author notes, so long as there i s no express contract i n the terms of offer and acceptance, the affixing of conditions to a zoning amendment no longer constitutes i l l e g a l contract zoning. (Wood, 1961, 2I4.2) Secondly, by suggesting that the impos-iti o n of conditions represents not a bargaining away of discretion but an attempt to protect the interests of neighboring landowners, the court appears to have heralded a new approach to the legality of contract zoning and represents, as Strine notes, "the f i r s t attempt by a court to avoid the 'no-contract-zoning' doctrine while giving weight to the considerations underlying it."(Strine, 1963, 126) The emphasis was now to be on policies rather than superficialities.(Shapiro, 1968, 277) With the change i n emphasis, the conditions themselves, which had previously received next to no consideration from the courts, came within the scope of legal consideration, and the new legal situation thus appears to be this: i n questions of contract zoning, there i s a rebuttable pre-sumption that the conditions do not render the zoning change i l l e g a l , and conditions should only be invalidated i f the proper c r i t e r i a for a rezoning does not otherwise exist or the conditions are arbitrary, capricious or discriminatory.(Shapiro, 1968, 277) The test of reasonableness, tradition-a l l y used to guage the v a l i d i t y of administrative action seems, together with the 'police power1 requirements of public health, safety, morals and general welfare, thus becomes the primary test of the conditions i n American contract zoning.(Strine, 1963,128) From the reasoning of Church v. I s l i p and subsequent decisions, conditions w i l l generally only be judged unreason-95 able and hence invalid i f they constitute a person licence, are founded primarily on aesthetic consideration, or are a disguised exercise either in land acquisition by expropriation or taxation. (Rettig, 1968, 210) Notwithstanding this guidance i n assessing the reasonableness of conditions, some practical problems have been encountered. There i s , for instance, some suggestion i n the Church v I s l i p decision that neither the applicants not* the neighbouring landowners could challenge the conditions involved ostensibly because they had "accepted" the conditions and accruing benefits.(Strine, 1963, 125) One c r i t i c calls this approach " a r t i f i c i a l " and suggests that neighboring landowners should be allowed every available argument to contest conditions and protect the value of their property. (Strine, 1963, 126) However, an individual who might wish to attack the conditions of a contract zoning i s faced with opposing suggestions as to procedure. One practitioner advises that not the conditions but the actual by-law i t s e l f be attacked i n efforts to set aside the : rezoning, for to pro-ceed otherwise might result i n retention of the offending by-law without the ameliorating conditions.(Bailey, 1965, 901) On the other! hand, at least i n the State of Washington, i f the owner-petitioner wishes to invalidate the conditions and yet retain the rezoning, he must launch attack on the conditions themselves, but only subsequent to approval of the amending by-law. (Rettig, 1968, 213) ANALYSIS OF USE Contract zoning has experienced a slow and sometimes painful pro-gression up to and through i t s several forms. Reception by the courts has been erratic and confusing, although earlier suspicion and h o s t i l i t y now appear 96 to be y i e l d i n g to j u d i c i a l tolerance and a c c e p t i b i l i t y . ( S c h a f f e r , 1965, 52) Contract zoning appears to be on the verge of r e c e i v i n g wide acceptance over North America and i s now being h i g h l y recommended wherever a community desires to ease the burden of t r a d i t i o n a l zoning and introduce f l e x i b i l i t y to i t s c o n t r o l function.(Shapiro, 1968, 28?) I t s p o s i t i v e aura and a b i l i t y to achieve s i g n i f i c a n t l y greater l e v e l s of c o n t r o l than previously p o s s i b l e , have proven so popular with l o c a l a u t h o r i t i e s and administrators that the r i g h t to use a contract zoning i n the United States i s frequently offered as a 'carrot' to encourage m u n i c i p a l i t i e s to adopt a land development plan (Bosselman, 1968, 12), and u n t i l r e c e n t l y the American Law I n s t i t u t e had included i t , a f t e r c a r e f u l consideration, as one of the suggested development t o o l s i n i t s Model Land Development Code.(ALI Draft 2) There are also i n d i c a t i o n s of a broader p u b l i c w i l l i n g n e s s to accept t h i s new means of land use c o n t r o l p r i n c i p a l l y , i t i s claimed, f o r i t s capacity to ameliorate or minimize the otherwise adverse e f f e c t s which a r e -zoning might have on adjacent and neighboring p r o p e r t i e s . ( B a i l e y , 1965, 899) Density and use mixes, provis i o n s f o r access and parking, b u f f e r zones, and noise and design standards are a l s o commonly pos s i b l e with contract zoning, (Trager, 1963, 125) as are a number of f a c t o r s and amenities not considered a t t a i n a b l e with t r a d i t i o n a l zoning, i n c l u d i n g the health and safe-t y f a c t o r s of drainage, t r a f f i c , open space, set-backs and municipal ser-v i c e s , and other more generally f l e x i b l e standards commensurate with the new development patterns.(Bailey, 1965, 907) There i s also evidence of contract zoning being u t i l i z e d to obtain monies f o r the p r o v i s i o n of municipal services i n l i e u of the more t r a d i t i o n a l bonding, although t h i s extension 97 has apparently been unfavourably received by the O.M.B.(Adler, 1971, 100) and has been invalidated by some U.S. courts.(Shapiro, 1968, 283) General relations between the planning administrators and the public have also been enhanced through the use of contract zoning, allegedly because use of contracts avoids the necessity of confusing legal statutes, thus making the parties more aware of their respective position, and because i t enables a more co-operative approach involving the owner, municipality and neighbours and allowing them f u l l expression of their needs and desires.(Bailey, 1965, 907 & 9lh) While i t would appear that ample opportunity exists to successfully u t i l i z e contract zoning, there are obviously a variety of other pre-exist-ing techniques available which might provide somewhat similar solutions. Accordingly, i t has been suggested that contract zoning be used only wherever the problem cannot be adequately solved by a previously proposed statutory scheme.(Trager, 1963, 126) Variances and special exceptions, for instance, have traditionally been used i n situations now purportedly soluble by contract zoning. Consi-dered the "closest acceptable alternative to contract zoning that exists under present zoning schemes" (Bailey, 1965, 912) , variances can be used to permit certain non-conforming uses and to relieve individual hardship. Accompanied by conditions, of which the power to a f f i x has been considered i n -herent i n the jurisdictions of variance boards (Wood, 1 9 6 l , 233) , they are able to secure substantially more control over the alloted use, and yet- are considered of limited application because of the d i f f i c u l t y i n demonstrating the "particular and unnecessary hardship" required for their invocation. (Shapiro, 1968, 28l) 98 Similarly, special ( or administrative) exceptions find l i t t l e use i n circumstances where contract zoning might be u t i l i z e d , for although they are considered good for special problems, the statutes demand that each situation be unique thus eliminating recurrent or frequent use of this technique.(Trager, 1963, lU6) Conditional uses, sometimes called statutory exceptions, would seem to err on the opposite side, for being prepared i n advance to f a c i l i -tate certain uses as part of a general scheme, they f a i l to provide for the unique problems of individuals affected by the rezoning proposal.(Trager, 1963, Ihk) In addition, should the circumstances f i t the c r i t e r i a elaborated, the conditional use must normally be awarded, and the technique therefore does not offer the preferred discretion available with contract zoning.(Trager, 1963, 129) The use of existing techniques can of course be avoided altogether either by a rezoning without conditions or the creation of a new zone for each particular situation. The f i r s t would however seem p o l i t i c a l l y un-acceptable for reasons already elaborated, and the creation of individual zones has been considered invalid for the complex and confusing plethora of i l l e g a l "one-use" zones that would l i k e l y result.(Bailey, 1965, 912 & Trager, 1963, H*3) I t appears then that contract zoning satisfies the requirements of a satisfactory solution to the problems of zoning and i s superior i n use to the other flexible techniques. Nonetheless, contract zoning has come under some criticism. The contention that contract zoning i s discriminatory and l i a b l e 99 to invalidation as i l l e g a l spot zoning has been referred to by Trager as i t s "most substantial and severest criticism"(Trager, 1963, 135) primarily because: 1) the discrimination of contract zoning promotes inconsistency i n policy regarding neighboring properties; and 2) contract zoning f a i l s to accord with a comprehensive plan. (Rettig, 1968, 216.) Rather than contradict the criticism, even the supporters of con-tract zoning w i l l readily admit to the presence of discrimination,(Adler, 1971, 102) and agree that i t does aim directly at a particular individual or property without necessarily considering the general wslfare.(Trager, 1963, 136) In any event, Rettig notes that most contract or conditional zonings could be accomplished validly without the imposition of conditions, and hence the mere presence of conditions cannot provide substance for the claims of i l l e g a l spot zoning.(Rettig, 1968, 216) The second branch of this claim against contract zoning argues that because i t i s ad hoc i t f a i l s either to accord with a general plan or to take into account the impact of development on the area as a whole, (ALI Draft 1, S. 3-106, p.72), and i f there i s val i d i t y to this contention, the points made earlier concerning the comprehensive plan (p.55) have equal application here. As Adler frequently emphasizes any reasonable effort at background research prior to the contract rezoning provides a suitable basis for measuring the "public welfare" aspect of the zoning change, (Adler, 1971, 95) although he warns that "unless there are external guidelines to constrain municipal activity, there may perhaps be a tendency to impose whatever conditions the t r a f f i c w i l l bear."(Adler, 1971, 100) 100 In dealing with the a l l i e d argument that reclassification with-out a comprehensive plan tends to destroy the expectations of property owners (Trager, 1963, lUo), Adler notes that the Ontario Municipal Board has shown concern for this problem by indicating a clear preference for develop-ment controls only u n t i l development stabilizes when i t i s to be replaced by conventional zoning.(Adler, 1971, 102) He argues however that the zoning map, since i t f a i l s to show future use, i s no better a predictive agent than development control.(Adler, 1971, 103) A f o r t i o r i , Trager's treatise on contract zoning admits that a l l rezonings are generally contrary to expec-tations and, i n any event, the courts have long held that, zoning creats no vested rights i n property owners. (Trager, 1963,li+0) A related-criticism i s that contract zoning f a i l s to provide an adequate public record or, as the American Law Institute explains, the indirectness of the process results i n a situation in which the zoning map and regulations do not reflec t the special treatment.(ALI Draft 1, S. 3-106, p.73) As a result, there apparently i s fear that contract zoning w i l l impose conditions upon the use of property that are unstated and "not in accordance with traditions and distinctly contrary to accepted legal p r i n c i -ples." (Blucher, 1955, 99) Refuting arguments however note that private covenants as used i n traditional zoning do not appear on any maps, and i n any event, the actual rezoning procedure gives sufficient notice of poten-t i a l undesirable use to excite further inquiry.(Bailey, 905) CONTRACT ZONING AND THE RESTRICTIVE COVENANT The conditions i n contract zoning are thus frequently u t i l i z e d as a form of restrictive covenant (Bailey, 1965, 909) accompanied by the 101 s p e c i f i c a t i o n t h a t they " s h a l l run w i t h the l a n d ... and be b i n d i n g on successors and a s s i g n e e s " . ( R e t t i g , 1968, 206) Many m u n i c i p a l i t i e s how-ever, when they seek t o enforce such covenants, experience some d i f f i -c u l t y . T r a d i t i o n a l l y , o n l y the p a r t i e s t o the covenant may enforce i t and wherever t h i s p r i n c i p l e i s s t r i c t l y construed, the m u n i c i p a l i t y seek-i n g t o enforce the covenant would have t o r e t a i n a p o r t i o n of l a n d which c o u l d b e n e f i t from i t . ( B a i l e y , 1965, 909) The Ontario Court of Appeal appears t o have s i m i l a r l y r u l e d t h a t r e s t r i c t i v e covenants may be unenforce-ab l e a g a i n s t a l l but the o r i g i n a l covenators, u n l e s s the m u n i c i p a l i t y r e t a i n s some l a n d capable o f being b e n e f i t e d , and even although the covenant e x p r e s s l y "runs w i t h the la n d " . (125 V a r s i t y Road v. York, i n A d l e r , 1971, 1 0 0 ) . Although the case d e a l t w i t h a s u b - d i v i s i o n , A d l e r maintains t h a t i t e q u a l l y a p p l i e s i n res p e c t t o zoning by-law agreements. ( A d l e r , 1971, 101) Thus, t he use of r e s t r i c t i v e covenants can have a d e l e t e r i o u s e f f e c t on the p r a c t i c a l enforcement of c o n d i t i o n a l zonings, and B a i l e y warns t h a t w h i l e s u b j e c t i n g the zoning t o compliance w i t h a r e s t r i c t i v e covenant i s o f t e n the s i m p l e s t means of enforcement, i t i s the l e a s t a d v i s a b l e ( B a i l e y , 1965, 907) I f the m u n i c i p a l i t y can obtain agreement t o c o n d i t i o n s from a developer Asher, f o r one, b e l i e v e s t h a t the l a t t e r are e a s i e r t o enforce than a r e s t r i c t i v e covenant and f a r l e s s troublesome.(Ascher, 1953, 262) 102 CHAPTER V THE LAND USE CONTRACT THE INTRODUCTION OF S.702A It had been apparent for some time prior to 1968 that traditional zoning controls as permitted in this province were no longer adequate to cope with the problems and exigencies of Municipal land use control. A number of local governments, faced with increasing development pressures but insufficient resources to provide the necessary services for new urban estab-lishment, were resorting to the practice of exacting both funds and a variety of development and amenity conditions from prospective developers, a policy seemingly ultra vires the Municipal Act, Most of these same munic-i p a l i t i e s were at the same time applying pressure on the Provincial Govern-ment to either legalize their activities or provide some alternate but superior means of controlling and securing orderly and economic land use, growth and development. The Department of Municipal Affairs was no doubt aware of the problem, and early i n 1968 began to consider more adequate means of controlling land development than available with existing sub-division and zoning enabling legislation. Considerable interest was at this time shown i n the type of development controls exercised i n the City of Vancouver, where the p o s s i b i l i t y of more innovative zoning with conditional or special uses existed. Vancouver's Comprehensive Development Zone received scrutiny, as did the Interim Development Control permitted i n Alberta's land control legislation.(South - Interview) What was really desired however was a "more certain way of controlling land use", perhaps incorporating some of Vancouver's controls but without i t s Technical Planning Board, and permissive i n the same manner as conditional uses.(South - Interview) In essence, the new legislation had to both correct existing abuses and lend v a l i d i t y to some prevailing municipal practices, and also provide an essentially new and innovative form of land use control. THE DEVELOPMENT PERMIT In 1968 then the new legislation was introduced as Section 702A. Clearly and admittedly modelled on a combination of commercial contract and land permit (South - Interview), the new 702A instituted the development permit, to be granted by the Municipal wouncil to the owner of land s i t u -ated with a " Development Area" and providing both for the substitution of existing zoning by-laws by "other terms and conditions" and for the posting of bonds and security to ensure due performance by the developer, viz: 1) Where a Council has adopted an o f f i c i a l community plan, the Council may, i n a by-law under section 702, designate areas of land within a zone or zones as development areas. 2) Upon the application of an owner of land within the develop-ment area or his agent, the Council may, by the issuance of a development permit, waive the provisions of the by-law as they apply to that land and substitute therefor other terms and conditions which shall have the effect of a by-law adopted under section 702. 3) I f the holder of a development permit does not commence the development described therein within two years of the date of issue of the permit, the permit shall lapse unless extended by the Council. k) The Council may require that the owner or developer shall provide a performance bond or other security in the amount and form prescribed in the development permit. I O U 5) The Council may prescribe the procedure for the issue of a development permit and the form thereof. 6) The Council shall not issue a development permit u n t i l i t has held a public hearing thereon, notice of which as been published i n the manner prescribed i n subsection (1) of section 703. The notice shall identify the lands with respect to which the proposed development permit i s to be issued, state i n general terms the intent of the provisions of the proposed development permit, and state where and the days and hours during which a copy of the proposed develop-ment permit may be inspected. 7-)- Nothing i n this section shall r e s t r i c t the right of an owner to develop his land in accordance with the regulations of the municipality apply to the zone i n which the land i s situate. 1968, c. 33, s.l66. It should be noted that not only was the provision for the public hearing carefully carried over to the new legislation but, by permitting the owner to proceed either under 702A or the prevailing zoning regulations pertaining to his land, the existing zoning legislation was re-emphasized and preserved. Thus, the new legislation was apparently to be but an alternative to the existing S. 702. Nonetheless, the development permit and subsequent land use contract legislation was, for some reason best understood by i t s drafters, retained within the existing Division (3) -"Zoning", an anomoly. which somewhat belies i t s status as an alternative and may well have served to considerably confuse municipalities who other-wise regard 702A as a clear-cut and dichotomous alternative to zoning. In any event, the development permit legislation was doomed to an early grave. Despite alleged intentions to obviate existing municipal d i f f i c u l t i e s and to provide for more innovative municipal land use and development controls, the concept f a i l e d to gain the active interest of but a few B.C. municipalities. I t quickly had become apparent that the prerequisite of an adopted o f f i c i a l community plan was militating against the use of 702A for, despite the fact that "several municipalities ... 105 r e a l i z i n g the opp o r t u n i t y of u l t i m a t e c o n t r o l on key l o c a t i o n s by develop-ment permit, rushed i n t o e f f i c i e n t community p l a n s " (Wilson, 1971, P-U9), o n l y a few B.C. communities, amongst them Surrey and P r i n c e George, had an adopted p l a n s u f f i c i e n t t o s a t i s f y the requirements. In a d d i t i o n , the r e g i o n a l d i s t r i c t s had apparently been u n w i t t i n g l y deprived of the use of 702A by government i n t e r p r e t a t i o n . For i n s t a n c e , although the establishment of the r e g i o n a l d i s t r i c t s predated the development permit l e g i s l a t i o n , S. 702A (1) s p e c i f i c a l l y r e f e r r e d o nly t o the adoption of an o f f i c i a l p l a n by a c o u n c i l , thus apparently making no p r o v i s i o n f o r p l a n adoption by the Regional Board, a f u n c t i o n otherwise a u t h o r i z e d by S. 796 of the M u n i c i p a l A c t . In the case however of at l e a s t one r e g i o n a l d i s t r i c t , a d i s t i n c t use was seen f o r the Development Permit procedure and the Board, having regard t o S. 798(1) "With r e s p e c t t o t h a t area of the r e g i o n a l d i s t r i c t not contained w i t h i n a c i t y , d i s t r i c t , town, or v i l l a g e , the Regi o n a l Board may e x e r c i s e any of the powers conferred; by or under D i v i s i o n s ( l ) , (3) Zoning, and (U) of P a r t XXI e x e r c i s a b l e thereunder by a C o u n c i l , and the p r o v i s -i o n s of those D i v i s i o n s , except s e c t i o n 70U, apply mutatis mutandis" and concluding t h a t t h e i r own adopted r e g i o n a l p l a n came w i t h i n the d e f i n -i t i o n of the " o f f i c i a l community p l a n " of S. 702A, proceeded t o i n s t i t u t e the development permit procedure. The Department of M u n i c i p a l A f f a i r s apparently d i d not, however, agree w i t h the D i s t r i c t ' s i n t e r p r e t a t i o n o f the l e g i s l a t i o n and was not prepared t o acceed t o t h e i r submissions. ( P e r s o n a l Correspondence) Not s u r p r i s i n g l y then, i n 1970 the requirements of an adopted p l a n were d e l e t e d (1970, C. 29. S. 21) and the Development Permit l e g i s l a t i o n 106 became a v a i l a b l e t o a l l B.C. m u n i c i p a l i t i e s or r e g i o n a l d i s t r i c t s , w i t h o r without an o f f i c i a l p l a n . Despite however t h i s g r e a t l y i n c r e a s e d a c c e s s i b i l i t y t o S. 702A -the Development Permit l e g i s l a t i o n , " h i s t o r i c r e s i s t a n c e continued" (South -L e t t e r ) and r e l a t i v e l y few boards or c o u n c i l s saw f i t to u t i l i z e the 1 2 s e c t i o n . Only two r e g i o n a l d i s t r i c t s and seven m u n i c i p a l i t i e s c o n s t i t u -t i n g but eighteen percent o f the t o t a l f o r t y - n i n e r e p l i e s r e c e i v e d , r e p o r t e d any experience a t a l l w i t h the Development Permit. The Government was w e l l aware t h a t 702A was not r e c e i v i n g the extent of use they had en v i s i o n e d and admitted t h a t t h e r e "was some confusion and doubt as t o what a development per m i t was" (South - L e t t e r ) M u n i c i p a l a u t h o r i t i e s f e l t t h a t the permit procedure l a c k e d c l a r i t y , was "cumbersome and unwieldy" and accomplished l i t t l e t h a t c o u l d not a l r e a d y be done s i m p l e r w i t h other means. Recog-n i z i n g t h a t the m u n i c i p a l i t i e s were " a c t i n g the same and nothing new was being accomplished w i t h the development permit" (South - L e t t e r ) , the Govern-ment r e s c i n d e d the l e g i s l a t i o n i n A p r i l of 1971 and r e p l a c e d i t w i t h t h e Land Use Contract. ( 1 9 7 1 , C. 3 8 , S. 52) THE LAND USE CONTRACT 1) I n e x e r c i s i n g the p r o v i s i o n s o f t h i s s e c t i o n , the C o u n c i l s h a l l have due regard t o the f o l l o w i n g c o n s i d e r a t i o n s i n a d d i t i o n t o those r e f e r r e d t o i n subsection (2) of s e c t i o n 7 0 2 : -a) The development of areas t o promote greater e f f i c i e n c y and q u a l i t y : b^ The impact of development on present and f u t u r e p u b l i c c o s t s : c) The betterment of the environment: d) The f u l f i l l m e n t of community goals: and e) The p r o v i s i o n o f necessary p u b l i c space. 2) The C o u n c i l may, by by-law, amend the zoning by-law t o designate areas of l a n d w i t h i n a zone as development areas, but a p u b l i c h e a r i n g under s e c t i o n s 703 and 70U i s not r e q u i r e d . ^Bulkley-Nechako and Nanaimo. ^ o r t Coquitlam, Richmond, Maple Ridge, V i c t o r i a , P r i n c e George, Terrace, and M i s s i o n . 107 3) Upon the a p p l i c a t i o n of an owner of l a n d w i t h i n the development area, or h i s agent, the C o u n c i l may, notwithstanding any by-law of the m u n i c i p a l i t y , or s e c t i o n 712 or 713, enter i n t o a l a n d use c o n t r a c t c o n t a i n i n g such terms and c o n d i t i o n s f o r the use and development of the l a n d as may be m u t u a l l y agreed upon, and t h e r e a f t e r the use and development of the l a n d s h a l l , n o t w i t h -standing any by-law of the m u n i c i p a l i t y , or s e c t i o n 712 or 713, be i n accordance w i t h the l a n d use c o n t r a c t . kJ A c o n t r a c t entered i n t o under subsection (3) s h a l l have the f o r c e and e f f e c t of a r e s t r i c t i v e covenant running w i t h the l a n d and s h a l l be r e g i s t e r e d i n the Land R e g i s t r y O f f i c e by the m u n i c i p a l i t y . 3>) The C o u n c i l may, by by-law, p r e s c r i b e the procedure by which the m u n i c i p a l i t y may enter i n t o a l a n d use c o n t r a c t and the form and c o n s i d e r a t i o n of the c o n t r a c t . 6) The C o u n c i l s h a l l not enter i n t o a l a n d use c o n t r a c t u n t i l i t has h e l d a. p u b l i c h e a r i n g , n o t i c e of which has been p u b l i s h e d i n the manner p r e s c r i b e d i n s u b s e c t i o n ( l ^ of s e c t i o n 703, and except upon the a f f i r m a t i v e vote of t w o - t h i r d s of a l l the members, of c o u n c i l . 7) The p r o v i s i o n s of s e c t i o n 703 apply, w i t h the necessary changes and so f a r as are a p p l i c a b l e , t o a hearing under t h i s s e c t i o n . 8) Nothing i n t h i s s e c t i o n r e s t r i c t s the r i g h t of an owner t o develop h i s l a n d i n accordance w i t h the r e g u l a t i o n of the m u n i c i p a l i t y a p p l y i n g t o the zone i n which the l a n d i s s i t u a t e who does not enter i n t o a l a n d use c o n t r a c t w i t h the C o u n c i l . 9) A l a n d use c o n t r a c t i s deemed to be a zoning by-law f o r the purposes of the C o n t r o l l e d Access Highways Act. (Amended by 1971, C. 38, S. 52) The new l e g i s l a t i o n i n t r o d u c e d t o the house i n s p r i n g of 1971 as B i l l 100, v a r i e d c o n s i d e r a b l y from the Development Permit i n a number of i n s t a n c e s worth n o t i n g . Probably the most s i g n i f i c a n t change d e a l t w i t h the manner of s e c u r i n g e f f e c t i v e development c o n t r o l , f o r although the procedure f o r d e c l a r i n g a development area remained the same, the use of the permit t o waive c o n d i t i o n s of the zoning and s u b - d i v i s i o n by-laws was r e p l a c e d by a u t h o r i t y f o r c o u n c i l t o enter i n t o l a n d use c o n t r a c t s c o n t a i n i n g "such terms and c o n d i t i o n s ... as may be m u t u a l l y agreed upon". At the same time, t o broaden the power b a s i s and r a t i o n a l e f o r the e x e r c i s e of t h i s 108 new a u t h o r i t y , f i v e a d d i t i o n a l c o n s i d e r a t i o n s s p e c i f i e d f o r "due regard" by C o u n c i l j o i n e d the s i x of the o r i g i n a l zoning s e c t i o n . Requirements f o r a two year permit d u r a t i o n (S.3) and o p t i o n a l requirements f o r bond-i n g and s e c u r i t y were d e l e t e d , persumably t o be covered by the "terms and c o n d i t i o n s " of the new c o n t r a c t procedure, w h i l e a t i g h t e n i n g of p r o c e d u r a l r e g u l a t i o n s now.specified t h a t procedure, form and c o n s i d e r a t i o n , as w e l l as subsequent d e c l a r a t i o n of the development area, should proceed by by-law. (S. 3 '& $) A f i n a l and important a d d i t i o n to the l e g i s l a t i o n provided t h a t the c o n t r a c t have the f o r c e and e f f e c t of a r e s t r i c t i v e covenant running w i t h the land.(S . U ) UNDERSTANDING THE LAND USE CONTRACT The i n t r o d u c t i o n o f S. 702A - the Land Use Contract - was acclaimed by government f o r c e s and, i t i s a l l e g e d , the opposite s i d e of the house. (South - Interview) Because the i n i t i a l concept and much of the e a r l y d r a f t i n g of the new l e g i s l a t i o n a p parently arose b a s i c a l l y from w i t h i n the Department of M u n i c i p a l A f f a i r s , the l a n d use c o n t r a c t was considered unique and i n d i v i d u a l . ( S o u t h - Interview) The M i n i s t e r h i m s e l f h a i l e d h i s new l e g i s l a t i o n as " r e v o l u t i o n a r y " , (The P r o v i n c e , March 26, 1971) and was o b v i o u s l y e n t h u s i a s t i c about the technique,. (Personal Communi-c a t i o n - Va r i o u s sources) Nonetheless, some c r i t i c s e n t e r t a i n e d m i s g i v i n g s , p a r t i c u l a r l y concerning the extent t o which the concepts i n t r o d u c e d by 702A were under-stood both by the government and by the general p u b l i c . I t was claimed t h a t the l e g i s l a t i o n had been i n t r o d u c e d without a c l e a r understanding of e i t h e r i t s i n t e n t , p h ilosophy or reasoning. As a r e s u l t , one planner 109 notes, "there i s an aura of m y s t i c i s m about 702A." S i m i l a r c r i t i c i s m appeared i n the n e w s l e t t e r of the P l a n n i n g I n s t i t u t e of B.C. and bemoaned the government's abuse of p u b l i c o p i n i o n by h o i s t i n g 702A "up the f l a g -p o l e to see who s a l u t e s " . "A few p o s i t i v e g u i d e l i n e s " , the comment continues, "as how new l e g i s l a t i o n should be used would be an i n d i c a t i o n t h a t the use of such l e g i s l a t i o n has been thoroughly thought out". ( S t a l l a r d , 1971, p.3) Others have p e r c e i v e d what they c o n s i d e r t o be a c o n f l i c t i n the theory of the 702A l e g i s l a t i o n . While government press r e l e a s e s and p u b l i c statements have been i n t e r p r e t e d as encouraging the use of the l a n d use c o n t r a c t t o achieve r e s u l t s not a t t a i n a b l e w i t h t r a d i t i o n a l zoning, other sources have cautioned t h a t the l a n d use c o n t r a c t "should not r e p l a c e the normal zoning system" but should i n s t e a d be s t a n d a r d l y a v a i l a b l e as an a l t e r n a t i v e t o zoning (South - L e t t e r ) Therein l i e s the c o n f l i c t , f o r as one m u n i c i p a l study of 702A concluded, "How can the l e g i s l a t i o n on the one hand decree t h a t a l a n d use c o n t r a c t should not be used t o circumvent normal zoning and on the other hand a l l o w the issuance of a l a n d use con-t r a c t which permits a development which o r d i n a r i l y would be i n contraven-t i o n of e x i s t i n g l a n d use c o n t r o l s and r e g u l a t i o n s ? " (Surrey, D r a f t Report on S. 702A, January 2, 1972) Despite some attempts by the Department of M u n i c i p a l A f f a i r s t o j u s t i f y i t s " a l t e r n a t i v e " p o s i t i o n on the use of 702A, i t now appears t h a t the Department has r e i t e r a t e d i t s stand t h a t the l a n d use c o n t r a c t not be used t o the e x c l u s i o n of zoning. S. 702A represents " r e f i n e d zoning" f o r many m u n i c i p a l i t i e s , one o f f i c i a l c l a i m s (South - Interview) 110 and there i s warning t h a t any use of 702A t o o b v i a t e zoning might w e l l be s u f f i c i e n t j u s t i f i c a t i o n f o r i n t e r v e n t i o n by the M i n i s t e r . ( S o u t h - L e t t e r ) There i s i n d i c a t i o n however t h a t at l e a s t some d i s t r i c t s and m u n i c i p a l i t i e s have a l r e a d y i n i t i a t e d p o l i c y which could w e l l i n v o l v e the use of S. 702A to exclude or e l i m i n a t e the need f o r t r a d i t i o n a l zoning c o n t r o l s . 1 "While the Government f e l t t h a t there was a major need f o r some. more adequate means t o c o n t r o l the l a r g e m u l t i p l e - u s e and community development schemes being contemplated i n a number of lower mainland communities (The P r o v i n c e , March. 26, 1971), i t might be questionable whether i n f a c t there was any r e a l need at a l l f o r the type of use and development c o n t r o l contemplated by the l a n d use c o n t r a c t . The M i n i s t e r of M u n i c i p a l A f f a i r s may have f e l t t h a t "zoning i s a crude weapon f o r r e g u l a t i n g development" (The Vancouver Sun, A p r i l 28, 1971, p.i+U) but some planners and a d m i n i s t r a t o r s a c t u a l l y r e p o r t e d t h a t rezonings were somewhat s i m p l e r and f a r quicker, and i n some Instances a much p r e f e r a b l e means of c o n t r o l . A number of r e g i o n a l d i s t r i c t s and m u n i c i p a l i t i e s have 2 not as y e t u t i l i z e d S. 702A and at l e a s t seven of these i n c l u d i n g f o u r G.V.R.D. members, i n d i c a t e d t h a t they were p r e s e n t l y s a t i s f i e d w i t h the e x i s t i n g r e -zoning procedures. I t was expected t h a t some use of S 702A would be the r e s u l t . o f prompting by the Government, and i n l i g h t of the a l l e g e d l y e n t h u s i a s t i c and p e r s o n a l i n t e r e s t of t h e - M i n i s t e r i n the new l e g i s l a t i o n , an attempt was made to e s t a b l i s h the extent or degree of government encouragement t o the use of S. 702A. "'"eg. M u n i c i p a l D i s t r i c t of Surrey, where by c o u n c i l p o l i c y a l l rezoning a p p l i c a t i o n s are to proceed v i a S. 702A. 2 E. Kootenay, Sunshine Coast, New Westminster, P o r t Moody, Burnaby, North Vancouver D i s t r i c t and C e n t r a l Saanich. I l l Queries were directed only to those jurisdictions with actual Land Use Contract experience (Q. 13)^ but only four of the seven regional districts and a surprisingly small two of fourteen municipal replies, constituting but 28$, reported any D.M.A. encouragement. In contrast, three regional districts and twelve municipalities reported "no encourage-ment". Correlated data on form and procedure tended to sustain this low figure, for only two regional districts and two municipalities, 2k% of total .replies, indicated that the idea or origin of the contract was derived from the Department of Municipal Affairs.(Q. 12) Just how effective was the communication between municipal and government officials might be guaged by comparing the following data and media report. In reply to criticisms that the legislative amendment changing the requirements for by-law approval from a 2/3 to a simple majority had not been preceded by consultation with the municipalities, the Minister of Municipal Affairs had retorted that the "U.B.C.M. was consulted at the executive level". (The Sun, April 28, 1972, p .Uii) None of the sixteen replies from municipalities and regional districts reported the origin or encouragement of S. 702A from this same Union of British Columbia Municipalities. It would appear then that the government enthusiasm for the use of 702A has not necessarily been picked up by the planners and administra-tors at the local level. Many seem cautious in their approach to the new legislation and some entertain definite misgivings as to its use. Nonetheless, nearly k3% of the general comments on 702A, ten replies from the twenty-three administrators and planners responding to an invitation I See A p p e n d i x A. 112 f o r general remarks,(Q.18) provided comments of a g e n e r a l l y p o s i t i v e nature and noted the Land Use Contract as a " u s e f u l " and " v a l u a b l e " t o o l , " d e s t i n e d t o be the way of the f u t u r e " . The remainder of the t o t a l p r o v ided e i t h e r q u a l i f i e d expressions of agreement (U), or remarks of a g e n e r a l l y c a u t i o u s nature mentioning areas of s p e c i f i c or general concern. 702A procedure was c r i t i c i z e d as l e n g t h y and cumbersome i n f o u r i n s t a n c e s , w h i l e the remainder noted the confusing and unclear i n t e n t of the l e g i s l a t i o n , the danger of spot zoning and the need f o r comprehensive p l a n n i n g , and c e r t a i n other problems i n h e r e n t i n the r e s t r i c t i v e covenant aspect of S. 702A. Although no attempt was made t o d i r e c t l y a s c e r t a i n the degree of acceptance and understanding by the owners or developers being p a r t y to the l a n d use c o n t r a c t or the general p u b l i c , s u f f i c i e n t i n f o r m a t i o n was obtained from the q u e s t i o n n a i r e r e p l i e s t o permit at l e a s t some s l i g h t i n d i c a t i o n of t h e i r p o s i t i o n . Asked t o i n d i c a t e whether developers or landowners appeared t o p r e f e r 702A procedure t o the o l d rezoning, k3% of the r e p l i e s ( 9 of 21) r e p o r t e d t h a t the new l e g i s l a t i o n was more f a v o u r a b l y r e c e i v e d than the o l d , as opposed t o equal blocks of 28% each who were i n d i f f e r e n t one way or the other or regarded the new technique l e s s f a v o u r a b l y . While o c c a s i o n a l comments on 702A have emanated from government sources, there have been almost no s i g n i f i c a n t j u d i c i a l or p u b l i c obser-v a t i o n s on the new l e g i s l a t i o n and i t has proven d i f f i c u l t to guage the extent of p u b l i c awareness and understanding. Nevertheless, s c r u t i n y of the data r e l a t i n g t o the p u b l i c hearing does provide some i n d i c a t i o n , a l b e i t of a hearsay nature, of p u b l i c r e c e p t i o n of 702A. For i n s t a n c e , 113 ten of twenty-one replies, some U8$ reported general public agreement at the 702A hearing required by subsection (6), while 15$ indicated that public reception was "neutral.': The remaining 38$ of the replies reported opposition to the contract at the public hearing. In one municipality where a l l residential zones had been declared development areas, public opposition became of such magnitude and proportion that rezoning to multiple-family residential use had to be retained instead. While i t i s neither possible nor correct to ascribe such opposi-tion to the use of the land use contract per se, as opposed to traditional rezoning procedure, there does appear to be some confusion in the public mind. As one Regional D i s t r i c t planner notes, "People in general are very confused on Land Use Contracts... they are more used to the security of zoning." Public opposition i s however more l i k e l y centered about particular aspects of the proposed development than the mode for f a c i l i -tating i t . Nonetheless, one administrator has reported that because of the considerable negotiation which i s apt to precede land use contract hearings, public reception and opinion has tended to coalesce about either approval or blanket opposition, resulting in easy acceptance or immediate and outright rejection. The data does not however seem sufficient to either conclusively support or refute the proposition. It does not appear, for instance, that any more public interest than normal has been generated through the use of land use contracts, for 50$ of nineteen replies reported attendance at hearings as average in comparison with a rezoning hearing, four showing below average and fiv e above average attendance. One might conclude l l i i however that those in attendance were somewhat more aware and articulate than usual, because only one reply of the eight indicating opposition f e l t that i s was below the average for a rezoning public hearing. Four replies noted that the opposition where present, was average and three reported above average opposition. Nonetheless, only three of sixteen replies, 19%, advised that any deviation from the proposed contract had resulted from public hearing reception, the balance reporting i n the negative. Although so l i d comparative data i s not available for rezoning hearings, the data seems ito, indicate that while there i s l i t t l e difference in attendance or the general mood at contract hearings, those in atten-dance are more responslvely aware. This, together with the small proportion of instances where changes were incurred by reason of public reception, might lend some small support to the proposition that because of the pre-negotiation inherent i n 702A procedure the opposition i s less fragmented, better informed and less l i k e l y to reject the proposed contract. While i t i s true that i f the Land Use Contract i s used exclusively then public hearings would be held for a l l proposed developments, in con-tradistinction to those developments which, because they conform to exist-ing zoning, may not require rezoning hearings, i t i s nevertheless d i f f i c u l t to draw conclusions as to whether the public interest i s being better served with the land use contract procedures. The Minister of Municipal Affairs had advised Municipal officers to always present proposals to the public before drafting any by-laws regarding development plans (The Vancouver Sun, May 13, 1972), but in at leasfea few instances, the 115 public hearing has already been c r i t i c i z e d as but a rubber stamp. Generally however, i t would appear that the public interest i s being served at least as well with 702A as by the standard rezoning procedure, and perhaps even better. The declaration of a Development Area, for instance, adver-tises an intent to entertain contract applications and could be providing sufficient pre-warning to interested public parties, while the negotia-tions prior to contract execution or public hearing can also involve segments of the public. Analysis of the overall data however, seems to indicate that neither the planners nor the public are any too clear on what S. 702A rea l l y represents. Although i t s short-term effects - a change i n land use - seem l i t t l e different from that effected by a rezoning, there i s s t i l l confusion in the public mind and uncertainty by the administrators as to the long-range and theoretic implications of the new legislation. While clearly articulated government statements could go far in dispelling this confusion, i t seems that the theory of S. 702A i s not yet even f u l l y understood by i t s creators. THE USE OF THE LAND USE CONTRACT Relatively l i t t l e information concerning the scope and theory of S. 702A has yet emanated from government sources and attempts to otherwise ascertain such information.have not been too successful. Nevertheless, some press statements are available and these together with impressions and material obtained from interviewed personnel provide at least some indication of the government position. Considerable data, ' 1 on the other hand, was obtained from the questionnaires and permitted See Appendix A 116 a n a l y s i s of the ways i n which the l a n d use c o n t r a c t has so f a r been employed. Comparison of these uses w i t h the goals and objects, of 702A as expressed by the Department of M u n i c i p a l A f f a i r s produced some i n t e r e s t i n g r e s u l t s . For the purposes of t h i s e x e r c i s e the government's p o s i t i o n on a n t i c i p a t e d uses of 702A was d e r i v e d from the f o l l o w i n g : 1. In i n t r o d u c i n g B i l l 100 - the f i r s t appearance of 702A i n i t s present guise - the M i n i s t e r of M u n i c i p a l A f f a i r s • o u t l i n e d the purpose and primary object of the'new l e g i s l a t i o n t h u s l y : "The Development Area amendment was designed to s i m p l i f y procedure f o r major development p r o j e c t s and ... t o provide, f o r l a r g e - s c a l e comprehensive development without a rash of zoning by-laws"; (The P r o v i n c e , March 26, 1971.) 2. L a t e r c l a r i f i c a t i o n was p r o v i d e d In correspondence r e c e i v e d from the Department's D i r e c t o r of Regional Planning'who explained t h a t 702A i s t o be used "whenever zoning i s inadequate," p a r t i c u l a r l y i n i n s t a n c e s i n v o l v i n g l a r g e - s u b - d i v i s i o n development where s e r v i c e s and open space are r e q u i r e d , and i n redevelopment o f downtown cores and s i m i l a r c o m p l e x i t i e s , (South - L e t t e r . ) 3. The M i n i s t e r p r o v i d e d f u r t h e r scope i n February of 1972, almost a year a f t e r the i n t r o d u c t i o n of B i l l 100, when he noted t h a t the . l e g i s l a t i o n was intended t o keep costs down, provide f o r parks and r e c r e -a t i o n l a nds, and ensure t h a t p u b l i c housing needs are met. (Vancouver Sun, February 9, 1972) He i s a l s o r e p o r t e d a t ' t h i s time t o have advised i n d i v i d -u a l planners t o u t i l i z e the l a n d use c o n t r a c t f o r a l l l a r g e f i v e or ten acre developments. (P e r s o n a l Correspondence, June 27, 1972.) While there has a l s o been some.suggestion by the M i n i s t e r t h a t the l a n d use c o n t r a c t be used t o " f r e e z e the r e s a l e p r i c e of land" (.The  Vancouver Sun, February 9,1972), none have so f a r ventured, t o employ the c o n t r a c t i n concert w i t h a l a n d f r e e z e , and the i d e a does not appear, i n any 117 event, to have received further airing by the government. Having thus determined, so far as possible, the government's deliniation of instances and uses where the land use contract should be employed, a comparison could be made with the actual uses to which 702A has so far been put. The following table categorizes seme 59 out of a total 91 known uses of 702A, plus seven applications under the old permit legislation, and encompass a l l stages of progress for which reliable data i s available. TABLE I USES OF S. 702A - THE LAND USE CONTRACT A. Residential 1. Apartment 2. Condominium 3. Sr. Citizen High-Rise k. Other Specialized Res. SUB 5. Sub-Division 6. Recreational Sub-Div. SUB 7. Mobile Home -Trailer Park 8. Motel 9. Camp Ground RES. TOTAL B. 12 (lU) C. 2 2 D. 3 (U) E. 2 (U) F. 19 <2U) 3 G. _J± H. 7 I. 5 1 2 hi (U6) Industrial 1 Large Scale Commercial 6 Standard Commercial 3 Large Scale Recreation-al 2 Architectural Control 1 Combined Uses 2 Use Conflicts 1 " A l l Development" 2 GRAND TOTAL (2) ~W 20 5"9 (66) * The figures i n brackets represent the combined total of both land use contract and development permit applications. 118 From the derivation of the types of uses which appear to have received government encouragement or sanction, summarized as: 1) large-scale or comprehensive commercial or industrial developments; 2) multiple-use developments; 3) major subdivisions requiring amenity or servicing provisions; and k) special development problems and other complexities not easily soluble with traditional zoning; i t can be seen at least prima facie, that the only items from Table I that f i t comfortably within the o f f i c i a l l y sanctioned uses are A(5>) or ( 6 ) , B,C,E and G, while A - (2), (3) and (k) might also have potential application here. At the least 18 and at the most 25 of the t o t a l number of contract applications, thus come within these terms of reference. The balance, representing about 5>Q% of the total, would seem therefore beyond the pale of sanctioned legislative competence. To further investigate this comparison, a more intensive inquiry was made using data on the factors cited by the planners and administra-tors as their reasons for u t i l i z i n g S. 702A. The following table l i s t s actual uses, or where the land use contract has not yet been employed, contemplated uses, as grouped by thosefactors; 119 TABLE II FACTORS FOR THE USE OF 702A. Q.ii Q.C 2 702-A - R E A S O N S F O R U S E . ACTUAL CONTEMPLATED TOTAL 1. Design Control 5 2 7 2. Landscaping h 2 6 • 3 . F l e x i b i l i t y a. less stringent regulations 3 1 b. more stringent regulations 6 c. public works control 1 1 12 U. Complicated Project ' 3 3 5". Major Development ii ii 6 . Mixed Uses k ii 7. Staging 1 1 2 8. Sub-Division 5 1 6 9 . Acquisitionary a. parks or recreational land 2 b. roadway dedication 1 c. servicing charges 2 1 6 ilO. Use Variations a. instrusion uses or incompatibility 7 2 b. permit specific but not general use 2 1 c. permit use not specifically provided for i n zoning by-laws ii 3 19 11. Special Problems a. emergency t r a f f i c control 1 b. Strata T i t l e s Act - condominium 1 c. s o i l and sanitation 1 3 12. General F l e x i b i l i t y 2 2 13. " A l l Types" 1 2 3 TOTALS 56 21 77 120 Rather than attempting an a n a l y s i s of t h i s t a b l e i n the terms of r e f e r e n c e c i t e d e a r l i e r and as used above, regard was had t o the o f t e n encountered axiom t h a t S. 702A - the Land Use Contract - should not be used i n i n s t a n c e s where t r a d i t i o n a l zoning methods would s u f f i c e . 1 I t was t h e r e f o r e a n t i c i p a t e d t h a t s u b t r a c t i n g from the above f a c t o r s those which c o u l d assumedly have been adequately handled by zoning would leave a remainder which by themselves would be l i k e l y s u b j e c t s f o r 702A. At f i r s t glance f o r i n s t a n c e , the "Use V a r i a t i o n s " of #10 seem t o be a t t a i n a b l e e i t h e r through an i n c r e a s e i n the number of zoning c a t e g o r i e s or a r e l a x a t i o n of c o n t r o l s by a Board of Variance. P r e v a i l i n g l i b e r a l 2 a t t i t u d e s towards spot zoning by some Canadian courts might permit i n t r u s i o n a r y uses not g e n e r a l l y a l l o w a b l e i n other j u r i s d i c t i o n , although 3 a recent Kamloops case has u n d e r l a i n the n e c e s s i t y f o r a v o i d i n g d i s c r i m -i n a t i o n i n zoning by-laws. M i n i s t e r of M u n i c i p a l A f f a i r s has h i m s e l f e x p r e s s l y cautioned t h a t S. 702A cannot be used as a device f o r spot zoning. (The P r o v i n c e , March 26, 1971, p.6) I t a l s o seems p o s s i b l e t o remove the " F l e x i b i l i t y " uses of #3 from those remaining f o r c o n s i d e r a t i o n by 702A, on the b a s i s t h a t i t appears t h a t these ends c o u l d be accomplished by a more e f f e c t i v e use of both e x i s t i n g c o n t r o l s and new means of l e s s magnitude than the land use c o n t r a c t . Comprehensive Development zones, f o r i n s t a n c e , or the use of concepts s i m i l a r t o the Planned U n i t Development^' 1 See above, p. 109. 2 See above, p. 68. 3 Standard O i l of B.C. L t d . & A.R. M e t c a l f e C o n s t r u c t i o n L t d . v. The  C o r p o r a t i o n of the C i t y of Kamloops. 1972, 5 WWR 660 ^ See above, p.. 81. 121 would l i k e l y provide satisfactory solutions for not only the factors and problems of attaining f l e x i b i l i t y , but also the "Major Development" issues and the "Mixed Uses". The Municipality of Burnaby for example, which encompasses a large area of both development and re-development potential, reports that i t s existing zoning and development procedure i s satisfactory to handle submitted projects to date and that i t therefore has no present need for the land use contract. Similar explanations have also come from several other lower mainland municipalities who have not yet actually used 702A1, and of the twenty-nine reasons advanced for not using the land use contract or development area procedure, Question C - 1, almost 25$ indicated "present satisfaction with existing zoning procedures". Summing together therefore the factors of " F l e x i b i l i t y , and the a l l i e d "General F l e x i b i l i t y " of #12, "Major Developments", "Mixed Uses" and "Use Variations" produces a total of forty-one instances where the desired ends might seem to be more generally available with the existing or amplified zoning controls. Subtracting this figure from the total, corrected to seventy-three by the deletion of the three replies for " A l l Types", leaves an aggregate of some thirty-two factors, considerably less than half, which would appear to warrant land use contract consideration. Extracting these remaining factors from Table II produces the following: North ^ Vancouver D i s t r i c t , and New Westminster. 122 TABLE III Subjects for 702A Consideration Total Uses A. Design & Landscaping 13 B. Acquisition 6 C. Complicated Projects 3 D. Staging 2 E. Sub-Division 6 F. Special Problems 3 Before however accepting the above as valid objects for 702A i t might be possible to take one further step and to subject them to scrutiny i n terms of the "considerations" l e g i s l a t i v e l y required by both 702A and 702 - the standard zoning authority. The Municipal Act provi-des that the land use contract provisions can only be exercised so long as the Municipal Council, or Regional Board, has regard not only to the considerations of 702A but also those referred to i n Section 702: "702 (2) In making regulations under this section, the Council shall have due regard to the following considerations:-(a) The promotion of health, safety, convenience, and welfare of the public: (b) The prevention of the overcrowding of land, and the preservation of the amenities peculiar to any zone: (c) The securing of adequate light, a i r and access: (d) The value of the land and the nature of i t s present and prospective use and occupancy: (£) The character of each zone, the character of the buildings already erected, and the peculiar su i t -a b i l i t y of the zone for particular use; and (f) The conservation of property values." The land use contract provisions read: "702A (1) In exercising the provisions of this section, the Council shall have due regard to the following consider-ations i n addition to those referred to i n subsection (2) 123 of section 7 0 2 : -(a) The development of areas to promote greater efficiency and quality: (b) The impact of development on present and future public costs: (c) The betterment of the environment: (d) The fulfillment of community goals: and (e) The provision of necessary public space." Just how important these "considerations" are remains some-what of a moot point. The recent decision i n the North Vancouver Neptune Terminals case 1 did however contain a strong admonition to pay special attention to these reasons whenever applying the zoning sections, and the Prince George s o l i c i t o r who helped prepare the draft contract and procedural guidelines now being observed i n a large proportion of the d i s t r i c t s and municipalities similarly warns municipal officers to pay-particular heed to these considerations.(Wilson, 1971, 50) Unfortun-ately, no j u d i c i a l or legislative assistance can be derived from other Canadian provinces for i t would appear that only British Columbia has included these types of provisions i n authorizing the Municipalities and D i s t r i c t s to exercise zoning and development controls.(RAIC, 1965 7) In l i k e l y response to these recommendations, and on the advice of s o l i c i t o r s , a majority of contracting local authorities have made specific reference to the considerations of 702(2) and 7 0 2 ( 1 ) . 2 Six of the eleven contract forms examined contain such a reference, 3 while another refers to these considerations in the authorizing by-law. Only those contracts which do not appear to follow the model form prepared "''Nov. 18, 1970 Supreme Court of B.C. (Unreported), p Okanagan-Similkameen, Fraser-Fort George, Surrey, Delta, Richmond and Prince George. ^Povt Coquitlam. 12U by Mr. Wilson" make no reference whatsoever t o the sections. Whether or not i n f a c t the Councils and Boards a c t u a l l y do attend to these considerations i n authorizing a land use contract i s obviously d i f f i c u l t to determine, but those considerations do seem s u f f i c i e n t l y broad to provide at l e a s t some v e s t i g a l authority f o r i n -cluding a l l s i x of the above subject groups as p o t e n t i a l l y v a l i d objects of S. 702A. A more personal or subjective analysis might p o s s i b l y assign more s p e c i f i c considerations to each of the subjects l i s t e d , but the r e s u l t s would vary according to each i n d i v i d u a l ' s a p p l i c a t i o n s , and without the b e n e f i t of fu r t h e r j u d i c i a l guidance or consideration t h i s exercise would serve no u s e f u l purpose at t h i s point. THE PRACTICAL CONSIDERATIONS 1. Status The questionnaire served a dual purpose: Not only was i t designed to as c e r t a i n the degree and extent to which the S. 702A pro-v i s i o n s were perceived and understood, but i t also provided both a t a l l y of the number of development areas and land use contract a p p l i c a t i o n s thus f a r encountered and, where authorizing by-laws or contracts had a c t u a l l y been prepared, an i n d i c a t i o n of form and content. While the types of uses and t h e i r r a t i o n a l e had greater i m p l i c a t i o n s f o r analy-t i c a l purposes, the catalogue of contracts d i d at l e a s t provide a r e l a t i v e i n d i c a t i o n of progress i n the general use of 702A. By the l a t e spring of 1 9 7 2 , almost a year following the i n t r o -duction of the new l e g i s l a t i o n , exactly h a l f of the re g i o n a l d i s t r i c t s and at l e a s t twenty B.C. m u n i c i p a l i t i e s had had some experience with 125 S. 702A, as indicated by the following table: TABLE IV Regional Districts Municipalities Total Development Area Declaration only U 3 1* Land Use Contract Applications a) 1 - 3 h 9 1 3 b b) 3 - 5 3 7 10° c) More than 6 3 3 6 d TOTAL lk 22 36 - June 1972 a - Comox Strathcona, East Kootenay, Alberni-Clayoquot, Thompson-Nicola R.D.s: New Westminster, N. Saanich, Delta. b - G.V.R.D., Bulkley-Nechako, N. Okanagan, Peace River-Liard, R.D.s: Port Coquitlam, Maple Ridge, Oak Bay, Sydney, Esquimalt, Mission,Matsqui^, Sumas-*, McKenzie*-c - Squamish-Lillooet, Okanagan-Similkameen, Fraser-Fort George R.D.s: West Vancouver, North Vancouver City, Coquitlam, Richmond, White Rock, Victoria, Saanich d - Cariboo, Central Okanagan, Nanaimo, R.D.s: Langley City, Prince George, Surrey. Note * - indicates no substantiating data received either for reason of no reply to the questionnaire or because infor-mation was received too late for inclusion. Thus, only eight communities have had what might be considered as "major" experience with the terms of S. 702A although at least another twenty-three have had at least some dealings with land use contract applications. Roughly half of the regional d i s t r i c t s and an obviously large but unascertained and somewhat meaningless number of municipalities 1 2 6 have had as y e t no experience w i t h S. 702A. A number of these d i s t r i c t s and municipalities''" have however re p o r t e d t h a t although they had not u t i l i z e d the a c t u a l procedure, a c t i v e c o n s i d e r a t i o n was being given t o i t s implementation, i n c l u d i n g the examination of p o s s i b l e development areas and, i n some i n s t a n c e s , the p r e p a r a t i o n of d r a f t c o n t r a c t s i n a n t i c i p a t i o n of 702A a p p l i c a t i o n s . Wherever an a p p l i c a t i o n f o r a l a n d use c o n t r a c t i n d i c a t e d t h a t S. 702A was i n a c t i v e process, the l o c a l a u t h o r i t y was asked t o p r o v i d e i n f o r m a t i o n on the s t a t u s of the a p p l i c a t i o n and the form and procedure being observed and the f o l l o w i n g t a b l e p r o v i d e s an approximate i n d i c a t i o n of the s t a t u s of some t h i r t y - o n e r e g i o n a l d i s t r i c t and s i x t y m u n i c i p a l l a n d use c o n t r a c t s . Information on a f u r t h e r twenty or so a p p l i c a t i o n s i s not i n c l u d e d i n t h i s t a b l e f o r the f o l l o w i n g reasons: a) i n s u f f i c i e n t I n d i c a t i o n on s t a t u s of i n d i v i d u a l c o n t r a c t s was a v a i l a b l e , as i n the case of P r i n c e George and the Cariboo, b) i n f o r m a t i o n was r e c e i v e d too l a t e f o r c o m p i l a t i o n , eg. Nanaimo C i t y and McKenzie D i s t r i c t , c) no r e p l y t o the q u e s t i o n n a i r e was r e c e i v e d , eg. Matsqui, and C h i l l i w a c k , and d) the task of examining each of a l a r g e number of c o n t r a c t a p p l i c a t i o n s , as i n Surrey where each rezoning a p p l i c a t i o n i s , by c o u n c i l p o l i c y , t o be processed under S. 702A, proved beyond the scope of t h i s p r o j e c t . TABLE V Status of Contract A p p l i c a t i o n s June ' 72 Regional D i s t r i c t s M u n i c i p a l i t i e s T o t a l A. R e j e c t e d or Dropped B. Completed and F i l e d 12 7 19 2k 3 21 Terrace, P o r t Moody, North Vancouver D i s t r i c t , C e n t r a l Saanich. 127 TABLE V CONTINUED Contract Applications Districts Municipalities Total Status of ; es June « 72 C. Completed, not yet f i l e d 9 9 D. Approved, but awaiting execution 2 2 E. Awaiting Public Hearing Prior to Approval 7 7 F. Being Drafted 10 9 19 G. "Pending" 6 5 11 TOTAL 31 60 91 Translating these s t a t i s t i c s into percentages, as of Summer 1972 some 21$ of the 702A applications have been dropped, 26$ have been pro-cessed to their completion and the remaining 53$ remain i n some stage of the proceedings. While i t would perhaps have been useful to compare this data with the disposition of standard rezoning applications, the figures by themselves do not appear unreasonable, and indications else-where tend to substantiate certain procedural similarities. 2. Form Further data on completed land use contracts or the master contract forms themselves were submitted by fourteen regional d i s t r i c t s and municipalities, and these were studied both from the point of view of their own content and in the light of other questionnaire data. The most pronounced indication was that the majority of these contracts seemed to spring from or align with one particular form, subsequently discovered to have been prepared by J. Gait Wilson, a Prince George 128 s o l i c i t o r with an early and particular interest i n S. 702A. At least fi v e of the contracts examined, for instance^ follow the Wilson format exactly 1 while an additional three adhere somewhat to this formula but with the addition of a number of additional, and in some instances 2 modifying, provisions. The remaining five contracts, representing about U6% of the to t a l , appear significantly distinct to stand on their 3 own, and suggest origins entirely independent of the Wilson model. Inquiries as to contract form were also included in the ques-tionnaire and twenty replies were received. The great majority, over 75% of the to t a l , reported that their land use contract forms were devised and prepared by a combination of lawyer and planning staff. Only three municipalities indicated that contract preparation had been through the exclusive services of a lawyer, while two others appeared to use the services of either the planner or administrator without any legal assistance whatsoever. Nonetheless, some degree of legal input was therefore present in eighteen of the replies, an 85% coverage. Yet, in reply to a question on the origin of the contract form, only half appeared to f e e l that form initiated with the s o l i c i t o r , the remainder noting either the Municipal Act or Regional District meetings as responsible. Terrace, Fraser-Fort George, Prince George, Mission and Delta. i Okanagan-Similkameen, Richmond and Surrey. 1 Esquimalt, Port Coquitlam, Coquitlam, West Vancouver and White Rock. 129 There was however a significantly low response to this question, only ten replies, and this probably reflects confusion over the ambiguity of the question. In any event, i t seems that the legal profession has had a significantly major involvement in the preparation of land use contracts, and while this might diminish as forms and procedure become more stan-dardized, there remains the likelihood of some degree of continued consultation and assistance. Municipal Affairs had indicated that i t does not favour the preparation of land use contracts by planners alone as i t "tends to l e t the courts do the interpretation" (South - Interview) but the indication to this point i s that contract preparation has been and w i l l l i k e l y continue to be co-ordinated effort between planning staff and lawyer. 3. Procedure Although i t might be expected that the preparation of pro-cedural form, because of i t s administrative nature, would l i e well within the planners' jurisdiction, such has not been the case to date. Although there i s no direct indication of procedural origins, more than half ( 5> of 9) of those d i s t r i c t s and municipalities supplying information on procedure have elected to observe the guidelines pre-pared by Wilson to accompany his contract form. 1 Two others share a common procedure different from and somewhat more detailed than the 2 3 Wilson format, While the remaining three exhibit certain independence ''"Fraser -Fort George, Prince George,Mission, Terrace, & Delta. 2 Cariboo, Squamish-Lillooet. :3Central Okanagan, Bulkley-Nechako & West Vancouver 130 i n the development o f p r o c e d u r a l g u i d e l i n e s . The g r e a t e s t d i s t i n c -t i o n s seem t o l i e i n the d e s i g n a t i o n and number o f approv ing a u t h o r i -t i e s however, and g e n e r a l l y s i m i l a r p a t t e r n s c h a r a c t e r i z e a l l procedure o u t l i n e s submi t ted t o the p o i n t o f adher ing to W i l s o n ' s g u i d e l i n e s or t o the f a i r l y s p e c i f i c p r o c e d u r a l requ i rements o f the l e g i s l a t i o n . The o ther d i s t i n c t i o n s are worth n o t i n g . For i n s t a n c e , a l though most l o c a l c o u n c i l s now r e q u i r e on l y p r e l i m i n a r y s k e t c h p lans t o accompany the i n i t i a l l a n d use a p p l i c a t i o n w i t h f u l l des ign and work ing drawings t o be submi t ted o n l y a f t e r p u b l i c and c o u n c i l : a p p r o v a l has been i n d i c a t e d , a few communit ies have p r o c e d u r a l s tandards r e q u i r i n g a more comprehensive des ign submiss ion a t the t ime o f a p p l i -c a t i o n 1 Of somewhat more s i g n i f i c a n c e however, i s the de te rm ina t ion o f the s t a t u s o f the a p p l i c a n t . I t appears t h a t the p r a c t i c e i n some m u n i c i p a l i t i e s i s t o d e c l a r e the Development A r e a o f 702A (2) a f t e r the a p p l i c a t i o n f o r a l a n d use c o n t r a c t , subsec t i on (3), has been r e c e i v e d , ( v i z . S u r r e y , C e n t r a l Okanagan) There i s , however, c o n s i d e r a b l e suppor t f o r the o p i n i o n t ha t the development a rea d e c l a r a t i o n must 2 preceed any c o n t r a c t a p p l i c a t i o n , and a c a r e f u l r e a d i n g of the l e g i s -l a t i o n seems t o s u b s t a n t i a t e t h i s p o s i t i o n . A t l e a s t one p r o c e d u r a l g u i d e - l i n e r e c e i v e d has however c l a r i f i e d and r e - s t a t e d t h i s r e q u i r e -ment. (Quadra P l a n n i n g S tudy , Development A r e a G u i d e l i n e s f o r Quadra I s l a n d - January , 1972) Eg . Nor th Vancouver C i t y . E g . T. Ca r low , New Westminster Land R e g i s t r a r , P e r s o n a T f - I n t e r v i e w . A number of procedural d i f f i c u l t i e s and misunderstandings have been encountered in the i n i t i a l processing of land use contracts. Several administrators, for instance, complained that S. 702A procedure was both "cumbersome" and "time-consuming", while others preferred the relative "simplicity" of zoning. The procedural sequence and timing for nineteen land use contracts which have been processed more or less to completion tends however to contradict such impressions. Eleven of these contracts, accounting for %Q% of the t o t a l , required a minimum of from four to six months for completion, while a further four applications had a duration of from six to twelve months. The remaining four applica-tions, including one s t i l l "pending" at the time of inquiry,' took from one to two years to completely process. This can be compared with estimates of up to six months for normal rezonings in Vancouver (Geronazzo, 19°U, 2) and both Surrey and Coquitlam (Personal Corres-pondence) . The fact that almost 60% of the land use contract appli-cations f a l l within this range tends to indicate that inordinate delays in processing the remaining applications might be occasioned by circum-stances not necessarily connected with the general procedure. What i s perhaps the last step in most land use contract procedures was expected to cause the most concern for local govern-ment o f f i c i a l s . Although S. 702A (1+) i s clear that the land use contract "shall have the force and effect of a restrictive covenant running with the land" and "shall be registered in the Land Registry Office", there were only a few cautious statements expressed as to i t s effects and longterm implications. Several administrators 132 anticipated problems in enforcing the positive nature of the land use contract, as distinct from the generally negative form of most r e s t r i c -tive covenants, while others have reservations concerning the problems of amending executed and registered contracts. Only one municipality to date has yet attempted to create a reversionary restrictive coven-ant to be released by consent from the Land Registry once construction i s complete according to the terms of the contract, although a few other contracts contain termination clauses and local o f f i c i a l s have expressed similar interest in devising means for terminating or releas-ing the covenant. 1 A number of potentially interesting legal questions seemed implicit in this statutory creation of a restrictive covenant, and i t had been reported that certain Land Registrar had i n i t i a l doubts as to the registerability of land use contracts. It was expected there-fore that a large number of planners and administrators would attest to encountering at least some problems with the restrictive covenant aspect of the land use contract. Nonetheless, only three replies from a total of fifteen received to this inquiry (Q . l6) reported any prob-lems, the balance indicating that no problems had been encountered concerning registration of the contract as a restrictive covenant. Accordingly, an i n i t i a l intent to study this area somewhat more inten-sively ••was- de-emphasized. See for instance, Ascher, 1953? 262, or generally Owens, 1967 or Snyder, 1966. 133 THE LAND USE CONTRACT AS DEVELOPMENT CONTROL, Even a casual familiarity with the land use contract legis-lation reveals a significant degree of similarity between Bri t i s h Columbia's S. 702A and English Development Control. Some assimili-tude might be expected however, considering that the precedent Develop-ment Permit legislation borrowed heavily from Alberta's Interim Develop-ment Control, i t s e l f a copy of much of the English legislation. The existing sections authorizing declaration of a development area and subsequent use of the land use contract to waive provisions of the zoning or "any by-law of the municipality" — in effect determining land use and development in terms entirely extraneous to the by-laws — does permit a discretionary form of control far more common to English development control than American-developed zoning. Nonetheless, zoning continues to be a primary land control form in B.C., and while the land use contract procedure might seem to have the potential for application in a similar manner as Development Control, certain practical and proced-ural disconformities appear to have led to different results. The effective u t i l i z a t i o n of English-style development control appears to rely on the continued existence of two factors:-1) the presence of strong and well articulated government policy on questions of development and land use; and 2) the preparation and observation of an o f f i c i a l community plan to guide and determine local land use decisions. Both these factors seem possible within the provincial context, and the policies of the B.C. Government towards land use and planning were examined in comprehensive planning terms and to attempt an analysis 13k of the strength of the government position and implementation at the local administrative level. The findings indicate something less than a serious or firm position on either point. A l l municipal and d i s t r i c t zoning by-laws, as well as ordin-ances establishing procedure, declaring development areas or authorizing the land use contract must draw their authority directly from the M T i n i c i p a l Act, delineating as i t does the scope and extent of Provincial control over land use and development. Yet traditionally, even although municipal and local governments are in a sense merely "legatees" of the basic provincial authority, they do retain an appreciable degree of independence in such matters within' their own jurisdiction, providing of course that they remain s t r i c t l y within the terms of the Act. A number of recent provisions do however serve to substantially enhance and increase the direct involvement of the provincial government in the l o c a l land control process. Whatever the reasons for the establishment of the Regional Districts legislation — some say they were instituted in response to a need for increased local autonomy — the extent of direct provincial control over their operations has served to broaden the scope for involvement by that senior level in matters and land use and develop-ment control. S. 798 (A) (2), for instance, requires Cabinet approval for any and a l l by-laws, be they zoning, sub-division or otherwise, which affect territory within the regional d i s t r i c t but not included within the confines of a town, village, d i s t r i c t or city. This measure has caused particular concern to those d i s t r i c t s who exercise control over the Unorganized Territories and the section has been c r i t i c i z e d by one planner 135 as an apparent reflection of a lack of confidence by the province in the competence of the Regional D i s t r i c t Boards. Subsection (6) of S. 798(A) appears however to extend this provincial control even further with i t s necessity for Ministerial, as distinct from Cabinet, approval before a land use contract can be approved anywhere within the Regional D i s t r i c t 1 , or in the flood plain of a municipality. In subsection (7) the Minister of Municipal Affairs i s given the power to grant an appeal to parties whose application for a land use contract has been rejected by the Regional Di s t r i c t . He can, " i f he i s of the opinion that the proposal of the owner for development i s reasonable, direct that the lands be designated a development area and a land use contract entered into..." While this section i s notable as authority for the recent Gabriola Island hearings, which ultimately served to substantiate the Board's original rejection of the development proposal, i t also seems to have been given a somewhat different interpretation by the Minister. In a public statement deploring the actions of certain "bureaucrats" who were opposing a proposed Lower Mainland development, the Minister warned local governments to read with caution that section of the act permitting him to allow development i f he decides that i t i s i n the pubjic interest.^ fhe provision of what might be considered central direction i n the administration of land use contracts does however seem more concerned with the consolidation of direct and f i n a l power in the hands of the "''This provisions was repealed by the f a l l 1972 session of the newly elected legislature. 2 ^ emphasis mine) The Vancouver Sun, January 28, 1972, 6. 136 Provincial Government than in providing a series of common and well-conceived policy guidelines for general application throughout the province. Legislation requiring ultimate provincial approval of municipal and d i s t r i c t contracts, and talks of provincial land development freeze to accompany and f a c i l i t a t e implementation of the new legislation (Vancouver Sun, Feb. 9, 1972) to not appear effective as central government guidance, supervision, and assistance to i t s junior governments. Attempts to successfully integrate zoning with comprehensive planning have long posed a problem to both the senior levels of government and administrators and planners at the local level. Although true English development control should obviate any such accommodation, attempts to institute similar control methods on this continent seem to require either some just i f i c a t i o n for a continued co-existence or some other satisfactory means of relating the two procedures and concepts. The experience with S. 702A in this province has been somewhat of an about-face: The original development permit legislation specifically required the existence of an " o f f i c i a l community plan", but this require-ment was dropped by the 1970 amendments and 702A became universally available. Few explanations are available however to explain this policy change, and government o f f i c i a l s have merely pointed out that few municipalities had in fact adopted o f f i c i a l plans, and the scope for the new legislation was thus severly limited.(Personal Interview - Department of Municipal'Affairs ) Th e fact i s however that the provincial authorities did apparently very l i t t l e to in any way encourage the use of the development permit within the natural framework of an o f f i c i a l or 137 comprehensive plan. When, for instance, the Bulkley-Nechako Regional D i s t r i c t attempted to u t i l i z e the new legislation, they were advised by Department of Municipal Affairs o f f i c i a l s that the " O f f i c i a l community plan" did not encompass the District's own adopted Regional Plan. (Personal Correspondence - Director of Planning, Bulkley-Nechako Regional District) Considering the seemingly broad definitional range inherent in the "community plan", the attitude of the government appears unnecessarily r i g i d , and the absence of the community plan requirement has been sharply c r i t i c i z e d by municipal officials.(The Vancouver Sun, Ap r i l 28, 1972, p.IOi). However, deletion of the requirements of the o f f i c i a l commun-i t y plan, did make the new 702A provisions universally available to a l l municipalities and regional d i s t r i c t s and assumedly gave some expression to the sentiments of the government of zoning, development control and comprehensive planning. Although a recent newspaper account reports the Minister as advising councils that, before using zoning controls, they should " . . . f i r s t underscore community goals and values and ... express them i n an o f f i c i a l plan." (The Vancouver Sun, April 28, 1972, p.hk) there have been few indications of present government philosophy to substantiate this position. With attention focused on the problems of inter-relating zoning and comprehensive planning by this somewhat nebulas attitude, one of the major objectives of the questionnaire inquiry was to ascertain the extent such correlation by both local and senior governments and administrative staff. Data and material pertaining both to the adoption or observation of an o f f i c i a l "community" plan and the 138 presence or absence of some form of professional planning staff, considered to be a general though not exclusive indicator of comprehensive planning activity, was collected and evaluated in terms of experience with S, 702A. The results were not unexpected and generally inconclusive but do at least provide somewhat of an inventory. The following tables are drawn from questions A 1, 2 and 3 , and B 2 of the questionnaire and give some indication of the degree and extent of comprehensive planning i n the surveyed communities. TABLE VI Regional Districts Municipalities TOTALS The Regional Planning Division of the Department of Municipal Affairs does however make certain planning services available to those regional di s t r i c t s without a planning staff or access to consultants. Of course, not a l l of the communities included i n these tables have yet had the occasion to employ the Land Use Contract provisions but of those who did, a l l but two municipalities, Esquimalt and Oak Bay, and two Regional Districts, Central Okanagan and Comox-Strathcona, had either an o f f i c i a l l y sanctioned plan or at least one i n general observation. CO > •H CO £ CO U O rH O PH 8 16 ft — co t3 U co * t rH PH CO CO o u o 12 6 2k 18 rH PH O k 2 rH cd -p o EH 2k 2k kQ an bo CO c -p a u •H H •H CO a <H nsu c c an CH nsu an an rH •P o i—i O rH PH CO o PH S3 PH 18 10 28 6 6 8 8 16 rH CO •P O E H 26 2k 50 139 However, the two m u n i c i p a l i t i e s are o l d and w e l l - e s t a b l i s h e d urban ar,eas within the confines of Greater V i c t o r i a , while both r e g i o n a l d i s t r i c t s operate with some form of planning s t a f f . A s i g n i f i c a n t l y higher proportion of communities using 702A had a plan but lacked planning s t a f f - two of twelve regional d i s t r i c t s and t h i r t e e n of twenty m u n i c i p a l i t i e s , f o r a grand t o t a l of f i f t e e n out of twenty-two communities with 702A experience. Only the two r e g i o n a l d i s t r i c t s of C e n t r a l Okanagan and Comox-Strathcona operate with some form of planning s t a f f but without the b e n e f i t of a comprehensive plan. Inter-e s t i n g l y , four of the remaining l o c a l a u t h o r i t i e s who reported no use as yet of 7 0 2 A volunteered the opinion that such lack of a c t i v i t y was d i r e c t l y occasioned by the absence of e i t h e r p o l i c y guidelines or a p r o f e s s i o n a l planning s t a f f . An a d d i t i o n a l four r e p l i e s generally commented that 70?A should not be used without basic guidelines or comprehensive planning . From t h i s generally consistent attempt to incorporate compre-hensive planning, i t seems reasonable to conclude that comprehensiveness i n l a n d use c o n t r o l remains an active concern within the p r o f e s s i o n a l planning s t a f f . The p r o v i s i o n s of 702A have not so f a r been u t i l i z e d anywhere i n the province without at l e a s t consideration by planning s t a f f or adherence to a comprehensive plan, and i t seems u n l i k e l y that the land use contract w i l l be used on any large scale basis without s u f f i c i e n t planning consideration to insure against i r r e s p o n s i b l e use of the l e g i s l a t i o n i n the future. LUO The attitude and policies of the provincial government, on the other hand, particularly as thus far implemented, seem somewhat incon-clusive and i n need of c l a r i f i c a t i o n . While successful employment of English development control requires the preparation and observation of community development plans, few B.C. municipalities or regional districts have yet produced such comprehensive plans, and the Province has made no efforts to encourage the exercise ... Except for a few addresses to conferences and meetings of local o f f i c i a l s and planners, Provincial Government staff has been loathe to provide much assistance in the way of interpreting the new legislation, much to the consternation of a number of municipal and area administrators. Without such guidelines, there has been some confusion and temerity i n the use of 7 0 2 A by these local o f f i c i a l s and there could be some serious question here as to the sufficiency of the planning process which precedes implementation of the provisions. Indeed, continuing confusion on the part of planners and administrators seems to have now extended well past the normal "introduction period" for legislation of this sort and probably exemplifies not only the vagueness of the Provincial Government policy but also an incomplete understanding by local communities, both in terms of the legislation i t s e l f and i t s relation to the overall planning scheme for their area. CHAPTER VI CONCLUSIONS Section 702A i s development control. It appears however that there i s less than a f u l l awareness or understanding of the method: neither the planners, the general public or even the Provincial Govern-ment seem to know why the legislation was introduced or how. i t i s to be used, and are unaware of i t s f u l l implications. Development control i s best characterized by the British legis-lation, serving as i t does as a template for similar enactments and proposals i n other common-law jurisdictions. It differs significantly from zoning by treating each application for development or a change i n use on i t s own merits, and the permit to proceed with such development can be specifically conditioned to that use. There are no general pre-conceived regulations which apply to a class or description of uses, nor i s there any attempt to delineate beforehand the specific types of uses permitted i n an area. The fundamental provisions of S. 702A approximate the British legislation for they provide for a b i l a t e r i a l agreement pertaining to a particular piece of property, and containing conditions which are not only unique to that application but are capable or enforcement notwithstanding any other by-law of the municipality, including the zoning ordinance. ' The agreement i s , of course a contract and so sub-ject to a l l the principles, rights and remedies of the "common law of contracts. Both the English and Alberta legislation, oh the other hand, provides control in the form of a permit issued by the requisite local authority. Development control deals with the merits of each application by reference to a plan. While earlier B.C. legislation specified that the land use contract provisions could be exercised only where there was a community plan, the later deletion of this requirement represents a major and potentially serious departure from traditional development control techniques. Nonetheless, the survey results indicate. that v i r t u a l l y a l l communities so far actively u t i l i z i n g the land use.contract procedure have either now adopted an o f f i c i a l plan or are at least in the process or preparing or observing some form of•comprehensive plan, and most employed a professional planning staff. It i s assumed that these factors, together with the necessity of declaring a development area prior to the receipt of land use contract applications, serve to encourage a comprehensive and planned use of the land use contract legislation. A further feature of Bri t i s h development control i s i t s r e l a -t i v e l y high degree of central government control and supervision. Although this provincial government has achieved some consolidation of the control function through certain review procedures, requirements of government approval i n other areas pertinent to the control of land (eg. The Controlled Access Highway Act, and flood-plain control), and regional d i s t r i c t legislation, the land use contract remains not an administrative permit to proceed but a contract executed between a developer and the municipal council.. As such i t would probably seem 1U3 less amenable to direct administrative supervision and control. While the land use contract i s not a carbon copy of British development control, neither does i t resemble American zoning. Contract or conditional zoning does have some application and similar-i t y to the land use contract, but because of a decidedly different legal basis such application i s somewhat limited. Even contract zoning, when used i n concert with a comprehensive plan, closely approx-imates development control. S. 702A, though perhaps a progeny of both develppment control and zoning, bears the most striking resemblance to the English side of the family. -Why then has development control been introduced to British Columbia i n this fashion? Municipal Affairs personnel maintain that there was a real necessity for some new form of land use control based on municipal demands for change. A number of planners and d i s t r i c t o f f i c i a l s admit that there was some need for a more flexible control form, and that there was some agitation for legislation which would enable a more equitable contribution from developers to offset rising municipal servicing costs. Most of these o f f i c i a l s maintain however that what they really wanted was a form of conditional zoning, similar to the f l e x i b i l i t y introduced i n 1957 to the Vancouver charter, together with the right to charge development fees as currently permitted i n Ontario. Most were surprised at the form of S- 702A and i t s attendant introduction of development control. The i n i t i a l idea for the land use contract appears to have ihh come from within the Department of Municipal Affairs, independent of significant outside suggestions. Few, i f any, studies ..appear to have been conducted on the f e a s i b i l i t y or effects of this new control form, for at least none have been indicated or made available, and.the legislation seems to have been conceived and introduced, without any prior consultation with municipal and d i s t r i c t planner and administra-. tors. Analysis of data-obtained from the questionnaire -tends to underline certain misunderstandings and considerable confusion i n the use and purpose of a land use contract. Most planners reported that their understanding of S. 702A theory and procedure did not come from provincial government sources but had to be derived elsewhere, and that they i n fact received very l i t t l e or no encouragement to employ the land use contract from the government. Although Department of Municipal Affairs o f f i c i a l s indicated that they had hoped that the municipalities would discuss problems inherent i n the new legislation prior to any use (South - Interview), planners agree that the government's real inten-tion was to take a "wait-and-see" stance. (Stallard, 1972, h ) There were also indications that the general public was particularly confused by the new legislation, and recent personal experience clearly substantiates this observation. Certainly the precedent Development Permit was not well received by either the developer or the community and even with the land use contract there i s some evidence of a public reluctance to give up the security of zoning for the uncertainties of S. 702A development control. It seems reasonable to conclude that Section 702A has been introduced entirely without sufficient preliminary investigation and understanding of its theory and practical effects, and that the govern-ment has not only f a i l e d to properly prepare and inform municipal o f f i c i a l s but has been seriously remiss in keeping the general public informed of significant and major changes in land use and development control. Had there been proper consultation i t i s conceivable that the implementation of legislation effecting such a change in the traditional control patterns might not have been necessary. Although the introduction of S. 702A reflects an increasing trend towards use of development control legislation i n North America, i t s introduction into this province may have been somewhat premature. Nevertheless, S. 702A i s now i n active use i n B.C. and i t perhaps germain to inquire into the relative effectiveness of the land use contract i n combatting the problems i t was apparently designed to solve. Most of the planners and administrators surveyed agree that the most serious complaint against zoning, i t s relative lack of f l e x i b i l i t y , has been successfully countered by the new legislation. Developers as well are reported to prefer the more flexible terms possible with S. 702A, and a significant proportion, of the projects proceeding via the land use contract would have been d i f f i c u l t to achieve with existing zoning legislation. However, the criticism that zoning has failed to adequately co-incide with the planning function can equally bele.vied at the land use contract, particularly as there i s now no necessity for general or comprehensive plan. In a l l other instances where development control 1U6 has been discussed or instituted, major emphasis has been placed on the necessity of proceeding in accordance with a comprehensive plan, and the failure of this province to so legislate can be considered the most t e l l i n g and potentially troublesome deficiency of S. 702A • A third major criticism of zoning i s that i t f a i l s to adequately involve the public and to protect the community interest with sufficient review procedures. Section 702A, like the existing zoning l e g i s l a -tion, does provide for a public hearing before the Council can authorize entry into a land use contract, and i n this way the legislation i s per-haps somewhat superior to the limited rights of hearing permitted in the Bri t i s h legislation. The act of executing a contract i s however a p o l i t i c a l action somewhat different from the administrative act of granting a permit, and i t may be that traditional rights of j u d i c i a l review do not have the same application to this council decision. There are further problems in the application of S. 702A which may not yet be clearly understood. Neither the government or the plan-ners, for instance, anticipated any problems with the statutory r e s t r i c -tive -covenant aspect of the legislation. A number of municipal lawyers however indicated concern because such covenants are traditionally negative or prohibitionary i n their aspect, while land .use contracts generally require, rather than prohibit, action by the parties. Another procedural problem with potential impact, on the continued use of S. 702A concerns i t s present pre-occupation with zoning matters. The land use contract provisions are contained within the Zoning section of Municipal Act, allegedly because i t represents "refined zoning for many communities" (South - Interview), and there i s some opinion that S. 702A be restricted i n application to what would traditionally be considered as zoning concerns. As a result there have been relatively few instances where the section has been used for sub-division, this despite claims by the Department of Municipal Affairs that S. 702A i s intended to be uised for such purposes. As well, some municipalities have been utilizing' S. 702A as a matter of course in a l l rezonings, apparently to obtain development charges from the applicants, but of course this procedure would only be available where development i s occuring on land not zoned for the contemplated use. In general, these and other particular uses of S. 702A have been proceeding without the benefit of j u d i c i a l authority or guidance. A very recent Supreme Court ruling on Vancouver Island (Re. By-law  •lU80, N. Cowichan, February 1973, Unreported) considered the nature of the contract being considered at the public hearing, and this case might be interpreted as establishing that no amendments subsequent to that hearing would be permitted. If such i s the case, the f l e x i b i l i t y of permitting minor amendments and the submission of completed archi-tectural and engineering design drawings subsequent to some assurance of being permitted to proceed w i l l be lost. Although S. 702A has been the subject of very few other legal issues to date, i t is apparent that much of the existing procedure coinld be substantially affected by future jud i c i a l considerations. If the provincial government had more carefully addressed i t s e l f to the practical problems and procedures of the land use contract, municipalities could now be proceeding with considerably more assurance and confidence. The provision of government policy and procedural guidelines would be a decided asset to communities i n their '.use of S. 702A. 11*8 As i t i s , B r i t i s h Columbia communities, while at f i r s t some-what cautious i n their use of S. 702A, are now increasingly using the legislation in a variety of ways. Many of these were not intended by the government, some might be considered legally dubious, and a large proportion could probably have been achieved with traditional zoning methods. Nonetheless, there would seem to be evidence of a clear trend towards use of the land use contract despite the nature of i t s practical problems and procedural uncertainties. It appears to be f u l f i l l i n g the needs for greater f l e x i b i l i t y and control in municipal and d i s t r i c t land use and development policies. Its-unique contractual stance seemingly avoids the problems of contract zoning and i t might, with sympathetic legal support, achieve solutions for the problems as perceived by the province and experienced by the communities. Are however B.C. communities mature enough to handle the land use contract? Both the p o l i t i c a l involvement of Council and the administrative capabilities of municipal staff are more involved in the use of S. 702A than previously. The risk in u t i l i z i n g the land use contract as development control without the attendant comprehensive plan i s large, but at least to date development areas are generally being declared in concert with suitable planning studies and the land use contract i s being considered i n accordance with comprehensive planning principles. Nonetheless, i t may be that the province should give consideration to ensuring that only those communities that can provide assurance of some form of comprehensive planning should be given clear access to the land use contract legislation. Ih9 BIBLIOGRAPHY Adler, Gerald M., "A Review of Babcock's The Zoning Game." XLVI, 1968 Canadian Bar Review, No. 1, 159. (March 1968) Adler, Gerald M., Land Planning by Administrative Regulation, Toronto: 1971' University of Toronto Press, 1971. American Law Institute, "Commentary on Article 8 - Administration of 1970 Development Controls by the Local Government - of the Model Land Development Code", in„Marcus, 1970, p.191. Appendix A. American Law Institute, Model Land Development Code, Draft #1, Philadelphia, Pa. 1968 American Law Institute, April 1968. American Law Institute, Model Land Development Code, Draft #2, 1970 Philadelphia, Pa.: American Law Institute, A p r i l 1970 American Law Institute, Model Land Development Code, Draft #3,Philadelphia, Pa.-: 1971 American Law Institute, April 1971. American Society of Planning O f f i c i a l s , Problem of Zoning and Land Use 1968 Regulations, Prepared for U.S. National Commission on Urban Problems, Washington, D.C., 1968. Anderson, Robert M., American Law of Zoning: Zoning, Planning, Sub-Division 1968 Division Control. Rochester, N.Y.: Lawyers Co-op., 1968. Anonymous. "Administrative Discretion in Zoning",' 82 Harvard Law 1968 ' Review, p.668. (1969) Ascher, Charles. "Private Covenants in Urban Redevelopment" in Woodbury, 1953 Coleman. Urban Redevelopment Problems and Practices, 1953. Aykroyd, Peter H. Land Use Control i n Britain, the U.S. and Canada, 1969 Mimeo, Ottawa! Babcock, Richard R. The Zoning Game Municipal Practices and Policies. 1966 Madison:'"• University of Wisconson Press, 1966. Bailey, Bruce R. "The Use and Abuse of Contract Zoning". 12 U.C.L.A. 1965 Law Review, No. 3 , (March 1965) , pp.897-916. Bair, Frederick H., and Ernest R. Bartley, Commentators. The Test of a 1966 Zoning Ordinance. 3 r d Edition, Chicago: A.S.?.0.~, I960 Bair, Frederick H., "Improving Zoning - Some New Approaches", i n 1969 N.Y. State Planning News, V. 33, No.2, March 1969, p.3. 150 BIBLIOGRAPHY Baker, Alden, "0MB i s c r i t i c i z e d i n executive b r i e f , " Toronto Globe 1972 and M a i l , , p. 5. September 16, 1972. B a r n e t t , Jonathan, "An I n t r o d u c t i o n t o Case S t u d i e s i n C r e a t i v e Urban 1970 Zoning", i n Marcms, Xhe 'New Zoning, I I I , p. 125. B a r r , J.G. "Enforcement of Planning C o n t r o l s i n England and Wales" i n 196U Haar's Law and Land, p.162, 196U. B a s s e t t , Edward M., Zoning - The Laws, A d m i n i s t r a t i o n and Court D e c i s i o n s 1936 During the F i r s t 20 Years. ~N.Y.: R u s s e l l Sage Foundation, 1936. Beuscher, J.H., Land Use C o n t r o l s - Cases and M a t e r i a l s . 3rd. Ed. Madison, 196U Wisconsonl C o l l e g e Typing Co. , 1961;.. Blucher, W alter, " I s Zoning Wagging the Dog?", i n Pla n n i n g 1955. 1955 A.S.P.O., p.96. " Bosselman, F r e d P., " S t a t e Land Development L e g i s l a t i o n : Problems and 1968 P o t e n t i a l i t i e s " i n P r i v a t e P r o p e r t y and P u b l i c I n t e r e s t  C o n f l i c t . U n i v e r s i t y of I l l i n o i s - p . 1 2 , 1968. Brooks, Mary E., " E x c l u s i o n a r y Zoning", A.S.P.O. Report No. 25U. 1970 Chicago, I l l i n o i s : American S o c i e t y of Planning O f f i c i a l s , February, 1970. Bryden, Roderick M., "Zoning: F r i g i d , F l e x i b l e on F l u i d " , kk J o u r n a l 1967 of Urban Law , p287, (1967). Clawson, Marion, "Why Not S e l l Zoning and Rezoning", Cry C a l i f o r n i a , 1966-67 Vol. 2 , N o . l , Sacremento: C a l i f o r n i a Tomorrow, Winter 1966-67. 1 C l a r k , Robert M., "Zoning i n Canada" Supp. t o Ontario P l a n n i n g , p.10 1958 O n t a r i o Department of M u n i c i p a l A f f a i r s . Counts, R i c h a r d , P l a n n i n g Law: Some Pro p o s a l s f o r Change. Report 1966 #215. Chicago, I l l i n o i s : American S o c i e t y of P l a n n i n g 1 O f f i c i a l s , 1966. Cramer, R i c h a r d D., "Zoning and What We Can Do t o Improve I t " i960 J o u r n a l , American I n s t i t u t e of A r c h i t e c t s , V o l . 33, No 1, p.90, Washington, D.C. January, I960. 151 BIBLIOGRAPHY Crawford, Clan Jr., Strategy and Tactics in Municipal Zoning, Englewood 1969 C l i f f s , N.J.: Prentice Hall" TS&T. ' ! Cumming, Lome R., "Is Zoning Wagging the Dog?", Zoning 1955, p. 112. 1955 Chicago: A.S.P.O. Cumming, Lome R., "Urban and Suburban Living - Development Control", 1950 Layout for Living, Vol. 33, Community Planning Association of Canada. March 1950. Cunningham, Roger A., "Land Use Control - The State and Local Programs", 1965 50 Iowa Law Review, p.367. (Land Use Symposium), (1965). Curtin, "Zoning and Planning", i n Nimlo Municipal Law Review, Vol. 33, 1970 . p.1*53, Washington, D.C. 1970. Dallstream, Andrew J., and Robert S. Hunt, "Variations, Exceptions and 195U Special Uses". 195U University of I l l i n o i s Law Faculty, p.213 at 236. Davidoff, Paul and Linda. "Opening the Suburbs: Towards'Inclusionary 1971 Zoning", 22 Syracuse Law Review, No. 2, (1971) Delafons, John, Land-Use Controls in the United States, 2nd. Ed. 1969 Cambridge, Massachusetts: Massachusett Institute of Technology Press, 1969. Fonoroff, Allen, "Special Districts: A Departure from the Concept of 1970 Uniform Controls", i n Marcus, The New Zoning, p.82. Freund, Eric C , "Past, Present and Emergent Problems and Practices i n Land Use Control", Xerox - n.p., n.d. Gerecke, J. Kent, "Comprehensive Unit Development: A Review of Legislation 1971 i n Vancouver." Unpublished Paper, University of British Columbia, School of Community and Regional Planning. Spring 1971. Geronazzo, M.P., "Problems of Private Developers re Development Permit" I96I4. Unpublished Paper. University of B r i t i s h Columbia, Faculty of Law. 196I+. 152 BIBLIOGRAPHY Gertler,.L.O. Editor, Planning the Canadian Environment, Montreal: 1968 Harvest House, 196"8\ Goodman, William I. and Eric C. Freund, Editors, Principles and Practice 1968 of Urban Planning, Washington, D.C: International City Managers' Association, 1968. Greer, Harold, "A Tribunal Hauled on the Mat", Vancouver Sun, p.5, 1972 August 8, 197. Haar, Charles M., "In Accordance With a Comprehensive Plan", 68 Harvard 1955 Law Review, p.ll51+, (1955). Haar, Charles M. Editor, Law and Land, Cambridge, Massachusetts: 1961; Institute of Technology Press, 1961;. Heap, Desmond, "English Development Plans for the Control of Land Use", 196U i n Haar's Law and Land, p. 79, 1961;. Heap, Desmond, An Outline of Planning Law, Uth Ed., London: Sweet 1969 and Maxwell. 1969. Heeter, David G., "Toward a More Effective System for Guiding the Use 1969 of Land", in Zoning i s Planning, pp. 56-7U, 1969. Heyman, I. Michael, "Innovative Land Regulation and Comprehensive 1970 Planning'.;, in Marcus, The New Zoning, p.23. Johnston, J. D. Jr., "Developments in Land Use Control", Notre Dame 1970 Law U5;399, (Spring 1970). Krasnowiecki, Jan, "Legal Aspect of Planned Unit Residential Development 1965 with Suggested Legislation", Tech. Bulletin, #52, Washington, D.C.: UrbanILandvIhstitute, 1965. Krasnowiecki, Jan, "The Basic System of Land Use Control: Legislative 1970 Pre-regulation v. Administrative Discretion", i n Marcus, The New Zoning, p.3, Landels, Edward D., "Zoning: An Analysis of Its Purposes and i t s Legal 1963 Sanctions", in 17 American Bar Association Journal, 1963. Laux, F.A., "Zoning Game: Part I - Alberta Style." 9 Alberta 1971 Law Review, p. 268, (1971). .BIBLIOGRAPHY Laux, Frederick A., "The Zoning Game: Part II - Development Control." 1972 10 Alberta Law Review, (1972) . 1.. Lawrence, William S., "A Constructive Evaluation of Land Use Regulations 1969 i n Zoning i s Planning, p.U9, 1969. University of Illinois'. Leal, Allan, "Land Use Control", Lectures to the Law Society of I960 Upper Canada, p.l&T, Toronto: De Boo, I960. Levin, Earl A., "Zoning in Canada - Are We Moving Towards a Development 1957 Permit System", i n Community Planning Review, Vol. 7, No.2, p. 85 -90 , June 1 9 5 7 T -Lewis, Harold,M., Planning the Modern City, Vol. 1, New York: Wiley and 1963 6 t h Printing, 1963. London Ontario Planning Dept., "Principles and Method of Land Use 1969 Planning and Zoning in fche City of London, Ontario. Mimeo, September 1969 ~. London Ontario Planning Dept., Outline for a Staged Development Program 1968 for the City of London, Mimeo, May 196"87 Makielski, S.J., "Zoning: Legal Theory and P o l i t i c a l Practice", ' 1967 h5 Journal of Urban Law, 1967, University of Detroit, 1. Mandelker, Daniel R., Green Belts and Urban Growth: English Town and 1962 Country Planning i n Action, Madison: University of Wisconson Press, 1962. Mandelker, Daniel R., "The Basic Philosophy of Zoning: Incentive or 1970 Restraint", in Marcus , • The'New Zoning, 19.70, p.lij. Marcus, Norman, "Introduction to Part II: Current Zoning Administration" 1970 i n Marcus,..The New Zoning , 1970, p. 97. Marcus, Norman, The New Zoning - Legal Admin, and Economic Concepts and 1970 Techniques, New York: Praeger, 1970. Martin, A.G., "Land Development in Calgary", Habitat, Vol. V., No. 3, 1962 15, Ottawa: C.M.H.C., May 1962. 15U BIBLIOGRAPHY McNairnay, J.D., "Regulation by L o c a l Government; the A p p l i c a t i o n of 1967 of Pl a n n i n g and Zoning L e g i s l a t i o n " . Isaac P i t b a l d o Lectures  to Manitoba Bar A s s o c i a t i o n , p.111;. Megarry, R.E. and H. W.R. Wade, The Law of Re a l P r o p e r t y , 2nd. Ed. London: 1959 Stevens and Sons L t d . , 1959-Megarry, .R.E., "Compensation For the Compulsory A c q u i s i t i o n of Land i n 1-961; England" i n Haar's Law and Land, p.212. ' ' M e r r i f i e l d , Samuel S. "The Current Use of R e s t r i c t i v e Covenants as a 1963 P l a n n i n g Tool". Unpublished Paper, U n i v e r s i t y of B r i t i s h Columbia, F a c u l t y of Law, 1963. M i l n e r , James B., " A d m i n i s t r a t i v e Appeals Under P l a n n i n g L e g i s l a t i o n , 1956 Law S o c i e t y of Upper Canada, S p e c i a l L e c t u r e s , Toronto; p. 117-1U8. M i l n e r , James B., "An I n t r o d u c t i o n to Zoning Enabling L e g i s l a t i o n " . 1962a P l a n Canada, V o l . 3, No. 3, p . l U l . Town P l a n n i n g I n s t i t u t e of Canada, 1962. M i l n e r , James B., "An I n t r o d u c t i o n t o Zoning Ena b l i n g L e g i s l a t i o n " . 1962b UO Canada Bar Review, p . l ( 1962) . M i l n e r , James B., Community Planni n g ; A Case Book on Law and Ad m i n i s t r a -1963 t i o n . Toronto: U n i v e r s i t y of Toronto P r e s s ! 1963. Milner, James B., "An I n t r o d u c t i o n t o S u b d i v i s i o n C o n t r o l L e g i s l a t i o n i n 1965 Canada". U3 Canada Bar Review, p .U9, (1965). M i l n e r , James B., "The Lawyers Roles i n Land Use Pl a n n i n g " , 5 A l b e r t a 1966-67 Law Review, p. 119, (1966-67). Nash, A.L.S., "Legal Aspects of Community P l a n n i n g " , S p e c i a l L e c t u r e , 1953 Law S o c i e t y of Upper Canada, Toronto: De Boo, p.77, 1953. Olson, W i l l i a m A., " C i t y P o p u l a t i o n i n the Enforcement of P r i v a t e Deed 1967 R e s t r i c t i o n s " , i n Pla n n i n g 1967, pp.266-270. Chicago: American S o c i e t y of P l a n n i n g O f f i c i a l s . O n t a r i o , Law Reform Commission, Report on Development C o n t r o l , Dept. o f 1971 J u s t i c e , Ont. 1971. Owens, Dean, "Removing Old R e s t r i c t i v e Covenant", 15 Kansas Law Review, 1967 p.582, (1967). 155 BIBLIOGRAPHY Plager, Sheldon J., "Planned and Land Use Controls - An I l l e g a l 1908 Relationship", in Private Property and Public Interest, University of I l l i n o i s , p.3U, 1908. Pooley, Beverly J., Planning and Zoning in the United States, Ann Arbor, 1961 Michigan: University of Michigan Law School, 1961. Rashleigh, E.T., "Observations on Canadian Cities" in Gertler, "Planning the 1968 Canadian Environment", 168, p.203. Regional Planning Association Inc. "Zoning i s Not for Sale", in Zoning 1955 Bulletin,, No. 75, Reprinted in Beushcher, p. VILL, 165. Reps, John W., "Legal and Administrative Aspects of Conditional Zoning 195l Variances and Exceptions", 2 Syracuse Law Review, 1951, p.5U. Reps, John ¥., "Requiem for.Zoning", Reprint A r t i c l e #9, Center for 1961* Housing and Environmental Studies, Cornell University, Ithaca, N.Y., Reprint Planning 196U, Chicago: A.S.P.O. Reps, J.W. and J.L. Smith, Control of Urban Land Subdivision, Cornell 1963 University, R e p r i n t - ^ 1963. Rettig, Diehl R., Comment -."Zoning and Concomitant Agreements", 3 1968 Gonzaga Law Review, 197, pp. 21* (Spring 1968). Royal Architectural Institute of Canada, Zoning Study Committee, 1965 Reflection on Zoning, Ottawa, 1965. Sager, Lawrence G. "Tight L i t t l e Islands; Exclusionary Zoning; Equal 1969 Protection and the indigent", 21 Stanford Law Review, No.U, p. 767, (April 1969). Sandler, D.H., "Planning the Limitation of Zoning Powers - Case Comment on 1961;-65 Re Mississauga Golf, and Country Club", 1*3 Canada Bar Review, Schaeffer, Enos P., "Contract Zoning and Conditional Zoning", p. 1*3. Vol .11 , 1965 The Practical Lawyer, (May 1965). Shapiro, Ronald M., "The Case for Conditional Zoning", 1*1 Temple Law 1968 Quarterly, p.267, (1968). Smith R. Marlin, "Plan Implementing Legislation: What's Wrong, What to 1969 Do.", Zoning i s Planning, University of I l l i n o i s , p. 1*2, 1969. •BIBLIOGRAPHY Smutz, Huber E., "Is Zoning Wagging the Dog?" Planning 1955, Chicago: 1955 American Society of Planning O f f i c i a l s , p,102. Snyder, J. Herbert, "Toward Land Use St a b i l i t y Through Contracts", p. 1+06, 1966 ' TNatural Resources Journal, , 1966. Stair, Richard S., "Note - Restrictive Covenants and Zoning Regulations", 1961+ 31 Tennessee Law Review, p. 353, (1961+). Stallard, Graham, "Introducing B i l l 100", Vol. 13, P.I.B.C. News, 1971 No. 8, p.3, A p r i l 1971. Stein, Leslie A., "The Municipal Power to Zone in Canada and the U.S.", 1971 XLIX Canada Bar Review #1+, p.53l+, (December 1971). Stevens, Joseph P., "Use and Abuse of the Special Permit i n Zoning Law" 1969 35 Brooklyn Law Review, p.258, (1969)• Stevenson, W.A., "Problems in Alberta's Town Planning Legislation", I 1961 Alberta Law Review, p. 1+31, (1961). Stickel, "Zoning and Planning Notes" Nimlo Proceedings, I968, p.l+?3. 1969 Municipal Law Officers, 1969• Strine, "The Use of Conditions in Land-Use Control", 67 Dick Law 1963 Review, (1963), p. 109-11+3-Sussna, Stephen, New Developments in Zoning Law, Trenton, N.J: Stephen 1969 Sussna Associates, 1969-Trager, David G., "Contract Zoning'1,1 23 Maryland' Law Review, 121. 1963 United Kingdom. Ministry of Housing and Local Government, Report of the 1965 Planning Advisory Group: The Future of Development Plans. London: H.M.S.O.' ~ United Kingdom. Central Office of Information, Town and Country Planning 1968a i n Britain. Reference Division, London: H.M.S.O., 1968. United Kingdom. Ministry of Housing and Local Government, The Use of 1968b The Use of Conditions in Planning Permissions, Circular 5/68, February 6, 1968. H.M.S.O. Fnited Kingdora. Ministry of Housing and Local Government, Planning 1969h Appeals;• A Guide to Procedure. London: H.M.S.C 1969. 157 BIBLIOGRAPHY United Kingdom. M i n i s t r y of Housing and L o c a l Government, Development 1969a C o n t r o l P o l i c y Notes. C i r c u l a r 23/69. P t 1 - General P r i n c i p l e s , H.M.S.O, 1969. U n i v e r s i t y of I l l i n o i s , I n s t i t u t e of Zoning, Zoning i s P l a n n i n g , Conference 1969 Proceedings, U n i v e r s i t y of I l l i n o i s , Urbana -Champaign, 1969. U n i v e r s i t y of I l l i n o i s , I n s t i t u t e of Law and P l a n n i n g , The P r i v a t e 1968 P r o p e r t y and P u b l i c I n t e r e s t C o n f l i c t . Urbana-Champaign, I l l i n o i s , December~*1968. Urban Land I n s t i t u t e , Community B u i l d e r s ' C o u n c i l . The Community B u i l d e r s 1960 Handbook, Washington,, D.C: Urban Land I n s t i t u t e , I960. Weaver, Robert C., " N a t i o n a l Land P o l i c i e s - H i s t o r i c and Emergent". 1965 12 U.C.L.A. Law Review, No. 3, p.719, (March 1965). Welch, L o u i s , " A l t e r n a t i v e s t o Zoning: The Houston S t o r y " , i n P l a n n i n g  1967, p .2'57. Chicago: American S o c i e t y of Planning O f f i c i a l s , Williams,, Norman, J r . , "Development C o n t r o l s and P l a n n i n g C o n t r o l s : The 196U View From I96I+". 19 Rutgers Law Review, 86 ( F a l l 1961+). W i l l i a m s , Norman, J r . , " E x c l u s i o n a r y Land Use C o n t r o l s : The Case of N.E. .' 1971 New Jerse y " 22 Syracuse Law Review, No. 2, 1+75, (1971). W i l s o n , G a i t , "The Land Use Contract". Proceedings, 32nd. Conference 1971 of the M u n i c i p a l O f f i c e r s A s s o c i a t i o n , p. 1+8, 1971. W o l f f e , L e n a r d L . , New Zoning Landmarks i n Planned United-Developments. 1968 Tech. B u l l e t i n #62, Washington, D.C: Urban Land I n s t i t u t e , 1968. Wood, Robert F., "Zoning Amendments and Variances Subject t o C o n d i t i o n s " . 1961 12 Syracuse Law Review, p.230, 1961. Woodbury, Coleman, Urban Redevelopment Problems and P r a c t i c e s . Chicago: 1963 U n i v e r s i t y of Chicago P r e s s , 1953. Interviews and Correspondence: South? Donald. Chief Planning Officer, Department of Municipal Affairs. Governaent of British Columbia, Victoria. 158 APPENDIX A THE QUESTIONNAIRE On the basis of preliminary discussions with faculty advisors and others conversant with S. 702A, i t was decided that a questionnaire should be devised to collect information both on the use of the land use contract and to test i t s v a l i d i t y as a land use and development control. Several lower mainland planner with known familiarity with S. 702A were approached with the preliminary form, and their comments occasioned some amendments. The f i n a l questionnaire was forwarded during January and February of 1972 to a l l Regional Districts, and because early replies indicated that a larger survey sample might be .desirable, additional questionnaires were sent out to municipalities with suspected S. 702A experience. Replies were generally prompt, although a number of Regional Districts did require one or more reminder letters. A number of tele-phone interviews and eight personal interviews were used to support, amplify and substantiate data received. Additional correspondence was directed to the Ontario and British Columbia Departments of Municipal Affairs, the Ontario Law Reform Commission, the City of London Planning Department, the British Ministry of Housing and Local Government, and J. Gait Wilson, a Prince George Barrister and So l i c i t o r with extensive experience with S. 702A. Finally, personal interviews were held with the Registrar, New Westminister Land Registry, and the Director of 159 Regional Planning, B.C. Department of Municipal Affairs. The response rate was favourable: twenty-five of the twenty-seven regional d i s t r i c t s and thirteen of the fifteen municipalities replied by mail. An additional two regional districts and eleven munic-i p a l i t i e s were contacted by telephone or interviewed, for a grand total reply of fifty-one (5l). Twenty-nine of those replies were from staff planners and eight from consultant planners, while fourteen replies were received from administrators in communities lacking a planning staff. i t was anticipated that a number of the regional d i s t r i c t s would as yet have had no experience with S. 702A, and section C was there-fore included in the questionnaire to assay opinions on i t s prospective use or e l i c i t reasons why i t hadn't yet been employed. It.transpired that thirteen d i s t r i c t s and seventeen municipalities, for a total of thirt y (30), have had some experience with the land use contract proced-ure, and the remaining twenty-one were therefore directed to this latter portion of the information form. Their replies did not however prove substantially different from the others, and therefore did not merit separate analysis. Accompanying the questionnaire was a request for supporting material, such as draft land use contracts or authorizing by-laws. Eleven procedural by-laws or guidelines were received, together with fourteen individual or blank form land use contracts, and these were studied with reference to their content and form. Although the questionnaire was generally effective in accomplish-ing i t s purposes, and a number of planners replied at some length in 160 elaboration or amplification of their views, several deficiencies were noted in the course of analyzing returns: 1. A-request to indicate the actual number of contract applications received was not made sufficiently clear. However, the covering letter did request this information and t o t a l could, i n most cases, be inferred where not provided. 2. Only those without S. 702A experience and replying to the latter portion of the questionnaire, were polled on the degree of existing satisfaction with zoning procedures and methods, and this information would have had greater v a l i -dity i f obtained from a l l questionnaires returned. 3. Even although a number volunteered opinions, planners were not asked for their reaction to the early deletion of the community plan requirement of S. 702A. This information would have been a valuable addition. U. A typographic error i n Q.15, relating to the form of bonding required for a land use contract, prevented accurate replies to this section. However, few contracts had actually reached this point and the information could, in any event, be obtained directly from the contracts submitted. Other errors or misconceptions l i k e l y did occur in the questionnaire, but they did not appear to have had any substantial effect on the quantity or quality of the data received. 161 tm LAND ubK CONTRACT it, 7Q2A Municipal Act Information bheet P.l of k Please return to Brian J Porter bchool of Coamunitj and Regional Planning University of British Goluabia, Vancouver 8, British Columbia Please answer the following wherever applicableo lour Name and Position 2* Name of Municipality or. Regional District 3, Is there an official regional or d i s t r i c t ^ pl*i enacted for jour area? j.'es i No If '•no" is thera a comprehensive or over-a l l plan of development in preparation or generally observed? "ies_ Not set What proportion, i f any, of your Region or District is presently covered by a zoning by-law? H A S the old Development Permit proceduBSp previously authorised by bm 702k ever bees utilized in your district or region? Yes No _ If "Xes" please indicate generally the number of times and types of situations in which i t was employed** THE LAND BSE CONTRACT Has, the "land use contract" as authorised by the new i i . 702A of the Municipal Act been prepared, used, or drafted for use anywhere In your district or region? " ' (88 No If answer is "no" please disregard this section and proceed to part C. Ploase provide information on each contract, or If more than two land use contracts hava been prepareds used, or drafted for use, please provide information on the first and most recent con tracts only „ >Jho was the contracting author!^? a. Municipal Council t j b , Regional District Council 0 o Other(please tpecify . J o Please indicate the type of development covered by this contract, town-house, comprehensive development, condominium etc) Ac What, i f any* particular aspects o f these developments warranted use of the land use contract? Wh^  prepared the contract? If more than one aaswer please indicate approximate proportions eg. f, £ or 1/3. a. Planing Dept. or btaif i b. Consultant Planner(s) 1. on general contract with Reg: on or District i i . for purposes of land use contract onl^ _____ c. Legal Dept. - btaff i d. Consultant Iawyer(s) 1. on general contract with Region or District _____ 11. for purposes of land use contract only 6o Owner/Developer (or his lawyers, architects etc _____ f. Other Regional or I utile. Officer.; peciiy g. Other (Please specify) 162 ifi LAW Vim, CONTRACT 5o Pleas© indicate the sfc*ging* either with specific or approximate dates where appropriate^ and/or by indicating the approximate time in months for the completion of each phase« (Note « I f the contract was abandoned or the process defeated at any stags please indicate at the appropriate place with *) c t« 0 c a o Time #1 Date tin t— a« Owner/developer informally submits development plans to _ d * B t a r , * c f r °f regional authorities* b 0 Consideration by s t a f f or consultants c» Owner applies for declaration of"development area" d. Declaration of "Development Area" e. Application for "Land TTse Contract" Preliminary drafting and negotiation or contract" g. F i r s t , second and third readings by Council oiHSy^avT authorizing the land use contract or resolution for the public hearing on proposed land use Contract* h* Public Hearing held 1. Final reading of b/~law?autn8rSlln,g' entry into land use contract. j« Contract executed bj both parties #1 #n k« Contract deposited with L.R.O. for registration 1. Registration completed 6, Isv th<B building permit been issued? See Dates • Ho .Approximate!* how raany people attended the publ ic hearing? 8o Compared to attendance at normal i-ubllc hearings, was this i . average . i i * below average . i i i * above average , Did any significant alterations result from the public hearing? YoE < NO I f "jes" please indie te generally the nature of these changes« 9c a. What was the general mood of the meeting relating to the use of the contract? Agreement „ Neutral or indeterminate Opposition b. If "opposition", compared to e normal resoning public hearing, was it> ; ive average i i . below average l i i 0 above average c. Bow would you beet describe the basis of this pppoaltion: i . aesthetic grounds ii» social grounds i i i . physical grounds iv» "axe to grind 1* Ho Please indicate any general comments yc$ nay have on the applicability of the public hearing procedure to the land use contract — or any other general comments* a v FORMS AND GENERAL COKKJiNTS '«Meh one or more of the following wore motivating l&me tor the use (indicate with \/ ) and the form ( Indicate with >< ) of the "land use contract"? 0 A The Municipal Act, as amended in 1971 , b 0 The Department of Kunicipal Affairs, Victoria Oo Discussions, forma or drafts presented at conferences or meetings: eg« Municipal Offiwva Association Union of British Columbia Municipalities Regional Dis t r i c t Meetings Law or Planning Conferences Others (please specify) _________ 13o Has there been any overt encouragement from the Depto of Municipal Affairs, or any o f f i c i a l therefoea, to use the land use contract? 2es_ No 14., Compared to the standard rezoning procedure, i f any, how has the land use contract and i t s procedure been regarded by the owner/developer, and/or his lawyers, architects or planners? 10 similarly received 1 1 more favourably received _______ H i less favourably received Comments? 16 Have any technical problems been raised by the Land Registry Office or others concerning the ^restrictive covenant aepect of a l l or any portion of the land use contract? les No If "Yes*, please specify. 15» Please indicate which of the following are generally Included in the land ute contractus) as required perfoimanc© by ti owner/developer, and which of those i t arc? are covered by performance bonds or cthsx forms of security (*/</) a. on-site public works and u t i l i t i e s , ownership of which to remain with municipality b 0 o f f - s i t e publils works and u t i l i t i e s , ownership of which to remain with municipality , c. landscaping and scroe^ng for purposes of general public ., d. generally, the whole project ^ If any of the above are not included in the land use contract but controlled by other means or methods please describe u '7* Please Indicate the neture of the plans or drawings which must accompany the application for land use contract and/or must be submitted before f i n a l "execution n (eg 0 f u l l scale arch* and engineering plans* exterior design p s i t i n g and colour only et 18o Please provide any general remarks or comments you may have concerning the theory and/or procedure of the land use veontract and development area which may not have been canvassed thusfar» Thank y « * i fee your cooperation I6h Infers®tion feheet P,4 art G - To be completed onlj where no land use contract has yet been prepared*. i« Ii 1 nc,nland use contract" has yet been prepared* u»ed or fir&fted for use in year region or d i s t r i c t which of the? following reasons, i f anyf best apply? a, lack of development projects or areas s u i t a b l e for application of land use contrast ,„•,„-.,-,.,,.n-.^ w,,,.. b. Present satisfaction with zoning and development procedures c« lack of familiarity with practical or procedural aspects of the lend use contract and/or uncertainty as to potential effects ,^ d. Other (please specify) ^ 2a Assuming that none of the above limitations would apply, i n what instances would you contemplate the us© of a "land use contract" in yenr d i s t r i c t or region? 3u Pie se provide any general comments you may havegeneraliy on soning f 'development control and the land use contract* -thank you for your coopers.tion and asi.it-tj>n«ec-

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