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The zoning board of appeal : a study of its role in the implementation of municipal planning policy in… Dhillon, Jagdev Singh 1966

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THE ZONING BOARD OF APPEAL: A STUDY OF ITS ROLE IN THE IMPLEMENTATION OF MUNICIPAL PLANNING POLICY IN BRITISH COLUMBIA by JAGDEV SINGH DHILLON B.Sc.,LL.B.,University of Delhi (India),1956 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF SCIENCE i n the Div i s i o n of COMMUNITY AND REGIONAL PLANNING We accept t h i s thesis as conforming to the required standard. THE UNIVERSITY OF BRITISH COLUMBIA A p r i l , 1966 v i I n p r e s e n t i n g t h i s t h e s i s i n p a r t i a l f u l f i l m e n t o f t h e r e q u i r e m e n t s f o r a n a d v a n c e d d e g r e e a t t h e U n i v e r s i t y o f B r i t i s h C o l u m b i a , I a g r e e t h a t t h e L i b r a r y s h a l l m a k e i t f r e e l y a v a i l a b l e f o r r e f e r e n c e a n d s t u d y . I f u r t h e r a g r e e t h a t p e r m i s s i o n f o r e x -t e n s i v e c o p y i n g o f t h i s t h e s i s f o r s c h o l a r l y p u r p o s e s m a y b e g r a n t e d b y t h e H e a d o f m y D e p a r t m e n t o r b y h i s r e p r e s e n t a t i v e s . I t i s u n d e r s t o o d t h a t c o p y i n g o r p u b l i c a t i o n o f t h i s t h e s i s f o r f i n a n -c i a l g a i n . s h a l l n o t b e a l l o w e d w i t h o u t m y w r i t t e n p e r m i s s i o n . D e p a r t m e n t o f Community and Regional Planning T h e U n i v e r s i t y o f B r i t i s h C o l u m b i a V a n c o u v e r 8, C a n a d a D a t e A p r i l , 1966.  i i ABSTRACT Zoning i s a municipal land use control adopted to protect the public health, safety, general welfare and to provide the economic, s o c i a l and aesthetic advantages r e s u l t i n g from the orderly planned use of available land» The concept of zoning has changed from a simple r e s t r i c t i o n to c e r t a i n uses of land, to a key technique i n the imple-mentation of municipal planning poli c y . L o g i c a l l y the progress of a municipal plan would depend on how s t r i c t l y i t s zoning by-law and other regulations are enforced; however, in some instances the s t r i c t enforcement of these regulations may cause undue or unnecessary hardship to the owner of a property. Just as^the Chancellor's Courts arose i n England i n order to provide i n d i v i d u a l j u s t i c e i n cases where the harsh and universal mandates of the common law caused obvious hardship, the Zoning Board of Appeal has been created i n order to provide f l e x i b i l i t y i n the administration of the zoning by-law, where i t s ' ^ s t r i c t enforcement would cause undue or unnecessary hardship. Zoning enabling l e g i s l a t i o n provides some standards which are intended to guide a Zoning Board of Appeal i n i t s operation; however the statutory standards s p e c i f i e d under the enabling l e g i s l a t i o n for determination of "undue or unnecessary hardship" and the directions for issuance of the "Notice of Hearing" are vague. The enabling l e g i s l a t i o n does not indicate the d e t a i l s to be included i n the "Notice of Hearing" or the d e t a i l s of information required i n a "Notice of Appeal". In addition to the de f i c i e n c i e s of the l e g i s l a t i o n there generally exists an inadequate r e l a t i o n s h i p between a Zoning Board of Appeal and i t s respective municipal planning department. The members of the Board are not supplied with adequate information about the zoning and planning objectives of the municipality. They do not f e e l concerned about such information and tend to confine them-selves to the zoning by-law and to make decisions without f u l l understand of the planning context; as such, their decisions tend to be inconsistent with the zoning and planning objectives of the municipality. The hypothesis i s advanced that "a po s i t i v e statement of zoning objectives and planning p r i n c i p l e s together with a uniform set of procedures to be followed by the Zoning Board of Appeal i s necessary for e f f e c t i v e implementation of municipal planning p o l i c y " . Following a review of the t r a d i t i o n a l and contemporary concepts of zoning and planning, a Case Study i s conducted to explore reasons for inconsistencies i n the decisions of the Zoning Board of Appeal. For the Case Study three Zoning Boards of Appeal i n the Vancouver Metropolitan Area of B r i t i s h Columbia are selected. The conclusions drawn from the Case Study together with observations based on a review of the contemporary experience provide evidence that members of the Zoning Boards of Appeal are not provided with a po s i t i v e statement of zoning objectives and planning p r i n c i p l e s . Because of ambiguities i n the enabling l e g i s l a t i o n and lack of d e f i n i t i o n of standards and format, every Zoning Board of Appeal tends to follow inconsistent procedure i n i t s operation. It i s also observed that the members of the Zoning Boards of Appeal are not appraised of the poten t i a l impact of their decisions, a s i t u a t i o n which can work both ways, that i s , i t may help i n the implementation of municipal planning p o l i c y or a l t e r n a t i v e l y i t may cause obstructions by granting incompatible relaxations. Investigation of the hypothesis has provided a needed focus in reviewing the pos i t i o n of the Zoning Board of Appeal i n the implementation of municipal planning poli c y . It i s concluded that the hypothesis appears to be a reasonable and p r a c t i c a l solution for making the Zoning Board of Appeal an e f f e c t i v e t o o l i n the implementation of municipal planning p o l i c y . Certain f e a s i b l e l e g i s l a t i v e and administrative improvements are recommended and a method of implementation V of these recommendations at the p r o v i n c i a l and municipal levels of government i s suggested. TABLE OF CONTENTS PAGE TITLE i ABSTRACT i i LIBRARY USE PERMISSION FORM v i TABLE OF-.CONTENTS v i i LIST OF TABLES x i LIST OF ILLUSTRATIONS x i i i ACKNOWLEDGEMENTS . . . x i v CHAPTER I. THE ROLE OF ZONING BOARDS OF APPEAL IN THE IMPLEMENTATION OF MUNICIPAL PLANNING POLICIES 1 Usefulness of the Zoning Boards of Appeal. . . 2 Hypothesis of the Thesis 4 Objectives of the Study 5 Relationship of the Functions of the Zoning Boards of Appeal to Community and Regional Planning 6 Assumptions 8 Defi n i t i o n s of the Terms Used 9 Limitations and Scope of the Thesis 11 Sources of Data 12 Organization of the Thesis 14 Summary 15 Footnotes 17 v i i i CHAPTER PAGE II. ZONING AND PLANNING IN PERSPECTIVE 19 The Objectives of Zoning 19 Early History of Zoning 19 Theory, and Purpose of Zoning 24 The Current Concept of Zoning 28 The Objectives of Community Planning 31 The Goals of Community Planning 33 The Development Plan 35 Standards 37 Plan Implementation 39 Summary 42 Footnotes 44 I I I . A REVIEW OF THE OPERATION OF THE ZONING BOARDS OF APPEAL 49 Constitutional Authorization 50 Operation of the Zoning By-law 50 Structure of the Zoning By-law 53 Draftsmanship and Interpretation . 57 Operation of the Zoning Board of Appeal . . . . 60 The Ambit of J u r i s d i c t i o n 62 The Question of Hardship 65 P r i n c i p l e s of J u d i c i a l Review as Applicable to the Zoning Board of Appeal 66 Implications of the Decisions of the Zoning Board of Appeal on the Formulation and Implementation of Planning P o l i c y 70 ix CHAPTER PAGE Summary 75 Footnotes . . . . . . . . . . . . 77 IV. ADMINISTRATION OF THE ZONING BOARD OF APPEAL: A CASE STUDY OF SELECTED MUNICIPALITIES IN THE VANCOUVER METROPOLITAN AREA OF B.C. , . . .. 82 The Objectives and Method of Investigation . . 83 The Operation of the Zoning Board of Appeal. . 87 Procedure Followed by- the Selected -Zoning Boards of Appeal . •. *. . . . . - 90 Results of an Attitude Survey of Members • • of the Zoning Boards of Appeal and Muni-c i p a l O f f i c i a l s =, . v. . . 98 Interviews with the Members of the S e l -ected Zoning .Boards of Appeal. ... ,. . 98 Interviews with Municipal O f f i c i a l s 99 Observations and Conclusions .:. . 100 Summary 125 Footnotes ......> 127 V. RECOMMENDATIONS FOR IMPROVEMENT IN THE OPERATION OF THE ZONING BOARD OF APPEAL. . ,. . 128 Basis of Recommendations 128 Review of Observations from the Case Study . 129 Review of Contemporary Experience. .• . . . . 134 Alternative Solutions 137 Recommendations 143 Implementation 149 X CHAPTER PAGE Summary ,. . ... . ,. .... 156 Footnotes , 157 VI. EPILOGUE 160 Summary Review of the Thesis and the Study Method 1 . . . . . . . 160 Evaluation of the Hypothesis 164 Directions for Further Research 167 Summary ; . . 168 BIBLIOGRAPHY 170 APPENDICES 176 I. Objectives of the City-Wide Use Plan: an Extract from the Master Plan for San Francisco 176 II. Suggested P r i n c i p l e s to Assist Committees of Adjustment i n the Province of Ontario . . 179 III. Specimen of: The Covering Letter and Survey Question-naire used i n the Case Study 186 The Prescribed Standards for Grant of Variations 191 The Authorized Variations 192 IV. Specimen of Notice of Appeal 194 V. Specimen of Notice of Hearing and Notice of Appeal as Recommended by the American Society of Planning O f f i c i a l s 195 x i LIST OF TABLES PAGE Membership.and Enabling L e g i s l a t i o n of.the Selected Zoning Boards of Appeal i n the Vancouver Metropolitan Area of B.C., . . . . 88 Composition of Membership by Length of Membership and Profession of the Members of the Selected Zoning Boards of Appeal i n the Vancouver Metropolitan Area of B.C., . . 89 Character i s t i c s of Notice of Hearing Issued by the Selected Zoning Boards of Appeal i n the Vancouver Metropolitan Area of B.C., . . 91/ Issuing Authority for the Notice of Hearing in the Selected Zoning Boards of Appeal i n the Vancouver Metropolitan Area of B.G., . . 93 Number of Appeals Received and Type of Decisions made by the Three Selected Zoning Boards of Appeal i n the Vancouver Metropolitan Area of B.C. , 94 Types of Land Uses involved i n Appeals made to the Three Selected Zoning Boards of Appeal i n the Vancouver Metropolitan Area of B.C., . . 95 Grounds of Appeals made to the Selected Zoning Boards of Appeal i n the Vancouver Metropolitan Area of B.C. , 96 x i i TABLE PAGE VIII. Types of Relaxations sought i n Appeals made to the Three.Selected Zoning Boards of Appeal i n the Vancouver Metropolitan Area of B.C 97 Analysis of Questionnaire Responses made by the Members of the Selected Zoning Boards of Appeal i n the Vancouver Metropolitan Area of B.C 114 x i i i LIST OF ILLUSTRATIONS FIGURE - PAGE I. Location Map of the Case Study Area 13 DIAGRAM I. Minor Variance, a building located in error too close to lot boundaries 152 II. Minor Variance, proposed enlargement which w i l l encroach into a required yard 152 II I . Minor Variance, reduction i n required yard standards because of shape of lot 153 IV. Minor Variance, reduction i n lot size 153 V. Minor Variance, reduction in required yard because of peculiar feature i n l o t 154 VI. Minor Variance, reduction i n parking space requirements 154 VII. Minor Variance, extension or enlargement of non-conforming use 155 VIII. Extension of a permitted use into a zone where such use i s not permitted 155 ACKNOWLEDGEMENTS I am greatly indebted to many people who have, through their assistance and advice made th i s study possible. I would l i k e to express my thanks to Dr. H. Peter Oberlander, Director of the Di v i s i o n of Community & Regional Planning, for his continued encouragement, and to Dr. Kevin J. Cross, Assistant Professor of-Community & Regional Planning, for his invaluable guidance and supervision. I would also l i k e to express my appreciation to: Dr. Leonard C. Marsh, Professor i n the Faculty of Education; Mr. R.W. C o l l i e r , Lecturer i n the Department of Extension; and to Mr. W.T. Lane, Municipal S o l i c i t o r , Corporation of the Township of Richmond, for their valuable guidance, c r i t i c i s m and advice. In addition, I would l i k e to acknowledge the cooperation and help extended by the various Zoning Boards.of Appeal i n the Vancouver Metropolitan Area of B r i t i s h Columbia and Municipal Planning Departments, without whom a coherent and comprehensive study would not have been possible. I am thankful to the University of B r i t i s h Columbia for the award of two Graduate Student Fellowships and a Bursary. F i n a l l y I would l i k e to thank my s i s t e r , Miss Premjit Dhillon, who has so ably typed t h i s thesis and has endured so many inconveniences on my behalf. CHAPTER I THE ROLE OF ZONING BOARDS OF APPEAL IN THE IMPLEMENTATION OF MUNICIPAL PLANNING POLICIES The growth of communities into large c i t i e s has necessitated the adoption of detailed and complex l e g i s l a -t i o n i n planning the use of land. The dangers of disease, crime, delinquency, f i r e , and injury from t r a f f i c , are ra p i d l y m u l t i p l i e d as the housing, business, and industry of large c i t i e s absorb the open space which formerly insulated people against these dangers. Recognizing these problems created by the concentration of people, there has evolved the concept that people have the right to protect themselves against these and other similar hazards by long-range plan-ning and by developing techniques for implementing these plans i n order to obtain an environment conducive to urban l i v i n g . Before the adoption of modern zoning laws, at the beginning of the twentieth century, the owners of property were r e s t r i c t e d i n the use of their property only by pro h i b i t i o n of land uses recognized by the common law or statute as detrimental to the ri g h t s of the public. Those interested in the encouragement of planning, saw zoning as a le g a l t o o l for effectuating a r a t i o n a l land use pattern for a community.1 The courts concomitantly have b u i l t up a 2 body of case law r e c o g n i z i n g p l a n n i n g as a l e g a l b a s i s f o r modern zoning, however, "the g e n e r a l p r i n c i p l e s of law with r e s p e c t to zoning by-laws are that they must be reasonable o and not a r b i t r a r y or d i s c r i m i n a t o r y . " I t has been the g e n e r a l consensus that w hile the by-laws sh o u l d have primary c o n s i d e r a t i o n f o r the " h e a l t h , s a f e t y , morals, comforts, conveniences and w e l f a r e of the community" these s h o u l d not cause unnecessary hardship to any i n d i v i d u a l . The Zoning Boards of Appeal have emerged to p r o t e c t the i n t e r e s t s and r i g h t s of the i n d i v i d u a l . I. USEFULNESS OF THE ZONING BOARDS OF APPEAL Zoning may be d e f i n e d simply as a l e g a l a d m i n i s t r a t i v e device whereby a m u n i c i p a l i t y d i v i d e s i t s t e r r i t o r y i n t o a number of d i s t r i c t s and a p p l i e s to each d i s t r i c t a number of r e g u l a t i o n s to c o n t r o l the use of land, the height and bulk of b u i l d i n g s , and the l a n d coverage. The f i r s t comprehensive zoning p l a n , embodying these three b a s i c types of c o n t r o l s , 4 was adopted by New York C i t y i n 1916. Since then the p r a c -t i c e of zoning has become e s t a b l i s h e d as a normal m u n i c i p a l f u n c t i o n . I t i s employed as a key technique i n the implement-a t i o n of m u n i c i p a l p l a n n i n g p o l i c i e s . L o g i c a l l y achievement of the goals of a m u n i c i p a l p l a n depend d i r e c t l y on how s t r i c t l y the m u n i c i p a l i t y ' s zoning 3 by-law or other techniques of implementation are. enforced. The increasing complexity of modern l i v i n g and the desire to r a i s e standards of development i n North America have r e -sulted i n the use of zoning by-laws which have become so complex that i t i s p r a c t i c a l l y impossible to draft zoning by-laws which cover a l l ramifications of planning concepts and s t i l l avoid unnecessary hardship i n exceptional cases. Although the by-laws are intended for the public good i t i s generally accepted that no i n d i v i d u a l should be made to suffer unnecessary hardship for the public good. To safeguard the interests of every i n d i v i d u a l from unnecessary hardship the American courts have held that when a c i t y adopts a zoning ordinance i t must also establish a Zoning Board of Appeal to carry out the s p i r i t and intent of the law under which i t creates such zoning ordinance. In Canada, the provinces have included t h i s mandatory requirement i n the relevant enabling l e g i s l a t i o n under which necessary power i s delegated to the municipal councils to adopt a zoning by-law. a The B r i t i s h Columbia Municipal Act as well as the 7 Vancouver Charter, provides for the establishment of Zoning Boards of Appeal with the inherent intention that "the impo-s i t i o n of manifest i n j u s t i c e or unnecessary hardship be pre-o vented." These Boards function as q u a s i - j u d i c i a l bodies and hear and determine appeals a r i s i n g out of interpretation of the zoning by-laws or any portion thereof. They also deal with matters concerning r e s t r i c t i o n s on structures c o n s t i -tuting non-conforming uses, and r e s t r i c t i o n s on the repair of damaged buildings having non-conforming uses. Neither the Municipal Act nor the Vancouver Charter explains the concepts of zoning or planning underlying the municipal planning p o l i c i e s , also they do not provide any guide to interpretation of the term "unnecessary hardship" upon which most of the relaxations granted by the Zoning Boards of Appeal are j u s t i f i e d . The Boards' members are generally neither conversant with the planning process,,nor p r o f i c i e n t i n the interpretation of laws. The r e s u l t i s that decisions are made without f u l l understanding of the context, and as such tend to be inconsistent with municipal zoning and planning objectives as well as rules of natural j u s t i c e and j u d i c i a l review. In t h i s respect the implement-ation of municipal planning p o l i c i e s i s to a great extent dependent on the proper administration of the Zoning Boards of Appeal. The Hypothesis. Every s c i e n t i f i c enquiry requires the formulation of a hypothesis (or hypotheses) which defines the scope and frame of reference of the study. Thus defining and testing a hypothesis ensures the o b j e c t i v i t y of the study. Subsequent to the formulation of a hypothesis, the objective i s to test 5 i t , normally empirically, with the ultimate purpose of estab-l i s h i n g i t s v a l i d i t y . The hypothesis of t h i s thesis i s that "a po s i t i v e statement of zoning objectives and planning p r i n c i p l e s together with a uniform set of procedures to be followed by the Zoning Board of Appeal i s necessary for e f f e c t i v e implementation of municipal planning p o l i c y . " I I . OBJECTIVES OF THE STUDY The primary objective of t h i s thesis i s to present not only a c r i t i c a l review of contemporary concepts.of zoning and planning and their administration, but also to present an analysis of what appear to be dominant features of the Zoning Boards of Appeal i n the Vancouver Metropolitan Area. The intention i s not only to determine the pot e n t i a l usefulness of the Zoning Boards of Appeal as a tool for dispensing j u s t i c e i n cases a r i s i n g because of undue or unnecessary hardship caused to some individuals by the enforcement of zoning by-law or subdivision regulation of municipal planning p o l i c y . One method of determining t h i s p o t e n t i a l usefulness i s to u t i l i z e a case study. This should i d e n t i f y the constitution and j u r i s d i c t i o n of the Zoning Boards of Appeal; measure their standards of j u d i c i a l review; determine consistency with accepted zoning concepts and the municipal planning p o l i c i e s ; and i d e n t i f y the causes of inconsistencies i n administration 6 of Zoning Boards of Appeal. I t i s suggested that i t i s o n l y by such an a n a l y s i s that one can a p p r e c i a t e the u s e f u l n e s s of the Zoning Boards of Appeal and develop recommendations to make these Boards f u n c t i o n more e f f i c i e n t l y i n g r a n t i n g r e l a x a t i o n s which are complementary to m u n i c i p a l p l a n n i n g p o l i c i e s , and which thus i n d i r e c t l y help i n the implementation of m u n i c i p a l p l a n n i n g p o l i c i e s . I I I . RELATIONSHIP OF THE FUNCTIONS OF THE ZONING BOARDS OF APPEAL TO COMMUNITY & REGIONAL PLANNING Sound community p l a n n i n g i n v o l v e s the c o o r d i n a t i o n of m a n i f o l d a c t i v i t i e s and the o r d e r l y arrangement of space f o r 9 t h e i r proper f u n c t i o n i n g . I t i n v o l v e s the adjustment of these a c t i v i t i e s f o r b e t t e r s e r v i c e to the community as a whole, as w e l l as f o r the h i g h e s t p o s s i b l e s a t i s f a c t i o n of the needs of the p r i v a t e i n d i v i d u a l i n our f r e e s o c i e t y . P l a n n i n g i s the process by which an attempt i s made to pro-v i d e f o r present and f u t u r e s o c i a l and economic needs i n a more o r d e r l y f a s h i o n and i n t h i s r e s p e c t i t i s much broader i n s c a l e than the c o n v e n t i o n a l i d e a of c o r r e c t i n g e r r o r s through the use of p o l i c e power. Community P l a n n i n g , i n the modern sense, i n v o l v e s something more than a mere attempt to a v o i d the e v i l of unplanned, haphazard development of the community. I t i s a p o s i t i v e guide both to community renewal and to new growth and expansion. 7 The governmental administration unit through which community planning occurs i s the municipal council which i s 10 delegated the authority to l e g i s l a t e on l o c a l matters. It i s through the use of t h i s authority to promote the general welfare of the community as well as the public health and safety that use of land i s regulated through zoning, subdivi-sion control and other planning measures. Zoning i s perhaps the most important control device and has two primary functions: to control the use of land and buildings; and to regulate s i z e and shape of buildings i n r e l a t i o n to each other. In devising and applying a zoning by-law a planner i s confronted with several problems. Of these the drafting of a zoning by-law i s most c r i t i c a l . It must deal with a l l land uses and control of improvements i n a manner which w i l l avoid d i f f i c u l t i e s of inequitable enforcement and yet aid i n the implementation of municipal land use control and planning p o l i c i e s for the public good. It i s generally accepted that no -individual should suffer unnecessary hardship for the public good.1''' To ensure the protection of the individual's r i g h t s one has the right to appeal to the Zoning Board of Appeal for relaxation from the s t r i c t enforcement of the zoning by-law. These Boards have li m i t e d power and j u r i s d i c -t i o n , and the majority of their members hardly possess the t r a i n i n g or experience needed to r e l a t e each request to the highly technical c r i t e r i a for judging variations i n r e l a t i o n 8 to the over a l l requirements of the municipal plan."*-'2 One va r i a t i o n tends to establish precedent for a well-grounded request for subsequent relaxation. This leads to the under-13 mining of the effectiveness of the zoning by-law. These circumstances are aggravated both by ambiguities i n the zoning by-law and"by the lack of proper instructions to the members of the Zoning Boards of Appeal. For successful implementation of municipal plans the community planner depends on e f f e c t i v e enforcement of accepted regulations through the zoning by-law. It i s suspected that the Zoning Boards of Appeal, by acting a r b i t r a r i l y or without any knowledge of the municipal planning policy, can i n some cases hamper the implementation of municipal planning p o l i -c i e s . These Boards can on the other hand help i n the imple-mentation of municipal planning p o l i c i e s i f they make decisions with due consideration to the consequences of the relaxations granted by them. It i s therefore considered that a study of the r e l a t i v e effectiveness of the Zoning Boards of Appeal would be of great si g n i f i c a n c e to community planning. Imple-mentation of municipal planning p o l i c i e s i s dependent on e f f i c i e n t enforcement of the zoning by-law, which i t s e l f i s dependent on action of the Zoning Boards of Appeal. IV. ASSUMPTIONS It i s assumed that every Zoning Board of Appeal operating under uniform enabling l e g i s l a t i o n functions under similar circumstances, or i n other words, experiences similar advantages and disadvantages i n i t s operation. Since a Zon-ing Board of Appeal does not make written decisions to . indicate the reasons or basis for i t s decisions, i t i s assumed that the basis of these decisions or the c r i t e r i a used i n reaching these decisions i s r e f l e c t e d i n the basic attitudes of the members of the Zoning Boards of Appeal, that i s , i n their conception of the purpose of the Board, and i n their expression of the way i n which they f e e l t h i s purpose should be accomplished. V. DEFINITIONS In investigating the stated hypothesis, certain s p e c i f i c meanings have been assigned to pa r t i c u l a r terms. Although there may be some objection to the use of the word "uniform" r e l a t e d to procedure, because of unusual l o c a l problems requiring unique solutions, nevertheless the concept of a "uniform set of procedures" i s used here to mean the development of a uniform set of c r i t e r i a which may be used to evaluate each i n d i v i d u a l situation i n a consistent manner. The term "unnecessary hardship" does not lend i t s e l f to a precise d e f i n i t i o n , and has not been s a t i s f a c t o r i l y documented i n any reported decisions of a North American court. However the following condensation from numerous court deci-10 sions provides a reasonable explanation of thi s term: The application of the unnecessary hardship doctrine i s not governed s o l e l y by the siz e of the area or p a r t i c u l a r piece of property upon which unnecessary hardship i s imposed. No single factor determines what constitutes unnecessary hardship, but a l l relevant factors, when taken together, must indicate that the property affected cannot reasonably be put to a conforming use because of the l i m i t a t i o n imposed upon i t by reason of the c l a s s i f i c a t i o n i n which i t i s placed i n terms of the zoning by-law.14 In t h i s thesis a " d i s t r i c t municipality" or " d i s t r i c t " means any area incorporated or re-incorporated as a "township or d i s t r i c t municipality" under the Municipal Act of the 15 Province of B r i t i s h Columbia, and a " c i t y municipality" or " c i t y " means a c i t y municipality incorporated or re-incorpo-rated under the Municipal Act. However the City of Vancouver does not f a l l into t h i s d e f i n i t i o n because i t i s 17 incorporated under a sp e c i a l charter. Here "enabling l e g i s l a t i o n " means any l e g i s l a t i o n enabling "persons or corporations to do what they cannot do 18 otherwise." The word "ambit" means "the l i m i t s or circum-19 ferences" of j u r i s d i c t i o n and " j u r i s d i c t i o n " means an authority by which j u d i c i a l or q u a s i - j u d i c i a l bodies take 20 cognizance of, and decide cases. " Q u a s i - j u d i c i a l " i s a term applied to the action or d i s c r e t i o n of public administra-t i v e o f f i c e r s , who are required to investigate f a c t s , and draw conclusions from them, as a basis for their o f f i c i a l action, 21 and to exercise d i s c r e t i o n of a j u d i c i a l nature. "Ultra 11 v i r e s " acts are those acts which are beyond the scope of the powers of a corporation, as defined by i t s charter or act of 22 incorporation. This term has a broad application and includes not only acts which are prohibited by the enabling l e g i s l a t i o n , but acts which are i n excess of powers granted and not prohibited. It i s generally applied either when a corporation has no power whatever to do an act, or when the corporation has the power but exercises i t i r r e g u l a r l y . - " J u d i c i a l d i s c r e t i o n " means discretionary action of a j u d i c i a l body, where di s c r e t i o n i s bounded by the rules and p r i n c i p l e s of law and i s not a r b i t r a r y , capricious, or unres-trained. It i s not the indulgence of j u d i c i a l fancy, but the exercise of j u d i c i a l judgment, based on facts and guided by 23 Law. VI. LIMITATIONS & SCOPE OF THE THESIS Due to the l i m i t e d time available for the study, the Case Study has been r e s t r i c t e d to an investigation of the functioning of three Zoning Boards of Appeal i n the Vancouver Metropolitan Area of B r i t i s h Columbia. These Boards repre-sent the Municipal Corporation of the City of Vancouver, the D i s t r i c t of Richmond, and the City of North Vancouver. Although the investigation i s l i m i t e d to the areal j u r i s d i c -t i o n of these three Boards, i t i s suggested that the scope of the thesis i s not unduly narrowed by t h i s l i m i t a t i o n . In spite of t h i s areal l i m i t a t i o n , these three Boards represent 12 a s t r a t i f i e d sample encompassing most of the probable m u n i c i p a l a d m i n i s t r a t i v e areas to j u s t i f y r e a c h i n g necessary g e n e r a l c o n c l u s i o n s . These three Boards r e p r e s e n t : 1. a r e l a t i v e l y l a r g e c e n t r a l c i t y i n a m e t r o p o l i t a n area with a l a r g e p l a n n i n g department; 2. a small, township with a s m a l l but w e l l o r g a n i z e d p l a n n i n g department; 3. a suburban c i t y which does not have a p l a n n i n g department, but which i s f a c i n g a boom i n c o n s t r u c t i o n and s u b d i v i s i o n development. These three areas are i n d i c a t e d on the l o c a t i o n map, F i g u r e 1 on page 13. VII. SOURCES OF DATA The e m p i r i c a l data employed i n t h i s study are gathered from v a r i o u s sources. Most of the i n f o r m a t i o n was c o l l e c t e d through attendance at the Zoning Boards of Appeal he a r i n g s ; e x t e n s i v e notes were a l s o gathered through meetings with the Boards. The minutes and f i l e s of the Zoning Boards of Appeal were used to gather i n f o r m a t i o n r e g a r d i n g the number and c h a r a c t e r i s t i c s of appeals made to the Boards. Oth.er i n f o r m a t i o n was o b t a i n e d through conducting e x t e n s i v e i n t e r v i e w s w i t h : 1. members of the three Zoning Boards of Appeal; FIGURE I 14 2 . p l a n n i n g o f f i c i a l s i n the M u n i c i p a l C o r p o r a t i o n s of the C i t y of Vancouver and the D i s t r i c t of Richmond, and with the m u n i c i p a l engineer i n the case of the C i t y of North Vancouver, which does not have a p l a n n i n g department; 3. Some persons who appeared at the h e a r i n g s to v o i c e e i t h e r approval o f , or o b j e c t i o n to, the appeals. I n d i v i d u a l o p i n i o n s of the members of the Zoning Boards of Appeal were o b t a i n e d with the help of a m a i l e d q u e s t i o n -n a i r e . F i n a l l y , data were o b t a i n e d from o f f i c i a l f i l e s , p u b l i c a t i o n s and l e g a l documents of the v a r i o u s m u n i c i p a l departments and through p e r s o n a l i n s p e c t i o n of s e l e c t e d s i t e s . V I I I . ORGANIZATION OF THE THESIS The c h a p t e r s that f o l l o w have been designed to support an i n v e s t i g a t i o n f o r t e s t i n g the h y p o t h e s i s s t a t e d i n t h i s i n t r o d u c t o r y chapter. A survey of the t r a d i t i o n a l and contemporary concepts of zoning and p l a n n i n g i s p r e s e n t e d i n Chapter I I . The o r i g i n a l concept of zoning i s reviewed i n P a r t One, along with the theory and purpose of zoning, and the changed concepts which are being r e v i s e d i n the l i g h t of changing circumstances. i The o b j e c t i v e s of p l a n n i n g are d e f i n e d i n P a r t Two, with / emphasis on p l a n n i n g g o a l s , development standards and plan' 15 i m p l e m e n t a t i o n . The f u n c t i o n s o f t h e Z o n i n g B o a r d s o f A p p e a l as r e g a r d s t h e i r c o n s t i t u t i o n a l a u t h o r i z a t i o n , t h e i r o p e r a -t i o n , t h e i r ambit o f j u r i s d i c t i o n , and t h e i n f l u e n c e o f t h e i r d e c i s i o n s on p l a n n i n g p o l i c i e s , a r e e x p l o r e d i n C h a p t e r I II. T h i s t h e o r e t i c a l a p p r o a c h i s t e s t e d i n C h a p t e r IV t h r o u g h d a t a and. i n f o r m a t i o n g a t h e r e d i n t h e Case S t u d y , t h e emphasis o f i n v e s t i g a t i o n b e i n g on t h e c o n s t i t u t i o n o f t h e Z o n i n g B o a r d s o f A p p e a l , t y p e s o f c a s e s h e a r d , and r e l a x a t i o n s g r a n t e d , and p l a n n i n g p r i n c i p l e s as r e f l e c t e d i n t h e s e d e c i -s i o n s . The s t a n d a r d s o f j u d i c i a l r e v i e w and t h e c o n s i s t e n c y o f t h e d e c i s i o n s o f t h e Z o n i n g B o a r d s o f A p p e a l i n r e l a t i o n t o p l a n n i n g o b j e c t i v e s and p o l i c i e s a r e e v a l u a t e d . Recommen-d a t i o n s as t o t h e c o n s t i t u t i o n , o p e r a t i o n and ambit o f j u r i s d i c t i o n o f t h e Z o n i n g B o a r d s o f A p p e a l a r e made i n C h a p t e r V, t h e s e r e c o m m e n d a t i o n s a r e b a s e d on t h e o b s e r v a -t i o n s f r o m t h e Case S t u d y and knowledge g a i n e d f r o m contem-p o r a r y e x p e r i e n c e i n o t h e r p a r t s o f Canada and t h e U n i t e d S t a t e s . A summary o f t h e s t u d y and an e v a l u a t i o n o f t h e v a l i d i t y o f t h e h y p o t h e s i s a r e p r o v i d e d i n t h e c o n c l u d i n g c h a p t e r a l o n g w i t h d i r e c t i o n s f o r f u r t h e r r e s e a r c h . IX. SUMMARY The i n c r e a s i n g r a t e o f t h e p r o c e s s o f u r b a n i z a t i o n has a c c e n t u a t e d our u r b a n p r o b l e m s , z o n i n g and p l a n n i n g have d e v e l o p e d t o a m e l i o r a t e some o f t h e s e u r b a n p r o b l e m s . The Z o n i n g B o a r d s o f A p p e a l a r e c o n s t i t u t e d as s a f e t y v a l v e s t o 16 protect the interests of individuals against unnecessary hard-ship caused by decisions made i n the public i n t e r e s t . It i s hypothesized that i f the Zoning Boards of Appeal follow a uniform procedure and are supplied with a clear statement of zoning objectives and planning p r i n c i p l e s , then these Boards can support the implementation of municipal planning p o l i c i e s . An investigation of conventional and changing concepts of zoning and planning and the c h a r a c t e r i s t i c s of Zoning Boards of Appeal i s made to form a background for the Case Study. Three Zoning Boards of Appeal, for communities i n the Vancouver Metropolitan Area are analyzed. These observations are com-pared with similar experiences found i n other North American communities to arrive at some recommendations for improving functioning of the Zoning Boards of Appeal. The study i s concluded by reviewing the evidence i n support of the hypothesis and suggesting directions for further research. 17 FOOTNOTES 1 Robert A. Walker, The Planning Function i n Urban  Government (Chicago: The University of Chicago Press, 1951), p. 57. 2 Edward M. Bassett, Zoning, The Law, Administration, and Court Decisions During the F i r s t Twenty Years (New York: Russell Sage Foundation, 1936), p.27. 3 V i l l a g e of E u c l i d (Ohio) v Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114 (1926). 4 Walker, op. c i t . , p.21. 5 E.C. Yokley, Zoning Law & Practice ( C h a r l o t t e s v i l l e , V i r g i n i a : The Michie Co., 1953), p.2. 6 Province of B r i t i s h Columbia, Municipal Act, R.S.B.C. Chapter 255 ( V i c t o r i a : Queens Prin t e r , 1964), Section 572. 7 Province of B r i t i s h Columbia, Vancouver Charter, R.S.B.C. ( V i c t o r i a : Queens Printer, 1961), Section 572.. 8 In t h i s regard see Vancouver Charter (ibid.,) Section 573(1) and 573(2). 9 Harland Bartholomew, Land Uses i n American C i t i e s (Cambridge: Harvard University Press, 1955), p.2. 10 David S.M. Huberman, Introduction to Legal Aspect  of the Construction Industry (Vancouver: P r i v a t e l y published, 1964), pp.5-10. 11 E a r l A. Levin, "Zoning i n Canada", Community  Planning Review, Vol.VII, No.2 (1958), p.85. 18 12 Calvin S. Hamilton, "Zoning Administration", Planning 1962 (Chicago: American Society of Planning O f f i c i a l s , 1962), p.71. 13 Richard F. Babcock, "Zoning Amendments and Variations", Northwestern University Law Review, Vol.48 (1953), p.481. 14 City of East Chicago, Ind v S i n c l a i r Refining Co., 111 N.E. 2d 459.464; Brackett v Board of Appeal of Building Department, 1942, 311 Mass.52, 39 N.E. 2d 956; St. Onge v  City of Concord, 1949, 95 N.H. 306, 63 A. 2d 211,223; Hefferman v Zoning Board of Review, 1929, 50R.1.26, 114A.674, 676. 15 Province of B r i t i s h Columbia,op. c i t . 16 Ibid. 17 Province of B r i t i s h Columbia, Vancouver Charter, op. c i t . 18 Henry C. Black, Black's Law Dictionary (St. Paul, Minn: West Publishing Co., 1933), p.659. 19 Ibid., p.105. 20 Ibid., p.991. 21 Ibid., p.1411. 22 Ibid., p.1692. 23' Ibid., p.588. CHAPTER II ZONING AND PLANNING IN PERSPECTIVE The p r i n c i p a l purpose of every organization i s to make possible the attainment of some objective or a series of objectives. These objectives have an important bearing upon the'form which an organization u t i l i z e s to atta i n i t s goals. In order to gain a better understanding of any process; i t i s perhaps necessary to have some conception of the purposes and objectives that these i n s t i t u t i o n s seek to accomplish-. The objectives and purposes of zoning and planning are reviewed i n t h i s chapter. I THE OBJECTIVES OF ZONING The current status of zoning i s the product of a number of h i s t o r i c a l circumstances, the explanation of which i s beyond the scope of t h i s study. The following w i l l however provide a< br i e f survey of: the early history of zoning; the theory and purpose of zoning; and the current concepts of zoning. Early History of Zoning: The early history of zoning may be traced from the ancient Roman Law which recognized the need for zoning to protect the streets from encroachment and to regulate 20 building heights.'*- Lewis, in writing about the development of zoning concepts, mentions that zoning or " d i s t r i c t i n g " , as the Germans c a l l e d i t at the time of i t s conception i n 1884, sought only to remedy the severe instances of population o density i n congested urban areas. The population density was regulated by d i c t a t i n g the size of buildings i n propor-tion to the lot area they occupied. Similar uses were grouped together through zoning techniques. There i s a lack of agreement as to the precise or i g i n s of zoning i n North America. However, the growth, defense, and acceptance of zoning seems to be r e l a t e d to two phenomena: the City Beautiful movement which started with the Columbian Exposition held i n Chicago during 1893; and the rapid growth of c i t i e s i n the early 1900 ,s. The problems of congestion and safety, the problem of c o n t r o l l i n g nuisances, and the problems of use and development of land in such a way as to benefit the i n d i v i d u a l and the community, demanded controls on land use and land development. Early attempts to control development of land were not oriented toward regulating the height, bulk or density of buildings. These i n i t i a l regulations were aimed at protecting the i n d i v i d u a l property owner from encroachment upon his r i g h t to the peaceful enjoyment of his land. Municipalities of North America were slow in employing 3 zoning regulations,to prescribe and direct their growth. In 1903 Boston, Massachusetts, was the f i r s t city to adopt a 4 building height d i s t r i c t ordinance. Los Angeles adopted the 5 f i r s t zoning ordinance which applied to the whole city. These ordinances tended to be in contravention of the common-law and constitutional rights of the individual to use of his property. Cities were i n i t i a l l y reluctant,to adopt such ordinances. But ci t i e s soon came to realize the bad housing conditions caused by the influx of immigrants from abroad and rural areas, who sought jobs in the fast developing industrial communities. The general consensus developed that there ought to be some means of controlling these adverse effects through legislation. The f i r s t step towards zoning control was exclusion of undesirable industrial developments from r e s i -dential areas. Prior to these restrictions commercial and industrial structures could cover 100 per cent of the lot area without any height restrictions. With the technical advances in building construction, the use of steel and high speed elevators, these t a l l structures obstructed free penetration of light and air into adjacent buildings and so tended to be health hazards. Furthermore, increasing land values forced commercial and industrial enterprises to exploit residential locations. These shortcomings gave rise to the general 22 recognition of the necessity for having some type of control over the use of land. New York City, i n 1916, became the f i r s t municipality to adopt a complete zoning ordinance covering the entire c i t y and embodying the three major types of regulations: land use; 6 building height; and building area. Identifying reasons for the need for zoning i n New York City, Bassett states: . . . The most accessible spots were overbuilt-. There was danger that the subways would greatly increase congestion. . . Some c i t i e s i n t h i s country had laws l i m i t i n g the height of buildings, but there were no such laws in New York City. A building could l e g a l l y r i s e to any height what-ever, assume any form, be put to any use, and cover 100 per cent of the lot from the ground to the sky. . . A high building so erected prevented other similar buildings from being constructed in i t s immediate v i c i n i t y . The reason for t h i s was that the desired building would have no l i g h t on the side toward the e x i s t i n g building. The study of building height proved that prevention of chaotic conditions required much more.than height regulations. . . It also became evident that improper uses caused injury to homogeneous areas and were es p e c i a l l y productive of premature depreciation of s e t t l e d l o c a l i t i e s . . . It became apparent that regulations might be adopted that would tend to s t a b i l i z e some l o c a l i t i e s for one family, detached homes, others for apartment houses free from stores and o f f i c e s , others from stores and f a c t o r i e s . . . Thus i t came about that the new zoning clauses of the Charter provided for the preparation of regulations 23 a f f e c t i n g height, area and use of buildings, and the use of land.' This statement of objectives introduced zoning i n New York City. Similar reasons i n other c i t i e s r a i s e d the demand for some legal means of ameliorating the many weak-nesses i n urban development. Prior to the introduction of zoning, American c i t i e s t r i e d to solve these problems by other means, namely: nuisance laws, r e s t r i c t i v e covenants, building regulations, and f i r e regulations. These measures were employed on the basis of public safety and were applied by d i f f e r e n t , often unrelated, authorities. The uncoordinated controls provided only sporadic and piecemeal protection and solved only a ne g l i g i b l e portion of urban problems. It became imperative to develop some in t e g r a l l e g a l t o o l capable of c o n t r o l l i n g not only the use of land, but also bulk and height of buildings. Following adoption of the New York City ordinance, zoning not only spread r a p i d l y but also gained l e g a l recognition. Woodbury indicates that "during the 1920*s, zoning f l o u r i s h e d r a p i d l y . Hundred of c i t i e s adopted ordinances. A very substantial body of state and some federal decisions gradually established i t s legal respecta-b i l i t y . " 8 Zoning gained recognition i n expansion of the concept "which i s basic to law and order, health and safety, property 24 protection and t r a n q u i l l i t y within communities, small or g large." In America such power rests with the State Legis-lature. In Canada, under Sub-Section 8 of Section 92 of the B r i t i s h North America Act, the provinces have been assigned 10 t h i s power. In B r i t i s h Columbia t h i s power i s delegated to the municipalities under the Municipal Act or by sp e c i a l Charter (the Vancouver Charter, i n the case of the City of Vancouver) to adopt zoning by-laws for regulation of use of land within their municipal boundaries. 1 1 With this b r i e f h i s t o r i c a l background i t i s now considered necessary to look into the theory and purpose of zoning. Theory and Purpose of Zoning: Bassett's reasons for zoning in New York City, mentioned in the e a r l i e r i n t h i s chapter, indicate the emerging theory of zoning. Although objectives for zoning were promotion of health, safety, morals and general community welfare, never-theless i n d i v i d u a l acceptance of the control over common law rig h t s of property was met with animosity. I n i t i a l l y the courts were of the opinion that the zoning by-laws were i n contravention of common-law as they deprived the owner of a property of a use thereof which would otherwise be lawful. The courts always tended to protect the ri g h t s of the property owner," the American judges tended to be impatient with rules that r e s t r i c t e d the individual's dominion over his land." 1^ 2 5 The p r e v a i l i n g attitude .was that a man has a right to do what he wants on his land. Beuscher has quoted Blackstone i n t h i s context, "So great, moreover, i s the regard of the Law for private property that i t w i l l not authorize the least v i o l a -t i o n of i t ; no, not even for the general good of the whole 13 community." Since the theory and purpose of zoning was often disputed and i t gained public and l e g a l recognition through court decisions, i t i s suggested that t h i s can best be demonstrated by c i t i n g decisions of ..a selected number of cases which r e f l e c t the early theory. It has been said that the theory of zoning i s to foster improvements by confining cer t a i n classes of buildings and uses to cert a i n l o c a l i t i e s without imposing any unnecess-14 ar.y or undue hardship on the property of the owners. This view has been supported by another court decision which held that the ultimate purpose of zoning was to confine cer t a i n classes of buildings and.land uses to.certain s p e c i f i e d 15 areas. Some courts held to the theory that zoning by-laws s t a b i l i z e d the property values by confining certain uses to 16 c e r t a i n area. The famous Eu c l i d case emphasized that the purpose of zoning was to promote orderly physical growth in a c i t y by establishing various use d i s t r i c t s i n which cert a i n land uses are sanctioned while other uses, thought to be 17 incompatible with those sanctioned, are excluded. The E u c l i d case r e f l e c t s change i n objectives of zoning from mere 26 control of building height, bulk, and use to comprehensive zoning of the whole c i t y . It stated that "zoning i s a 18 comprehensive plan of land use based on the pol i c e power." Another very important aspect of the Eu c l i d case i s that i t s decision made i t clear that a community may determine the nature of i t s development, and that i t may plan and regulate 19 the use of land i n the public i n t e r e s t . The changing trend i n the objectives of zoning may be seen further through another United States Supreme Court decision which stated that "zoning looks not only backward to protect d i s t r i c t s already i n existence but forward to aid in the development of new d i s t r i c t s according to a compre-hensive plan having as a basis the welfare of the City as a 20 whole." This decision recognized zoning as an instrument for bringing the whole c i t y into some kind of a comprehensive plan. In his paper "What i s Comprehensive Zoning?", Bartholomew emphasizes that: Zoning was but one element of a comprehensive plan, which required not only studies of population and land uses d i r e c t l y contributing to zoning regu-l a t i o n s , but also studies of major streets, t r a n s i t , transportation, parks and public buildings.21 Several examples of the statement of objectives of zoning, i t i s hoped, w i l l c l a r i f y the current picture. A t y p i c a l statement of the objectives of zoning i s found in the I l l i n o i s Enabling Act: To the end that adequate l i g h t , pure a i r , and the safety from f i r e and other dangers may be secured; 27 that taxable value of land and buildings through-out the municipality may be conserved; that congestion i n the public streets may be lessened or avoided; and the public health, safety, comfort, morals, and welfare may otherwise be promoted. . .2 This statement i s based on the theory that zoning should not be based on private or neighbourhood considerations and that i t should promote the general welfare of the entire community. The Municipal Act of the Province of B r i t i s h Columbia i s one of the few pieces of enabling l e g i s l a t i o n i n Canada that attempts to define the purpose of zoning. The Zoning Study Committee of the Royal A r c h i t e c t u r a l In s t i t u t e of Canada i n i t s report mentions the following as a statement 2 3 of purpose of zoning i n the Province of B r i t i s h Columbia: 1. The promotion of health, safety, convenience and welfare of the public. 2. The prevention of the overcrowding of land and the preservation of the amenities peculiar to any zone. 3. The securing of adequate l i g h t , a i r and access. 4. The value of land and nature of i t s present and prospective use and occupancy. 5. The character of each zone, the character of the buildings already erected, and peculiar s u i t a -b i l i t y of the zone for p a r t i c u l a r uses. 6. The conservation of property values. 28 The Zoning and Development By-law No. 3 5 7 5 of the City of Vancouver, B r i t i s h Columbia, very c l e a r l y r e f l e c t s the changed concept of zoning i n i t s preamble which states: A By-law to regulate, within the City of Vancouver, the development of land, as defined herein, with respect to the use of the same, and the location, design, construction, and use of buildings and structures for residence, commerce, trade, industry, recreation, culture, and other purposes; to regulate and l i m i t the height, number of storeys and the size of buildings and other structures to be erected hereafter or the a l t e r a -tions of ex i s t i n g buildings and structures; to regulate and determine the siz e of yards, courts and other open spaces; to prescribe building l i n e s , to regulate and l i m i t the density of population; to conserve and s t a b i l i z e the value of property; to provide adequate open spaces for l i g h t and a i r ; to protect and improve amenity; to lessen congestion on streets; to promote health, safety and general welfare; and for a l l or any of the said purposes to divide the City into d i s t r i c t s of such number, shape and area as may be deemed best suited to carry out these regulations i n accordance with a Town Plan and to provide for the granting or r e f u s a l of develop-ment permits in accordance therewith including where necessary the imposition of conditions r e l a t i v e to the granting of such permits, and to provide for the enforcement of th i s By-law and to prescribe penal-t i e s for the v i o l a t i o n of i t s provisions.^4 These "examples when compared with the o r i g i n a l concept, which defined zoning as a device to prevent nuisance, exhibit the changed concept of zoning. The change i s from a negative technique of prevention to a po s i t i v e technique used in the implementation of a plan. The Current Concept of Zoning: T r a d i t i o n a l zoning by-laws simply divided the c i t y into d i f f e r e n t functional parts, or more accurately into three 29 parts: Residential; I n d u s t r i a l and Commercial. Different height and bulk controls were applied to these parts. These by-laws succeeded i n separating incompatible uses and i n c o n t r o l l i n g density etc. But with the advent of modern technology, namely: new sources of power; new building tech-niques; and new modes of fast transport, the zoning by-laws based on the status quo did not work s a t i s f a c t o r i l y . These tended to emphasize the d i s t i n c t i o n s between uses rather than the r e l a t i o n s h i p s which t i e them together, and besides t h i s these were very simple and exceptions had to be made. Although at the same time these by-laws did not cover many aspects of development which required control. Delafons states that the r e s u l t of these d e f i c i e n c i e s has been the development of new techniques and ordinances which go far 2 5 beyond the t r a d i t i o n a l scope of control". The changing trend i s to r e l a t e controls more clos e l y to the planning p o l i c i e s with emphasis on e f f i c i e n c y and convenience rather than on the old objectives of health and safety. The types of land uses are separated by type of use and l o c a t i o n a l requirements with l i t t l e emphasis on d i f f e r e n t i a t i o n of uses 26 as an end i n i t s e l f . In t h i s current system the trend i s to r e s t r i c t s p e c i f i c land uses to d i f f e r e n t d i s t r i c t s , but here land uses are defined more prec i s e l y and prior consi-deration i s given to their r e l a t i o n s h i p among uses. This enables the controls to be more f l e x i b l e and gives the 30 property owners more lati t u d e i n development. D i s s a t i s f a c t i o n with the t r a d i t i o n a l system because of i t s r i g i d i t y has led to acceptance of the c r i t e r i o n that control should not be 27 on use but on the e f f e c t . This has led the modern zoning controls to be based on performance standards. E a r l Levin i n his paper "Zoning i n Canada" commenting on two recent papers on the subject mentions: Both these papers argued that each land use should be tested by i t s direct and ..indirect effect on adjacent land use, on governmental services, and on the community growth, and that industry, business, and homes could be located i n any zone so long as 2 8 the intended use met adequate performance standards. It i s apparent that i n order to meet a l l complexities and problems a r i s i n g from the control of the use of land, a zoning by-law can no longer remain a stereotyped document which may be drafted by a lawyer alone. It has tended to become an important instrument i n the implementation of municipal planning p o l i c i e s which are framed by systematically a n t i c i p a t i n g and achieving adjustment i n the physical environ-ment of the c i t y and which are consistent with s o c i a l and economic trends and sound p r i n c i p l e s of community planning. 31 II THE OBJECTIVES OF COMMUNITY PLANNING Recent urban growth i n North America has indicated that zoning based upon preservation of the "status quo" does 29 not work s a t i s f a c t o r i l y i n a growing community. In order to meet the demands of a growing community, adequate pro-v i s i o n has to be made not only to meet the growing demand for t r a d i t i o n a l places to l i v e but also arrangements have to be made to provide places for work, places for recreation and places for community services. In addition to the requirements of growing communities to provide services to new areas there i s also a need to make provisions for the renewal of old communities. Community planning i s a continuing process which determines and adjusts a l l such s p a t i a l requirements and desires of the community within the context of a compre-hensive plan. Carl Feiss emphasizes that "community plannin has the s o c i a l objectives of providing a better community for a l l people i n which to l i v e , r a i s e f a m i l i e s , work and 30 play." The planning process may be an e f f e c t i v e i n s t r u -ment for achieving in thi s objective of determining and adjusting a l l of these land use requirements and of v i s u a l -i z i n g a l l needs and aspirations of the Community. The planning process, which i s continuous, may be divided into three parts: the formulation of goals; the 32 development of a plan; and the development of techniques and p o l i c i e s to implement the plan. These three functional parts may be explained i n s i m p l i f i e d form as: "the aim; the 31 way; and the how" of the planning process. Different 32 breakdowns have been suggested by various authorities but the basic pattern of organization i s the same. Whatever mode or terminology i s adopted, the process s t a r t s with the formulation of a goal or a set of goals, including a s p e c i f i c set of standards that are to be achieved. These are r e f l e c t e d in the development of a plan; the cycle i s completed by the adoption of implementation techniques for achieving these goals, plus a follow-up study and adjustments to the plan. The establishment of a goal, the development of means by which i t i s to be achieved, and the normative system for i t s accomplishment are a l l interdependent functions. Any v a r i a t i o n at any stage w i l l have considerable effect on the c y c l i c motion of the process. Carrothers supports t h i s contention, while describing planning i n Manitoba. He states that "community planning must be a continuous process, f o r -ever adapting i t s e l f to changing objectives, which r e s u l t 35 from changing needs and conditions." These three functional parts of the planning process are discussed below. 33 The Goals: The standards of planning are determined by the goals of each community. The extent to which improvements can be made i n i t i a l l y depends on the present conditions i n the community and the desired standards of the community. In other words the goals of a well developed community w i l l d i f f e r from the goals of an older community with sub-standard housing and public f a c i l i t i e s . Furthermore goals must be established i n r e l a t i o n to the l e v e l of government, whether i t i s a community, region or nation and among any combina-tio n thereof. The planning process in the United States, according to the Housing and Home Finance Agency, has as i t s goal "the creation of an environment i n which people can l i v e and work 34 usefully, productively, h e a l t h f u l l y , and happily." This goal i s to be achieved by progressively r a i s i n g standards i n four basic areas of human needs, namely, "shelter, f a c i l i t i e s 35 and services, supplies, and employment." On adoption of these goals at the national, state and municipal l e v e l , i t may be said, that these goals i n fact become a standard against which community planning proposals may be measured. Those proposals which are consistent with the na t i o n a l l y adopted goals w i l l be considered good and worthy pf imple-mentation and those proposals which are inconsistent with the nationally adopted goals w i l l be discarded. 34 Delafons, i n his study of land use controls i n the United States, has commented that i t i s rare to f i n d a c i t y which has t r i e d to define goals of i t s planning p o l i c y i n more than a cursory manner. The goals are defined in vague terms, such as: e f f i c i e n c y i n communications and use of land; u t i l i t y in terms of production and d i s t r i b u t i o n ; economy in terms of provision of public services; and convenience for 36 l i v i n g and working. Kevin Lynch discusses these goals as "the goals of choice, interaction, p a r t i c i p a t i o n , growth and ..37 adaptability, continuity, and imageability. These goals are too general for conversion into a workable programme. Delafons has summarised the objectives and methods of American planning as follows: 1. Preventing c o n f l i c t s of private interest i n land (zoning). 2. Preventing c o n f l i c t s of private and public interest i n land use (master planning). 3. Preventing c o n f l i c t s of various public interests (master planning and c a p i t a l invest-ment programming). 4. Securing sound standards of new development (zoning and subdivision regulation). 5. F a c i l i t a t i n g private development and encouraging private investment (the whole planning process, including urban renewal). 6. Making our town a better place to l i v e and do business i n - e f f i c i e n c y , convenience and economy and c r i t e r i a . 3 8 A s p e c i f i c example of t y p i c a l objectives of American planning p r i n c i p l e s can be found i n the Master Plan for San Francisco (Appendix I ) . 35 The Development Plan: The development Plan evolves out of the d e f i n i t i o n of goals of a community and i t contains " a l l essential features to provide a perceptible order of development, and standards to ensure a stated degree of amenity and 39 convenience for i t s c i t i z e n s . " The development plan has 40 d i f f e r e n t connotations within di f f e r e n t planning contexts. The problem of making a development plan for a small town w i l l d i f f e r from that of a metropolitan c i t y in scale and complexity. But regardless of any variants, a development plan should set out the e s s e n t i a l features of land use and c i r c u l a t i o n patterns to provide orderly development. It should also define "standards to ensure a stated degree of 41 amenity and convenience." Any development plan should include the following components: 1. A land use plan of the entire area, designating areas for development of various land uses: r e s i d e n t i a l ; commercial; i n d u s t r i a l ; and open spaces. 2. A c i r c u l a t i o n plan showing the c i r c u l a t i o n pattern of people and goods. Chapin writing on "The Plan and Its A n a l y t i c a l Framework" has given a summary of the contents of a land use plan, as follows: 36 The land use plan r e f l e c t s an analysis of urban a c t i v i t y systems and a c a r e f u l l y studied estimate of future land requirements for expansion and renewal, showing how development in the area should proceed i n the future to ensure the best possible physical environment for urban l i v i n g , the most economic use of land, and the proper balance i n use from a cost-revenue point of view. Fundamentally, then, the land use plan embodies a proposal as to how expansion and renewal should proceed i n the future, recognizing l o c a l objectives and generally accepted p r i n c i p l e s of health, safety, convenience and the general amenities of urban l i v i n g . ^ 2 The various uses proposed in the land use plan w i l l e f fect the c i r c u l a t i o n pattern of people and goods. The anticipated volume of t r a f f i c w i l l e ffect the designed t r a f f i c capacity of the streets which may in turn cause a series of changes i n the land use patterns i n order to keep the c i r c u l a t i o n pattern e f f i c i e n t . To cover most of these contingencies, the National In d u s t r i a l Zoning Committee, at i t s meeting i n Nashville i n July 1956 adopted the r e s o l u t i o n that both the land use plan and the c i r c u l a t i o n plan should be coordinated with: 1. The physical c h a r a c t e r i s t i c s of the area e s p e c i a l l y as they effect u s a b i l i t y of land for various purposes. 2. Present and probable future c h a r a c t e r i s t i c s of the population and economy of the area. 3. A u t i l i t y p o l i c y taking account of the f e a s i -b i l i t y of future extensions of e x i s t i n g water, sewer, drainage, power gas and other services. 4. A programme for providing community f a c i l i t i e s , including school, park, playground, health public safety, and other governmental buildings and f a c i l i t i e s . 4 3 3 7 The plan on adoption should be capable of being translated into a series of standards which can be enforced through a zoning by-law and other development regulations. Hence the d e f i n i t i o n of standards becomes an es s e n t i a l part of a plan. The importance of standards i n the formulation of a plan i s expressed by T. J. Kent, who suggested that i t i s not possible to make a plan that does not express s i g n i -4 4 f i c a n t value judgments concerning standards. If standards play such a s i g n i f i c a n t part, i n planning, one must„inquire further into their c h a r a c t e r i s t i c s . Standards: The word 'standards' i s used loosely and has been poorly defined in planning. This i s mainly due to the fact that there i s a hierarchy involved i n terms of 4 5 standards, and.in terms of what they control. Standards are a r e s u l t of the formulation of a goal or a set of goals, in other words they evolve when goals are converted into tangibles. One cannot enforce an intangible goal, such as the creation of an environment i n which people can work usefully. To create an environment i n which people can l i v e and work,usefully, certain standards have to be enforced through adoption of a plan. Charles Haar suggests that when a master plan which i s in fact a community plan i s adopted, 4 6 i t becomes a kind of gross standard. It could e a s i l y be argued that the goals or objectives must then be r e a l i s t i c a l l y set i n terms of present and proposed standards, which can be 3 8 enforced i n the community i n order to atta i n the goals. Every community has in d i v i d u a l needs, attitudes, aspirations, and resources. It i s therefore v e r y . d i f f i c u l t to evolve a standard of development generally applicable, since as each situation,needs i n d i v i d u a l evaluation, Hubbard points out "each community presents, an. i n d i v i d u a l problem not to be solved by being pointed into a common mould." These standards may vary not only from community to community, but they may. also change in time. It has been suggested that "standards cannot remain s t a t i c but should be improved in 48 terms of contemporary conditions." Some planning standards are measurable i n terms of engineering requirements, such as, safe street design, a i r and water, p o l l u t i o n control, water and sewer treatment etc. Such standards can be defined by subjecting the relevant system to controlled testing and measurement. These standards, can be defined p r e c i s e l y and can be tabulated for each s i t u a t i o n . The performance standards are based on the fact that i f objectionable features of a use could be removed the use could then be permitted anywhere. These standards can only account, for.measurable obnoxious characteristics,.such as smoke, noise and some odours. But at the present state of s c i e n t i f i c knowledge "the o b j e c t i v i t y 49 of performance standards rests on a subjective foundation," 39 for i t i s very d i f f i c u l t to say to what point people f i n d these c h a r a c t e r i s t i c s offensive. These standards are d i f f i -c u l t and expensive to enforce for they require more s p e c i a l -ized instruments and technical personnel for their enforcement. Another category of standards i s r e l a t e d to s o c i a l goals and a c t i v i t i e s , which are intangible. These can only be measured by a set of personal values which w i l l tend to be a subjective judgment dependent on the s o c i a l and c u l t u r a l background of the investigator, and his personal preferences and prejudice. These standards tend to be vague and i n e x p l i -c i t and so are very d i f f i c u l t to enforce. Planning standards become a measure of functional, areal, or performance quality, and quantity of a land use. In t h i s way these are guidelines and constraints which the planner and the public use i n their attempt to secure a desired l e v e l of environmental conditions. One must look into the c h a r a c t e r i s t i c s of the planning standards i n order to be able to use them with greater s e n s i t i v i t y and thus to be assured of achieving the desired goals of the community. "These standards should neither be the lowest common denominator nor less than what i s r e a d i l y acceptable." Plan Implementation: Before a development plan can have any value to the community i t must include some provision for i t s implementation. A zoning by-law adopted 40 under' the enabling l e g i s l a t i o n i s one of the more important tools of implementing a plan. A zoning by-law divides the municipality into d i s t r i c t s within which permissible uses of land are prescribed, and i n which r e s t r i c t i o n s on the height, bulk, layout of the buildings may be defined. Enforcement of a zoning by-law i s a means of plan implemen-ta t i o n having s i g n i f i c a n t impact on private property, the development of which would otherwise be beyond the control of the municipality. Normally, the private development of property depends on i t s owner; unless an o v e r a l l system of control exists i t i s d i f f i c u l t to guide such development towards a preconceived pattern of development. A zoning by-law i s i n many ways the most comprehensive le g a l t o o l available to control private development. As a point of caution, i t may be mentioned that the zoning by-law as considered here i s c l o s e l y based on planning c r i t e r i a . It should not be understood according to i t s t r a d i t i o n a l meanings, previously explained, where zoning was considered as a separate entity from community -planning. Other means of plan implementation, such as sub-d i v i s i o n control, building code enforcement, and c a p i t a l budgeting may be combined with the zoning by-law to guide the future growth of the community along the l i n e s of a 41 consistently higher quality of development. A l l these controls are equally important, but as t h i s thesis i s p a r t i -c u l a r l y concerned with zoning these other means of plan implementation are not considered i n d e t a i l here. The zoning by-law performs a dual function in the planning process. F i r s t l y , i t may have the effect of correct-ing portions of e x i s t i n g development deemed undersirable by the community. Such improvement comes about when non-conforming use provisions are properly enforced, thus ensuring that improperly located land uses w i l l eventually be relocated i n a more appropriate zone, and thus contribute to the improve-ment of the community. Secondly, the zoning by-law aids in preventing the recurrence of past mistakes, within the c i t y ' s newly developing areas. This i s achieved through i t s permit-ted and prohibited land use requirements, and i t s space standards which ensure development of a more desirable quality. It i s a function of the zoning by-law to guide future growth along preconceived l i n e s according to the compre-hensive plan. It also functions as a guide for the r e l o c a -tion of uses which were poorly located due to careless decisions made prior to enforcement of zoning. The zoning by-law i s one of the p r i n c i p a l means in an urban renewal program designed to correct a s i t u a t i o n within the portion of the c i t y which has become b u i l t up, and where preventive 4 2 action taken before the problem arises cannot now provide a solution. It i s also a function of the zoning by-law to be one p r i n c i p a l means of making certain that growth i n newly developing areas avoids the mistakes of the past. But these functions are highly dependent on the c h a r a c t e r i s t i c s of the plan (or planning p o l i c i e s where there i s no plan) of a municipality. It i s true that "good planning i s e s s e n t i a l to good zoning. " ^ The zoning by-law in the plan implementation process has four administrative aspects: the d a i l y enforcement of zoning by-law regulations; the hearing of appeals a r i s i n g out of undue or unnecessary hardship cases; the zoning by-law amendments; and the scope for j u d i c i a l review for administrative action. These aspects are reviewed in chapter III, consideration of the zoning by-law amendments i s considered beyond the scope of t h i s thesis and so the zoning by-law amendment process i s not included. I l l SUMMARY Contemporary zoning i s the product of h i s t o r i c a l circumstances. Zoning techniques and concepts have advanced i n recent years. Zoning now i s enforced and accepted as a t o o l to implement municipal planning p o l i c i e s as against the t r a d i t i o n a l concept of control on the basis of nuisance laws, r e s t r i c t i v e covenants etc. It i s now well recognized that 4 3 zoning can be neither completely comprehensive nor perma-nently e f f e c t i v e unless i t i s undertaken as a part of a 51 comprehensive c i t y plan. The current concept of zoning, as a p o s i t i v e technique in the implementation of a plan, i s r e f l e c t e d i n the enabling l e g i s l a t i o n of some provinces i n Canada. Now the zoning by-law forms an important part of. the community planning process, which i s a continuous process comprised of: the formulation of goals; the development of a plan or planning p o l i c y , which involves d e f i n i t i o n of standards; and the adoption of implementation techniques. This process has the general objective of providing a better place in which to l i v e , r a i s e families, work, and play. The zoning by-law i s only a tool for implementation, actual development i s conditional on having a good municipal plan or a good planning p o l i c y . Some aspects of zoning by-law administration are reviewed i n Chapter I I I . FOOTNOTES 44 1 Nelson P. Lewis, The Planning of the Modern City, (New York Cit y : John Wiley & Sons Inc., 1922), p.266. 2 Coleman Woodbury (ed.), The Future of C i t i e s &  Urban Redevelopment, (Chicago: The University of Chicago Press, 1961), pp.640-41. 3 C. Si LeCraw, Jr. & W. S. Smith, Zoning Applied to  Parking, (Saugatuck, Connecticut: The Eno Foundation for Highway T r a f f i c Control, Inc., 1948), p . l . 4 E. C. Yokley, Zoning Law & Practice, ( C h a r l o t t e s v i l l e , V i r g i n i a : The Michie Co., 1948), p.20. 5 Ibid. 6 Austen F. MacDonald, American City Government &  Administration, (New York Cit y : Thomas Y. Crowell Co., 1946), p.434. 7 Edward M. Bassett, Zoning, The Laws, Administration  & Court Decisions During the F i r s t Twenty Years"] (New York: Russell Sage Foundation7 1936), pp.23-26. 8 Ibid. 9 Yokley, op. c i t . , p . l . 10 Robert M. Dawson, Democratic Government in Canada, (Toronto: The Copp Clark Publishing Co. Ltd., 1957), p.154. 11 Province of B r i t i s h Columbia, The Municipal Act,  RSBC 1960, Chapter 255, ( V i c t o r i a : The Queens Prin t e r , 1964), p.3237. 45 12 William Weismantel, A New Vision i n Law: The City as an A r t i f a c t , Urban L i f e & Form, (New York: Holt, Rinehart & Winston, Inc., 1963), p.48. 13 J. H. Beuscher, Land Use Controls - Cases &  Materials, (Madison, Wisconsin: The College P r i n t i n g & Typing Co., 1964), p.1. 14 Goodrich v Seligman, 298 Ky.863, 183 S.W. (2d)625. 15 State ex r e l . Chathes v Rowland, 131 Conn.261, 38 A(2d) 785. 16 Abbadessa v Board of Zoning Appeals of City of New Haven, 134 Conn.28, 54 A.(2d) 675. 17 Vi l l a g e of E u c l i d v Ambler Realty Company, 272 U.S., 365, 47 S.Ct. 114 (Ohio). 18 Ibid. 19 Ibid. 20 r Zahn v Board of Public Works (Oct. 1926) 274 U.S.324; 71. L.Ed. 1074. 21 Harland Bartholomew, as quoted i n Theodora K. Hubbard et. a l . , Our C i t i e s Today and Tomorrow, (Cambridge: Harvard University Press, 1929), p.165. 22 I l l i n o i s . Revised Statutes, 1951, Chapter 24, Section 73(1). 23 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, Reflections  on Zoning, (Ottawa: Zoning Study Committee, Royal Architec-t u r a l I n s t i t u t e of Canada, 1965), p.7. 46 24 City of Vancouver, Zoning & Development By-law No.3575, (Vancouver: The City of Vancouver, 1956), p . l . 25 John Delafons, Land Use Controls i n the United  States, (Cambridge: Massachusetts Institute of Technology, 1962) , p.34. 26 Delafons, op. c i t . , p.34. 27 Delafons, op. c i t . 28 E a r l A. Levin, 'Zoning i n Canada', i n Community  Planning Review, Vol.VII, No.2 (June 1957), p.85. 29 Statement Adopted by the National In d u s t r i a l Zoning Committee at i t s Meeting held i n Nashville i n June 1956, Ontario Planning, No.IV, Vol.3, 1957. 30 Carl Feiss, "Urban Redevelopment & Urban Planning", in Planning 1950, (Chicago: American Society of Planning O f f i c i a l s , 1950), p.24. 31 J u l i a J. Broderik, An Analysis of Planning Standards as they Appear i n Massachusetts Adjudications (Boston: M.I.T., An unpublished MCP Thesis, 1962), p.37., 32 F. Stuart Chapin, i n Urban Land Use Planning (Urbana: University of I l l i n o i s Press,, 1965), breaks down the process into three stages: Goal s p e c i f i c a t i o n ; Decision making stage; and plan execution, evaluation and reorientation stage. 33 James B. Milner, Community Planning. A Casebook on  Law and Administration (Toronto: University of Toronto Press, 1963) , p.64. 34 Robert D. Campbell and Hugh L. LeBlanc, An Information  System for Urban Planning, (Washington, D.C: Urban Renewal Administration, Housing & Home Finance Agency, 1965), p.10. 47 35 Ibid. 36 John Delafons, Land Use Controls in the United States, (Cambridge: M.I.T. & Harvard University, 1962), p.33. 37 Kevin Lynch, as quoted by A. J. Dakin, in'New Survey Techniques and Goals of the Plan", Planning 1965, (Chicago: American Society of Planning O f f i c i a l s , 1965), p.111. 38 Ibid., p.36. 39 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, Reflections  on Zoning, (Ottawa: Zoning Study Committee, Royal Architec-t u r a l I n s t i t u t e of Canada, 1965), p.9. 40 It i s also known as the General Plan, Master Plan, Comprehensive Plan etc. 41 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, op. c i t . 42 ,F. Stuart Chapin, J r . , Urban Land Use Planning, (Urbana: University of I l l i n o i s Press, 2nd ed., 1965), p.355. 43 . . . National I n d u s t r i a l Zoning Committee, op. c i t . 44 T., J. Kent,. Jr . , The Urban General Plan (San Francisco: Chandler Publishing Co., 1964), p.20. 45 Broderick, op. c i t . 46 Charles M. Haar, "The Master Plan: An Important Constitution", Law & Contemporary Problems, (Durham, N.C.,: Duke Law School, 1955), Vol.20, p.35. 47 Theodora K. Hubbard, et. a l . , Our C i t i e s , Today &  To-morrow, (Cambridge: Harvard University Press, 1929), pZl84. 48 48 Peter G. Burns, "Substandard Housing and the Enforcement of Minimum Standards", Habitat, Vol.VII, No.4, July-August, 1964, p.20. 49 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, op. c i t . , p. 16. 50 Ibid. 51 National I n d u s t r i a l Zoning Committee, op. c i t . 52 Huber E. Smutz, Is Zoning Wagging the Dog?, i n Planning 1955, (Chicago: American Society of Planning O f f i c i a l s , 1955), p.103. CHAPTER III A REVIEW OF THE OPERATION OF ZONING BOARDS OF APPEAL The passage of a zoning by-law i s a l e g i s l a t i v e function. The operation of a zoning by-law i s an adminis-t r a t i v e function. With the complexity of physical s i t u a -tions numerous le g a l problems arise r e l a t i n g to the administration and c o n s t i t u t i o n a l i t y of the zoning by-law. To keep the operation of the zoning by-law within the inherent intention of the enabling l e g i s l a t i o n by avoiding imposition of manifest i n j u s t i c e , the zoning by-law contains a mandatory provision for introducing a degree of f l e x i b i l i t y into i t s administration. This provision i s the basis for the establishment of the Zoning Board of Appeal. The co n s t i t u t i o n a l authorization leading to the creation of the Zoning Board of Appeal, i t s operation, and i t s ambit of j u r i s d i c t i o n along with the p r i n c i p l e s of j u d i c i a l review and the influence of i t s decisions on the formulation and implementation of municipal planning p o l i c i e s are discussed in t h i s chapter. I CONSTITUTIONAL AUTHORIZATION 50 Since the zoning power i s an exercise of the police power, thi s power has to be derived from the constitution through enabling l e g i s l a t i o n . The most l o g i c a l place to review the c o n s t i t u t i o n a l authorization i s to star t with the highest l e g i s l a t i v e authority in the country. Canada does not have i t s own constitution, i t derives l e g i s l a t i v e authority from the B r i t i s h North America Act of 1867. 1 Under Section 92 of t h i s Act, the Provinces are delegated the exclusive power to make laws regarding "Municipal I n s t i t u t i o n s i n the Province" and "Generally a l l matters of merely l o c a l or private nature 3 i n the province." It i s under these provisions that municipalities receive authority to control the use of land and to pass necessary l e g i s l a t i o n for community planning. Operation of the Zoning By-law: The Zoning by-law i s one of the most common leg a l tools used in the implementation of municipal planning p o l i c y . The primary purpose of a zoning by-law i s to control the use of land according to prescribed standards within the bounds of enabling l e g i s l a t i o n . The modern trend towards precision i n a l l matters demands that the zoning by-law should make i t e x p l i c i t for every one as to 51 what one can, and cannot, do with one's property and that i t should cover a l l s i t u a t i o n s . This demands that the zoning by-law should be very precise and i n f l e x i b l e . It i s u niversally accepted, that under the rules of natural 4 j u s t i c e , the zoning by-law should be general.in i t s terms and should not favour or discriminate against any one in d i v i d u a l or group: The p r o h i b i t i o n must. . . be of general a p p l i -cation within the d i s t r i c t and to a l l buildings to which i t applies; and i t i s . . . beyond the competence of the Council to single out one par-t i c u l a r building within the d i s t r i c t to which the general p r o h i b i t i o n i s otherwise applicable to extend to i t exceptional or discriminatory treatment.5 Ideally, the zoning by-law should meet a l l the peculiar requirements that may exist or may develop i n the future within the municipality. But unfortunately i t i s impossible to draft a zoning by-law which can predict and meet a l l the requirements of future development. The p r a c t i c a l i m p o s s i b i l i t y of preparing such a by-law, as a tool for implementing concepts of planning, which w i l l deal with a l l property and use thereof and s t i l l avoid unnecessary hardship i n i n d i v i d u a l cases has led to the necessity of furnishing some machinery to carry out the intention of the enabling l e g i s l a t i o n , under which such by-laws are enacted. The inherent intention of the enabling l e g i s l a t i o n i s that the imposition of manifest i n j u s t i c e or unnecessary hardship 52 6 be prevented. In a New York case the learned judge writes: Zoning ordinances are not intended to be and cannot long continue to be s t r a i t - j a c k e t s to be applied and held r i g i d by purely bureaucratic authority. The l e t t e r of the ordinance must y i e l d , i n instances of extreme hardship, and according to conditions of i r r e p r e s s i b l e growth and development.^ The v a l i d i t y of a zoning by-law depends on i t s reasonableness. If i t s enforcement causes an undue or un-necessary hardship, any person so aggrieved has the locus 8 9 standi to apply for a writ of mandamus and thus bring the question of unreasonableness to the courts. If the courts f i n d the by-law unreasonable, i n the absence of provision for any r e l i e f , they may declare the by-law unconstitutional and thus void. The pos i t i o n i s , "If one person i s discriminated against then the courts are w i l l i n g to s t r i k e down the down."1^ The need to devise some means of introducing a-degree of f l e x i b i l i t y into the zoning by-law, within the premise of enabling l e g i s l a t i o n , has created the Zoning Board of Appeal. "Few j u r i s d i c t i o n s today are lacking some kind of machinery of appeal to help smooth the rough edges of zoning by-laws." 1 Most enabling l e g i s l a t i o n under which zoning by-laws are enacted make the establishment of a Zoning Board of Appeal 53 mandatory. In B r i t i s h Columbia, the Municipal Act, with the exception of the City of Vancouver, under Section 708(1) makes i t compulsory for a council which has adopted a zoning by-law to establish by by-law a Zoning Board of 12 Appeal of three members. II STRUCTURE OF THE ZONING BY-LAW A zoning by-law by very d e f i n i t i o n i s an act passed by a municipal council, under the provisions of enabling l e g i s l a t i o n . Its purpose i s to help in the implementation of a municipal plan, (or municipal planning policy where there i s no formally adopted plan). Robert M. Clark writing on "Zoning i n Canada" suggests that a zoning by-law usually contains at least three parts: One part consists of de f i n i t i o n s of the terms used i n the zoning by-law; another part underlines the delegation of powers to the o f f i c i a l s who are responsible for the enforcement of zoning by-laws and defines the procedures for appeals a r i s i n g out of enforce-ment of zoning by-laws; the t h i r d part consists of a series of schedules and regulations about the uses permitted i n 13 various zones. Different municipalities may divide their by-laws into d i f f e r e n t parts, which are not necessarily li m i t e d to the aforesaid three parts, but whatever the d i v i s i o n may be i t can be broadly considered under these three general parts. A zoning map i s an i n t e g r a l part of 54 14 the by-law. This map shows the boundaries within which the zoning by-law i s applicable. It i d e n t i f i e s a l l the dif f e r e n t d i s t r i c t s into which the zoning by-law divides the municipality and also d i f f e r e n t i a t e s between the land uses allowed i n each d i s t r i c t . The zoning map i s supple-mented by schedules which s p e c i f i c a l l y set out the uses which are permitted i n each d i s t r i c t . These schedules also contain regulations governing the height of buildings, the front and side yard requirements, and any other factors such as, o f f - s t r e e t parking, loading and unloading, b i l l -boards, etc. A l o c a l example w i l l be useful i n demonstrating the o v e r - a l l pattern of a zoning by-law. The Vancouver Zoning 15 & Development By-law No.3575 (hereafter known as the Vancouver Zoning By-law) i s divided into the following p ar t s: 1. Def i n i t i o n s 2. Administrative Section 3. Zoning D i s t r i c t s 4. Zoning D i s t r i c t Schedules 5. General Regulations 6. Special Provisions 7. Off-Street Vehicular Parking F a c i l i t i e s . 55 Section two of the Vancouver Zoning By-law contains d e f i n i t i o n s of many of the terms used therein. Sections three, seven and eight contain the administrative p r o v i -sions of the by-law including the development permit system. Section three of the Vancouver Zoning By-law makes i t the duty of the Director of Planning to carry out and enforce the provisions of the by-law and empowers him to make rules and regulations for the management of the Planning Depart-ment. Subsection two of Section three of the Vancouver Zoni By-law makes i t the duty of the Technical Planning Board to exercise on behalf of the Council such powers as are expressly delegated to i t under Sections seven, eight and nine of the by-law, subject to the condition that i n granting any relaxations pursuant to these powers the Board s h a l l adhere to the s p i r i t of the By-law. Section four of the by-law was concerned with any Appeal a r i s i n g out of the enforcement of the by-law, i t was repealed on 5th July, 1960 by the by-law No.3844 which established a Zoning Board of Appeal under provisions 572 and 573 of the Vancouver Charter The Director of Planning i s charged with the r e s p o n s i b i l i t y of enforcement of the Vancouver Zoning By-law, Sections f i v e and s i x contain enforcement and penalty provisions. The penalty provisions are authorized by Section 92(15) of the 17 B r i t i s h North America Act , wherein l o c a l authorities have 56 powers to impose penalties by way of f i n e or imprisonment i n respect of any l e g i s l a t i o n they are competent to pass. Section 571 of the Vancouver Charter also makes provisions 18 for the enforcement of the zoning by-law. This section pertains to injunctions which can procure e f f e c t i v e enforcement of the by-law but i t i s a costly and time consuming process to be p r a c t i c a l enforcement t o o l . Section ten contains the general regulations of the by-law and covers such things as projections into yards, main access to s i t e s , the number of p r i n c i p a l buildings allowed on a s i t e , fences, advertisements and signs. Section ten also contains, pro-tern, several regulations which are to be transferred to other by-laws because they are not considered to be zoning matters. Section eleven of the Vancouver Zoning By-law contains detailed s p e c i a l regulations c o n t r o l l i n g development of peculiar types of subdivisions, d e t a i l s regarding i n d u s t r i a l parks, d e t a i l s pertaining to l i v i n g accomadations i n basements of apart-ment buildings and similar other peculiar matters which are not otherwise covered elsewhere in the by-law. Sections twelve and thirteen of the Vancouver Zoning By-law prescribe requirements for o f f - s t r e e t parking, loading and unloading f a c i l i t i e s . Section fourteen of the by-law prescribes building l i n e s for many major streets in the City which are to be widened. 57 Draftsmanship & Interpretation The Supreme Court of Canada i n Augrignon v Bonnier, (1935) 1. D.L.R. 417 at 423, held that "effect must be given „ 19 to i t according to the common usage of men , the basis of t h i s view was that the language of the statute i s not the language of lawyers. But thi s does not mean the municipal zoning by-laws, and other enactments, may not follow the accepted rules of draftsmanship. In Sexton v Bates, i t was stated that " i n the construction of a municipal ordinance, words and phrases must be read and construed with the context and should be given their generally accepted meaning, according to the approved usage of the language."^° Although i t has been held that " j u d i c i a l notice cannot be taken of municipal zoning ordinance"^-*- which implies that these ordinances have to be pleaded and proved l i k e other facts, s t i l l the zoning (and other) by-laws have to follow the accepted rule s of draftsmanship. Precision i n the use of words and cautions, and harmonic incorporation of the new law with the ex i s t i n g law are important prerequisites of good draftsmanship. To achieve uniformity i n the drafting of l e g i s l a t i o n for minimizing interpretation problems, a 22 set of "Rules of Drafting" was recommended at the Confer-ence of Commissioners on Uniform L e g i s l a t i o n in Canada (in 1948). 58 The Leading Motive Section of any statute f a c i l i t a t e s and guides interpretation of statutes for the public, the administrators of delegated powers as well as the courts. The leading motive may pertain to o v e r a l l zoning or planning or administrative p o l i c y or may r e l a t e to a s p e c i f i c area. The object of the zoning by-law being the implementation of the intentions of the l e g i s l a t u r e , the best way of expressing that intention i s to have a statement i n the form of a Leading Motive section i n the beginning of the relevant section. In the interpretation of a zoning by-law, words in common use must be given their p l a i n and natural meaning in the absence of any showing that i n the enactment of such a by-law words and expressions contained therein were used i n 2 3 any other than the usual and ordinary sense. The zoning by-law, to be enforceable should be properly structured so as to leave no p o s s i b i l i t y of mis-interpretation. The City of Vancouver, i n the well known 24 Kalman Benko case, was not able to prosecute Kalman Benko, who was charged with the v i o l a t i o n of the zoning by-law, because of the f a u l t y construction of the zoning by-law. The judge i n t h i s case noted that ". . . whatever construction i s placed on the two by-law sections . . . they both f a l l 5 9 s h o r t o f n e c e s s a r y c l e a r , u n a m b i g u o u s i n t e n t r e q u i r e d i n any e n a c t m e n t d e p r i v i n g a p e r s o n o f a p r o p e r t y r i g h t . " ^ 5 The K a l m a n Benko c a s e d e r i v e d i t s l e g a l i t y t h r o u g h l o o p h o l e s c r e a t e d by d e f e c t i v e d r a f t s m a n s h i p o f t h e z o n i n g b y - l a w . F r a n k Sohn, i n an A m e r i c a n S o c i e t y o f P l a n n i n g O f f i c i a l s c l i n i c on Z o n i n g , s u g g e s t s t h e f o l l o w i n g g e n e r a l e s s e n t i a l s o f a z o n i n g b y - l a w : ( a ) M u s t be e a s y t o r e a d , s o t h a t a l a w y e r i s n o t r e q u i r e d t o i n t e r p r e t i t a t e v e r y s t a g e . ( b ) I t s h o u l d h a v e a c l o s e r e l a t i o n s h i p t o t h e , m a s t e r p l a n a n d s h o u l d h e l p t o b r i n g a b o u t i t s p r o v i s i o n s . ( c ) I t s h o u l d h e l p b r i n g a b o u t t h e p l a n n e d d e n s i t y o f p o p u l a t i o n i n a l l S e c t i o n s o f t h e C i t y . ( d ) I t s h o u l d p r e s e n t a l t e r n a t e p r o p o s a l s . ( e ) I t s h o u l d be f l e x i b l e w i t h r e g a r d t o d e s i g n , h e i g h t , s p e c i a l u s e s , t r a n s i t i o n a l u s e s , a n d i n d u s t r i a l z o n i n g . ( f ) I t s h o u l d be c o m p r e h e n s i v e . ( g ) I t s h o u l d p r o v i d e p r o t e c t i o n f o r a l l u s e s . ( h ) I t o f s h o u l d p r o v i d e n o n - c o n f o r m i n g f o r t h e g r a d u a l e l i m i n a t i o n u s e s . . . . ( j ) I t be s h o u l d p r o v i d e s u b m i t t e d when f o r p l a n s a n d e l e v a t i o n s t o z o n i n g c h a n g e s a r e r e q u e s t e d , w i t h p r o v i s i o n s f o r r e - s u b m i s s i o n i f any s u b -s t a n t i a l c h a n g e s a r e made. ( k ) I t s h o u l d embody r e q u i r e m e n t s f o r f l o o r a r e a r a t i o s f o r l o c a t i o n o f b u i l d i n g s on a l o t , r a t h e r t h a n r e q u i r i n g a u n i f o r m s e t b a c k l i n e a n d y a r d r e q u i r e m e n t s . 60 Besides these requirements, Sohn has suggested requirements for Indu s t r i a l and Residential Zoning By-laws, parking regulations, and for the administration of zoning. 27 An extract of these i s appended. Allen Fonoroff, i n an annual workshop seminar of the American Institute of Planners c i t e d inept draftsmanship as 28 a basic reason for the f a i l u r e of zoning. He suggested that "incompetent and careless planners, engineers, lawyers and others have seemingly dedicated their l i v e s to the cause 29 of turning words that have l i t t l e p r a c t i c a l a p p l i c a t i o n " Fonoroff further suggested that "Zoning can do much for i t i f i t i s based upon good planning, i f i t i s written c l e a r l y and unambiguously, and i f i t i s s p e c i f i c a l l y designed for the 30 c i t y ' s needs." It should be emphasized that a zoning by-law cannot improve bad zoning or bad planning, and that a zoning by-law i s only as good as are the objectives and p r i n c i p l e s of planning upon which i t i s based. I l l OPERATION OF THE ZONING BOARD OF APPEAL In the Province of B r i t i s h Columbia, a Zoning Board of Appeal operates under the authority of the B r i t i s h Columbia 31 Municipal Act, Section 708 of the Municipal Act s p e c i f i e s 61 that the Zoning Board of Appeal s h a l l be comprised of three 32 members: one appointed by the municipal council; one appointed by the Lieutenant-Governor in Council; and a Chairman, who s h a l l be appointed by these f i r s t two members. No spe c i a l q u a l i f i c a t i o n s are demanded of the members; the current composition of the Boards indicates that the members are generally drawn from the business community. Section 708(3) r e s t r i c t s any members of the Advisory Planning Commission of the municipality or any of i t s employees from being appointed as a member of the Zoning Board of Appeal. 33 The tenure of membership on the Board i s three years. While a member can be removed, further reappointment i s also permissible. It i s provided by Section 708(4) that two members of the Board s h a l l constitute a quorum. In order for the two who s i t to constitute a body competent to hear the appeal before i t , the following conditions must be s a t i s f i e d : * ^ (a) no member of the Board must be, by any provision of the enabl ing l e g i s l a t i o n , d i s -. q u a l i f i e d from so s i t t i n g ; and (b) no member thereof must be, by reason of his own peculiar interest i n the subject of the appeal, d i s e n t i t l e d for hearing and deciding such appeal. 62 Section 708(9) of the Municipal Act makes i t the duty of the Zoning Board of Appeal to set out i t s own procedure in respect of the operation of the Board. This section gives a t o t a l l y free hand to the Board to set out the pro-cedure to be followed including the manner i n which appeals are to be lodged and the issuance of notices. One fact to. be noted here i s that there i s no s t i p u l a t i o n to the effect that the procedure adopted by the Zoning Board of Appeal has to be approved by any l o c a l or p r o v i n c i a l authority. No general format or instructions are provided for the formula-ti o n of the procedure; th i s i s t o t a l l y l e f t in the hands of the members who, i t may be said without any prejudice, may not be capable of devising a procedure which i s most e f f i c i e n t . The Ambit of J u r i s d i c t i o n of the Zoning Board of Appeal: The ambit of j u r i s d i c t i o n of the Zoning Board of Appeal i s determined by Section 709 of the Municipal Act: Section 709(1) The Zoning Board of Appeal s h a l l hear and determine any appeal (a) by a person who i s aggrieved by a decision of any o f f i c i a l charged with the enforcement of a zoning by-law or a by-law under Section (5) of Section 711 i n so far as that decision r e l a t e s to an interpretation of the by-law or by-laws or any portion thereof; and 63 (c) by an'applicant for a permit who alleges that . enforcement of a zoning by-law with respect to s i t i n g , s i z e , or shape of a building or of a structure would cause him undue hardship, i n which case the effect to i t s determination, exempt the applicant and subsequent owners of the building or structure from the applicable provisions of the zoning by-law; and (2) N o t i f i c a t i o n of the appeal s h a l l be given by the Board to the owners and occupiers of a l l r e a l property located adjacent to the property with respect to which the appeal i s being heard, and public notice of the hearing s h a l l be given i f the manner i s deemed by the Board to be of s u f f i c i e n t importance. (3) The decision i n writing of a l l or of a majority of the members of the Board i s the decision of the Board. 3 6 It i s submitted, that, as with any municipal enabling l e g i s l a t i o n , the language of the statute i s not the language of lawyers and that "effect must be given to i t according to 37 the common usage of men." On t h i s premise, with the exception of subsection 709(1)(c), the intention of the Legislature, i n defining the ambit of j u r i s d i c t i o n of the Zoning Board of Appeal has been c l e a r l y expressed. Section 709(1) (c) i s of pot e n t i a l importance, because i t i s out of the provisions of t h i s subsection that the j u r i s d i c t i o n of the Zoning Board of Appeal to allow or d i s -allow appeals i s derived. At t h i s point i t i s pertinent to consider p a r a l l e l provisions provided under Section 573(2) of the Vancouver Charter: 64 The Board s h a l l not allow any appeal s o l e l y on the ground that i f allowed the land or buildings in question can be put to a more p r o f i t a b l e use nor unless the following conditions e x i s t : (a) The undue or unnecessary hardship arises from circumstances applying to the applicant's property only; and (b) The s t r i c t application of the provisions of the by-law would impose an unreasonable r e s t r a i n t or unnecessary hardship on the use of the property inconsistent with the general purpose and intent of the zoning by-law; and (c) The allowance of the appeal w i l l not disrupt the o f f i c i a l development plan. 3** On i n i t i a l comparison of these two sections i t i s apparent that the Section 709 (1 )(c) leaves the Board with vague j u r i s d i c t i o n as to the interpretation of the term "undue hardship". Besides t h i s i t i s short and too general as compared with the above quoted Section 573(2) of the Vancouver Charter. From Section 573(2) i t i s apparent that the fact that lands or buildings which are subject to the appeal could be put to a more p r o f i t a b l e use i n the event that the appeal allowed, i s not, per se, to contribute a basis of appeal. Thus, the Board may disallow an appeal i f 39 i t finds that a pecuniary loss i s the basis of the appeal. On the other hand, i t may not be accepted that the facts of such loss may absolutely not be considered by the Board as a factor i n the appeal. The only r e s t r i c t i o n i s that t h i s should not be the sole factor. 65 It may be pointed out that the Municipal Act does not sti p u l a t e any conditions to the allowance of an appeal as are l a i d down in subsections (a), (b) , and (c) of Section 573(2) of the Vancouver Charter. The Zoning Board of Appeal has complete d i s c r e t i o n i n determination of these conditions. The Question of Undue or Unnecessary Hardship: The question of what constitutes "undue or unnecessary hardship", which i s to be proved by the appellant, has neither been s a t i s f a c t o r i l y defined i n any l e g i s l a t i o n nor been p a r t i c u l a r i z e d i n any reported decision of a Canadian Court. The following condensation from important court decisions may be accepted as a good workable d e f i n i t i o n : The application of the unnecessary doctrine i s not governed s o l e l y by the siz e of the area or p a r t i -cular piece of property upon which the unnecessary hardship i s imposed. No single factor determines what constitutes unnecessary hardship, but a l l relevant factors, when taken together, must indicate that the sp e c i a l conditions are such that the property affected cannot reasonably be put to a conforming use because of the l i m i t a t i o n imposed upon i t by reason of the c l a s s i f i c a t i o n i n which i t i s placed in terms of the ordinance (by-law).^0 It may be noted that the Municipal Act does not mention any conditions as are mentioned i n subsection (a), (b), and (c) of Section 573.(2) of the Vancouver Charter. The Vancouver Charter i n Section 573(2)(c) requires that the relaxation granted should be i n harmony with the purpose and intent of 66 the o f f i c i a l development plan. For example, a relaxation would not be allowed i f i t s r e s u l t would be the disruption of the es s e n t i a l character of the neighbourhood which i t 41 was the object of the by-law to preserve. The power to grant appeal from the s t r i c t adherence of the zoning by-law should be exercised sparingly by the Zoning Board of Appeal, although extensive d i s c r e t i o n i s given to i t by the enabling l e g i s l a t i o n . This power must be exercised within i t s ambit of j u r i s d i c t i o n and, a f o r t i o r i , within the s p i r i t and intent of the zoning by-law i t s e l f . IV PRINCIPLES OF JUDICIAL REVIEW AS APPLICABLE TO THE ZONING BOARD OF APPEAL For a l l intents and purposes, the Zoning Board of Appeal functions as an independent q u a s i - j u d i c i a l body and 42 enjoys q u a s i - j u d i c i a l powers and i s bound by the rules of-natural j u s t i c e concerning procedural requirements that have to be observed by any authority acting i n a j u d i c i a l manner. Two basic p r i n c i p l e s of natural j u s t i c e are: ( i ) Audi Alteram Partem which means that the contesting parties must be given adequate notice and opportunity to be heard; and ,(ii) Nemo Judex i n Causa Sua Potest which means that the adjudicators must be disinterested and unbiased. 67 The "Audi Alteram Partem" p r i n c i p l e i s a basic requirement of the process of administrative adjudication. The following quotation i l l u s t r a t e s the importance of t h i s p r i n c i p l e : No proposition can be more c l e a r l y established than that a man cannot incur the loss of l i b e r t y or property for an offence by a j u d i c i a l pro-ceeding u n t i l he has had a f a i r opportunity of answering the case against him, unless indeed the Legislature has expressly or impliedly given an authority to act without that necessary pr e l i m i n a r y .4 3 The statutory procedure for appealing from the provisions of the zoning by-law, which involves quasi-j u d i c i a l hearings, takes into consideration the "audi alteram parten" r u l e : Natural Justice i s said to demand, not only that those whose interests may be d i r e c t l y affected by an act or decision should be given prior notice and an adequate opportunity to be-heard, but also that the tribunal should be disinterested and impartial.^ 4 In order than public confidence i n the administration of j u s t i c e be f u l l y maintained, no one with an interest i n contract i s allowed to adjudicate i n the proceedings. In the d i s q u a l i f i c a t i o n of j u d i c i a l o f f i c e r s for interest and bias, the p r i n c i p l e has been applied that " i t i s of funda-mental importance that j u s t i c e should not only be done, but should manifestly and undoubtedly be seen to be done." 68 The rules of natural j u s t i c e are not r i g i d norms of unchanging content. Each of these two main rules may vary in their application according to the context. Several p r i n c i p l e s govern exercise of the d i s c r e -tionary powers enjoyed by the Zoning Board of Appeal. These have been summarized as: The authority i n which a d i s c r e t i o n i s vested can be compelled to exercise t h i s d i s c r e t i o n , but not exercise i t in a p a r t i c u l a r manner. In general, a d i s c r e t i o n must be exercised only by the authority to which i t i s committed. The authority must genuinely address i t s e l f to the matter before i t : i t must not act under the d i c t a t i o n of another body or disable i t s e l f from exercising a d i s c r e t i o n i n each i n d i v i d u a l case. In the purported exercise of i t s d i s c r e t i o n i t must not do what i t has been f o r -bidden to do, nor must i t do what i t has not been authorized to do. It must act i n good f a i t h , must have regard to a l l relevant considerations and must disregard a l l irrelevant considerations, must not seek to promote purposes a l i e n to the l a t t e r or to s p i r i t of the l e g i s l a t i o n that gives i t power to ^„ act, and must not act a r b i t r a r i l y or c a p r i c i o u s l y . These p r i n c i p l e s may be grouped into two broad categories: f a i l u r e to exercise a d i s c r e t i o n ; and abuse or excess of discretionary power. It i s a well known p r i n c i p l e of law that when a person i s entrusted with a power on clear i n d i c a t i o n that trust i s being placed i n his i n d i v i d u a l judgment and discre-ti o n , he must exercise that power personally unless he has 6 9 been expressly empowered to sub-delegate i t to another. The p r i n c i p l e i s popularly expressed i n the form of a , 47 maxim delegatus non potest delegare ( s i c ; . On the basis of t h i s maxim, the Zoning Board of Appeal which appoints a secretary who enjoys the discretionary power of sending the necessary notices about the hearings of the Board contra-venes the maxim delegatus non potest delegare. The secretary actions under these circumstances may be held u l t r a v i r e s . There are also some remedies available for j u d i c i a l review. J u d i c i a l Review Remedies: . . . are the means by which the Court exercises a supervisory j u r i s d i c t i o n over i n f e r i o r and statutory tribunals and keeps them within the l i m i t s of the powers conferred on them by statute. 4° There are a number of statutory remedies available to an agrrieved party: The prerogative writs; common law remedies; equitable remedy; and the se l f - h e l p remedy. The most popular are the prerogative writs, namely: 4 9 A Writ of C e r t i o r a r i , which requires that the matter be taken before a higher court where a writ i s granted to quash j u d i c i a l decision because i t i s u l t r a v i r e s . A Writ of Pr o h i b i t i o n , which prevents an.inferior court or t r i b u n a l from making an u l t r a vires decision. 70 A.Writ of Mandamus, where the superior court orders an i n f e r i o r court or t r i b u n a l to carry out i t s statutory duty. These writs can only be used where j u d i c i a l or quasi-j u d i c i a l decisions are involved. An injunction i s an order r e s t r a i n i n g the continuance of an offence which i s i n v i o l a -51 t i o n of a by-law or a t r i b u n a l decision. A s e l f - h e l p remedy i s one where the aggrieved person simply c a r r i e s on 52 the alleged offence u n t i l an injunction i s served. V IMPLICATIONS OF THE DECISIONS OF ZONING BOARD OF APPEAL ON THE FORMULATION AND IMPLEMENTATION OF PLANNING POLICY Zoning and other forms of land use control have estab-li s h e d their usefulness through public, l e g a l and constitu-t i o n a l recognition. Based on a review of the history of development of zoning as a land use control i t i s apparent that i t s effect on planned development i s dependent upon e f f e c t i v e enforcement. A well considered zoning by-law e f f i -c i e n t l y enforced i s apt to achieve the objectives on which the by-law i s based. . Delafons writing on "Land Use Controls in the United States" states that: Where reasonable c o n t r o l s have been adopted and are w e l l a d m i n i s t e r e d (emphasis added), they do undoubtedly r e s u l t not o n l y i n a sound standard of development and an absence of c o n f l i c t i n g uses, but a l s o i n s t a b i l i t y of neighbourhood c h a r a c t e r and maintenance of p r o p e r t y v a l u e s . On the other hand, i t i s widely f e l t that a p o o r l y admin-54 i s t e r e d zoning by-law i s worse than having no zoning at a l l . In the a d m i n i s t r a t i o n of a zoning by-law the p l a n n i n g department does not enjoy any d i s c r e t i o n a r y powers beyond those mentioned i n the by-law. On the p a r t of t h i s depart-ment, t h e r e f o r e , the o n l y p o s s i b l e charge of m a l a d m i n i s t r a t i o n c o u l d be e i t h e r t a r d i n e s s of p r o c e s s i n g or improper e n f o r c e -ment. The Zoning Board of Appeal enjoys d i s c r e t i o n a r y powers i n g r a n t i n g r e l a x a t i o n s to round o f f the sharp c o r n e r s of zoning requirements i n cases of undue or unnecessary hardship a r i s i n g out of the enforcement of a zoning by-law. These r e l a x a t i o n s a r i s e out of the i m p l i c a t i o n s not f o r e s e e n at the time of f o r m u l a t i o n of the by-law. In g r a n t i n g r e l a x a t i o n s , however s m a l l these may be, the Zoning Board of Appeal p l a y s two important r o l e s i n the p l a n n i n g p r o c e s s : the f i r s t r o l e i s a p o s i t i v e r o l e , wherein the r e l a x a t i o n s granted by the Board are both compatible with the o b j e c t i v e s of the zoning by-law as w e l l as a source of r e l i e f to an aggrieved person; the second r o l e i s a n e g a t i v e one, wherein the r e l a x a t i o n s granted p r o v i d e r e l i e f although 72 55 they may also create new problems of land use. A further review of these two roles w i l l be he l p f u l i n analyzing the influence of the decisions of the Zoning Board of Appeal on the formulation and implementation of a municipal planning p o l i c y . It i s well recognized that a p o s i t i v e relaxation, must be based on: proved hardship in making a reasonable use of one's property under s t r i c t enforcement of the by-law; hardship which i s not self- c r e a t e d through carelessness etc.; or hardship which i s not based s o l e l y on economic grounds. A p o s i t i v e relaxation not only requires proof of unique c i r -cumstances but also requires a s a t i s f a c t i o n that i t ' s award w i l l not effect the general character of the neighbourhood. The Ontario Department of Planning and Development, i n laying down 'Principles to ass i s t Committees of Adjustment' embodied a l l the necessary elements leading towards p o s i t i v e 56 relaxations. As opposed to p o s i t i v e relaxations, negative relaxa-57 tions involve favouritism, corruption etc., Even assuming that the Zoning Board of Appeal and i t s members function honestly, negative relaxations may be granted innocently. This innocent action may be due to a lack of understanding of the objectives of zoning or of the underlying planning p o l i c i e s involved. Another reason could be ambiguity i n the by-law, or a lack of adequate rules of procedure governing the operation of the Zoning Board of Appeal to ass i s t i t i n reaching a just decision. Sporadic and incompatible relaxations may re s u l t out of such decisions. Most Planners f e e l that "the Boards overstep their l e g a l authority and do not f u l l y understand the point of view 59 of the planner. , The occurrence of these negative relaxa-tions has also made the planners f e e l that "most Zoning Board of Appeal members know l i t t l e or nothing about planning, and 60 frequently care l e s s . " In granting negative relaxations the Zoning Board of Appeal undermines the effectiveness of zoning by-law. If the Board grants a relaxation when the circumstances do not support i t , i t i s i n effect rezoning and usurping the power of l e g i s l a t i o n . In Walter Blucher's opin-ion " f i f t y percent of a l l of the rulings of Zoning Boards of Appeals i n the United States are probably i l l e g a l usurpations 61 of power." Such actions not only hamper the implementation of a planning p o l i c y but have a deteriorating e f f e c t on the neighbourhood. John Reps suggests that " c e r t a i n l y the granting of u n j u s t i f i e d permits (relaxations) i s one of the causes of 62 urban bligh t and decay in ex i s t i n g neighbourhoods." He also i s of the opinion that "granting of only a few unwarrante permits (relaxations) i n undeveloped areas may also prevent sound growth at the c i t y ' s f r i n g e . " It i s apparent that 74 these n e g a t i v e r e l a x a t i o n s not o n l y are dangerous f o r the p r e s e n t ; but that they can a l s o a f f e c t the f u t u r e . Most of the Zoning Boards of Appeal c o n s i d e r t h a t they are not concerned with p l a n n i n g p o l i c y or p r i n c i p l e s , r a t h e r that t h e i r primary purpose i s to d e a l with cases a r i s i n g out of unnecessary or undue hardship and to see that j u s t i f i e d r e l i e f i s p r o v i d e d . With t h i s view the Boards may not care i f the r e l a x a t i o n , p r o v i d e d i s p o s i t i v e or n e g a t i v e . But i t s h o u l d be remembered that these Boards f u n c t i o n i n a q u a s i -j u d i c i a l c a p a c i t y and as such have to adhere to the norms of j u s t i c e . In a review of "Zoning A d m i n i s t r a t i o n i n I l l i n o i s " i t was mentioned that zoning cases do not r e q u i r e a j u d i c i a l d e t e r m i n a t i o n of the law but need an a n a l y s i s of the f a c t i n 64 terms of sound p l a n n i n g p o l i c y . The d e c i s i o n s based on the r u l e s of n a t u r a l j u s t i c e with due c o n s i d e r a t i o n of p l a n n i n g p o l i c y adopted by a m u n i c i p a l c o u n c i l are apt to be i n the form of p o s i t i v e r e l a x a t i o n s . In order to grant p o s i t i v e r e l a x a t i o n s , as against the n e g a t i v e ones, a Zoning Board of Appeal should develop standards which are necessary to p r o t e c t the i n t e g r i t y of the zoning by-law. They sh o u l d make sure they do not attempt to improve the e f f e c t s of a bad law by g r a n t i n g r e l a x a t i o n s from i t . I f a Board c o n s i d e r s that i t s zoning by-law i s d e f e c t i v e i t s h ould recommend i t s l e g i s l a t i v e amendment. 7 5 By granting p o s i t i v e relaxations the Boards not only dispense j u s t i c e but also f a c i l i t a t e the process of imple-mentation of a municipal plan or a municipal planning p o l i c y . Although the Zoning Board of Appeal does not have any power to l e g i s l a t e and as such to amend the by-law, i t ean help the municipality to formulate a better implementation p o l i c y for implementing i t s planning p o l i c i e s . It can point out ambiguities in the content of the zoning by-law, and clashes of zoning objectives with popular public demands and the rules of natural j u s t i c e . It can also advise planning department about the popular demands of the public as r e l a t e d to the uses of land. VI SUMMARY The c o n s t i t u t i o n a l authorization leading to the creation of a Zoning Board of Appeal i s based on the p r a c t i c a l i m p o s s i b i l i t y of preparing a zoning by-law which w i l l deal with a l l property and uses thereof and s t i l l avoid undue or unnecessary hardship i n i n d i v i d u a l cases. In the absence of any r e l i e f for a j u s t i f i e d hardship, a by-law may be declared u l t r a v i r e s . The Zoning Board of Appeal functions as an independent q u a s i - j u d i c i a l body under the rules of natural j u s t i c e and derives i t s j u r i s d i c t i o n from p r o v i n c i a l enabling l e g i s l a t i o n . The purpose of a Zoning Board of Appeal i s to consider interpretations of the requirements of a zoning 76 by-law by p r o v i d i n g r e l a x a t i o n s i n cases of hardship which may a r i s e due to ambiguity i n the zoning by-law or due to p e c u l i a r circumstances of c e r t a i n property. While a Zoning Board of Appeal should p r o t e c t the i n t e g r i t y of a zoning by-law by p r o v i d i n g j u s t i f i e d r e l i e f , i t should not t r y to improve t h e d e f f e c t s of a bad law. By g r a n t i n g r e l a x a t i o n a Zoning Board of Appeal may grant two types of r e l a x a t i o n s , p o s i t i v e and negative. P o s i t i v e r e l a x a t i o n s are those which are not only i n t r a v i r e s i n p r o v i d i n g r e l i e f to an aggrieved party but al s o help i n the implementation of a municipal p l a n or planning p o l i c y by f a c i l i t a t i n g the a d m i n i s t r a t i v e a c t i o n by p r o v i d i n g compatible r e l i e f . Negative r e l a x a t i o n s on the other hand have j u s t the opposite e f f e c t ; these may provide r e l i e f to some i n d i v i d u a l s , but at the same time they may be harmful to the community. In a sense, a negative r e l a x a t i o n does more harm than good. Such r e l a x a t i o n s do not complement the planning process, r a t h e r they create doubts about the value of planning f o r a community. The Zoning Board of Appeal not only helps i n the implementation of planning p o l i c i e s through the gran t i n g of p o s i t i v e r e l a x a t i o n s but a l s o i n f l u e n c e s t h e i r f o r m u l a t i o n by making c o n s t r u c t i v e recommendations based on i t s d a i l y experience i n d e a l i n g with zoning matters. FOOTNOTES 77 1 E.A. Driedger, The B r i t i s h North America Acts, 1867  to 1960, (Ottawa: The Queen's Pri n t e r , 1964). 2 Ibid., Section 92( ). 3 Ibid., Section 92( ). 4 This i s discussed more elaborately i n part IV of t h i s chapter. 5 The City of Toronto v Presswood Brothers (1943) O.R., p.681, also (1944) O.R., p.145. 6 In t h i s regard see Vancouver Charter ( V i c t o r i a : The Queen's Pri n t e r , 1956), Section 573(1) and Section 573(2). 7 Van Auken v Kimmey (1930) 252 NYS 329-41 (New York Supreme Court). 8 Locus Standi means a le g a l capacity to challenge an act or decision. Also see S.A. de Smith, J u d i c i a l Review of  Administrative Action, (London: Stevens & Sons Ltd., 1959), p.308. 9 Ibid., p.425. 10 Regina v Thomson (1957) 9 D.L.R. 107. 11 James B. Milner, Community Planning, A Casebook of Law and Administration (Toronto: The University of Toronto Press, 1963), p.688. 12 Province of B r i t i s h Columbia, The Municipal Act ( V i c t o r i a : The Queen's Pri n t e r , 1964), RSBC 1960, Chapter 255, Section 709(1). 78 13 Robert M. Clark, "Zoning in Canada", Ontario  Planning, Vol.5. No.I (January, 1958), p.4. 14 • Ibid. 15 City of Vancouver, Zoning & Development By-law  No.3575 (Vancouver: The City of Vancouver, 1956). 16 Ibid., p.223. 17 Driedger, op. c i t . , p. 18 Ibid. 19 Augrinon v Bonnier (1935) 1. D.L.R., 417 at 423. 20 Sexton v Bates 85A(2d), p.833. 21 Boyle v Building Inspector of Maiden, 99NE(2d), p.925, also, Gaunt v Board of Appeals, 184 Mass.598. 69N.E., p. 350": 22 The Conference of Commissioners on Uniformity of Le g i s l a t i o n i n Canada, Rules for Drafting, as c i t e d i n James B. Milner, Cases and Materials on the Law and Adminis- t r a t i o n of CommunTty Planning (Toronto: The University of Toronto Press, 1958), Vol. I, p.164. 23 K i l l i a n v Brith Sholom Congregation, 154 S.W.(2d) p.387. 24 Regina v Kalman Benko, an unreported case of October 12, 1962, Vancouver Magistrate's Court (Magistrate, A. L. Bewley). 25 Ibid. 79 26 Frank Sohn, " C l i n i c on Zoning", Planning 1953, (Chicago: American Society of Planning O f f i c i a l s , 1953), p.122. 27 . Ibid., p.128 28 Allen Fonoroff, "Zoning: Alternatives to an Over-worked Tool", American Inst i t u t e of Planners, Annual  Proceedings, 1960, p.84. 29 Ibid. 30 Ibid., p.85. 31 Ibid. 32 Ibid., Section 708, p.3239. 33 Ibid., Section 708(2), p.3240. 34 Ibid". 35 Ladies of the Sacred Heart of Jesus (Convent of the Sacred Heart) v Armstrong's Point Association and Bulgin (.1961) 29 D.L.R. (2d), p. 373. 36. , Ibid. 37 . , Angrignon v Bonnier (1935) I. D.L.R., p.417, (Supreme Court of Canada). 38 Ibid., p.216. 39 Young Women's Hebrew Association et. a l . v Board of  Standards and Appeals of the City of New York (.1935) 194 N.E. , p.751 (New York Court of Appeals). 80 40 City of East Chicago v S i n c l a i r Refining Co., 111 N.E.2d.459-64; Brackett v Board of Appeal Building Department, 1942,.311 Mass.52; 39N.E.2d,956; St. Onge v City of Concord, 1949, 95 NH 306, 63A.2d, 221, 223. 41 City of Toronto v Williams (1944) O.R. , p.145. 42 Re Harron's Appeal (1954) 28 W.W.R., p.364. 43 Ian Rogers, The Law of Canadian Municipal Corporations (Toronto: The Carswell Co., Ltd., 1959), Vol. I, p.103. 44 Ibid., p.137. 45 Ibid., p.140. 46 de Smith, op. c i t . , p.172. 47 Ibid.., p. 173. 48 F. A.. Brewin, "The extraordinary Remedies", The Law  Society of Upper Canada (Lectures), (Toronto: Richard deBoo Ltd., 1961), p.273. 49 . de Smith, op. c i t . , pp.271-322. 50 Ibid. 51 Ibid.., pp. 323-66. 52 William T. Lane, Class Lectures on Local and Regional  Planning Administration (Vancouver: University of B r i t i s h Columbia, D i v i s i o n of Community & Regional Planning, 1965). 53i . . Delafons, op. c i t . , p.82. 81 54 Ibid. 55 John W. Reps, "Discretionary Powers of the Board of Zoning Appeals", Law and Contemporary Problems, Vol. 20, No.2, p.282.. 56 Ontario Department of Planning and Development, "P r i n c i p l e s to Assist Committees of Adjustment", Ontario  Planning, Vol.3, No.6 (July, 1956), p.5. (See Appendix I I ) . 57 Calvin S. Hamilton, "Zoning Administration", Planning 1962, (Chicago: American Society of Planning O f f i c i a l s , 1962), p.71. 58 Martin J. Rody and Herbert H. Smith, Zoning Primer, (West Trenton, N.J.: Chandler-Davis Publishing Co., 1960), p.29). 59 Reps, op. c i t . , p.282. 60 Ibid. 61 . Walter H. Blucher, "Is Zoning Wagging the Dog", Planning 1955, (Chicago: American Society of Planning O f f i c i a l s , 1955), p.100. 62 Reps, op. c i t . , p.282. 63 Ibid. 64 Richard F. Babcock, "Zoning Administration i n I l l i n o i s " , The University of Chicago Law Review, Vol. 26, No.4, 1959, p.539. CHAPTER IV THE ADMINISTRATION OF SELECTED ZONING BOARDS OF APPEAL: A CASE STUDY IN THE VANCOUVER, B. C., METROPOLITAN AREA The preceding chapters have presented a general back-ground for the development of the thesis. The early objec-ti v e s of zoning i n North America have been reviewed in order to d i f f e r e n t i a t e them from the contemporary concept, which has caused zoning to become a potential instrument i n the implementation of municipal long range plans and planning . p o l i c i e s . The creation of a Zoning Board of Appeal, c o n s t i -tuting a safety valve i n the enforcement of a municipal zoning by-law, and the influence of i t s decisions on the formulation and implementation of a municipal plan or plan-ning p o l i c y have been reviewed. The hypothesis of t h i s thesis that "a p o s i t i v e -statement of zoning objectives and planning p r i n c i p l e s together with a uniform set of procedures to be followed by the Zoning Board of Appeal i s necessary for e f f e c t i v e implementation of municipal planning p o l i c y " i s tested i n t h i s chapter, through data and information gathered from three selected Zoning Boards of Appeal in the Vancouver Metropolitan Area of B r i t i s h Columbia. A d e f i n i t i o n of the objectives and methods of the case study are explained. The existing conditions and problems involved in the operation 83 of t h r e e s e l e c t e d Zoning Boards of Appeal are analyzed. Standards of j u d i c i a l review and c o n s i s t e n c y i n d e c i s i o n s as r e l a t e d to p l a n n i n g and zoning o b j e c t i v e s are analyzed through r e l e v a n t r e c o r d s of the s e l e c t e d Boards, and these data are supplemented by i n t e r v i e w s with the members of these Boards and o f f i c i a l s of m u n i c i p a l p l a n n i n g departments. I THE OBJECTIVES AND METHOD OF INVESTIGATION The o b j e c t i v e of t h i s Case Study i s to t e s t the a f o r e -s a i d h y p o t h e s i s , with the u l t i m a t e purpose of e s t a b l i s h i n g i t s v a l i d i t y . The primary o b j e c t i v e i s to analyze the domi-nant f e a t u r e s of the Zoning Board of Appeal. The a n a l y s i s i n c l u d e s e v a l u a t i o n o f : the e f f e c t i v e n e s s of the Zoning Board of Appeal i n the d i s p e n s a t i o n of j u s t i c e i n cases a r i s i n g out of undue or unnecessary hardship; i t s e f f e c t i v e n e s s i n the f o r m u l a t i o n and implementation of a m u n i c i p a l p l a n or p l a n n i n g p o l i c y ; the types of d e c i s i o n s made and c o n s i s t e n c y i n these d e c i s i o n s as r e l a t e d both to the p r i n c i p l e s of n a t u r a l j u s t i c e , and the zoning and p l a n n i n g o b j e c t i v e s . I t has been a l l e g e d that i n the a d m i n i s t r a t i o n of a zoning by-law "the worst aspect of the appeal machinery i s the lac k of proper procedure f o r the conduct of h e a r i n g s . " 1 In order to judge c o n s i s t e n c y i n the o p e r a t i o n of a Zoning Board of Appeal, the procedure f o l l o w e d by each Board i s examined. I t i s o n l y by such a n a l y s i s that one can a p p r e c i a t e the u s e f u l n e s s as w e l l as 84 the shortcomings of the Zoning Board of Appeal as a t o o l i n the f o r m u l a t i o n and implementation of a m u n i c i p a l p l a n or p l a n n i n g p o l i c y . The Method of I n v e s t i g a t i o n For t h i s Case Study the i d e a l method of i n v e s t i g a t i o n would have been to analyze the a f o r e s a i d c h a r a c t e r i s t i c s of the Zoning Boards of Appeal f o r a l l the m u n i c i p a l i t i e s of the Vancouver M e t r o p o l i t a n Area. But t h i s was not p o s s i b l e due to the l i m i t a t i o n s of time a v a i l a b l e . I t was t h e r e f o r e c o n s i d e r e d to be a p p r o p r i a t e to do a more i n t e n s i v e a n a l y s i s of a few r e p r e s e n t a t i v e Boards. For the s e l e c t i o n of a r e p r e s e n t a t i v e sample, i t was kept i n mind that " c a r e f u l d e f i n i t i o n of the u n i v e r s e and the o b s e r v a t i o n s , and the s i g n i f i c a n t r e l a t i o n s h i p between them, i s the c o r n e r s t o n e of 2 p l a n n i n g f o r r e p r e s e n t a t i v e n e s s . " The s e l e c t i o n of a sample depends on the theory of p r o b a b i l i t y , as the c o n c e p t i o n of p r o b a b i l i t y r e l a t e s to the amount of knowledge of the s t a t e -3 ment whose probable t r u t h i s under e v a l u a t i o n . For the purpose of t h i s study the s t r a t i f i e d sampling method, which allows the use of a s m a l l e r sample with 4 p r e c i s i o n was adopted. Though a s t r a t i f i e d sample i s r e p r e -s e n t a t i v e , i t has to be adequate so as to "allow c o n f i d e n c e i n the s t a b i l i t y of i t s c h a r a c t e r i s t i c s . " Keeping these b a s i c e s s e n t i a l s i n mind, three Zoning Boards of Appeal were 85 selected from those operating in the Vancouver Metropolitan Area. . These Boards represent the Municipal Corporations of the City of Vancouver, the D i s t r i c t of Richmond, and the City of North Vancouver. These Boards represent a s t r a t i f i e d sample to j u s t i f y reaching a generally applicable conclusion, but as such do not unduly narrow the scope of the thesis. These Boards represent respectively: 1. A r e l a t i v e l y large central c i t y , i n a metropolitan area, having a population of about 400,000 and an area of 28,700 acres. The c i t y i s incorporated under a s p e c i a l charter that e n t i t l e s i t to enact l e g i s l a t i o n under power granted to i t . This c i t y has an e f f i c i e n t planning department. (Vancouver) 2. A small d i s t r i c t municipality within the Vancouver Metropolitan Area, having a popula-t i o n of about 50,000 and an area of 41,529 acres. It has a small but well organized planning department. (Richmond) 3. A suburban c i t y , having a population of about 25,000 and an area of 3131 acres. It has no planning department although i t i s facing a boom i n construction and subdivision development. (North Vancouver) These three areas are indicated on the location map, Figure I, page 13. The investigation i s divided into three parts: the f i r s t part consists of a review of the operation of the selected Zoning Boards of Appeal; the second part i s r e l a t e d to interviews held with the members of the selected Zoning 86 Boards of Appeal; and the t h i r d part i s comprised of an. analysis of interviews held with the municipal, o f f i c e r s concerned with the enforcement of the zoning, byr-law i n each municipality. Analysis of the operation of the selected Boards revealed the constitution, c h a r a c t e r i s t i c s of cases heard, and the type and extent of relaxations granted by each Board. An attempt was made i n the analysis to determine whether the decisions made by these Boards were consistent i n respect to supporting p r i n c i p l e s of natural j u s t i c e , and with respect to supporting zoning and planning objectives of a municipal plan or planning poli c y . Individual interviews with the members of the selected Zoning Boards of Appeal were completed with the help of a mailed questionnaire (see Appendix III) which was very c a r e f u l l y prepared. This questionnaire was tested with some experienced respondents and revised before f u l l .applica-ti o n . The purpose of this'questionnaire was to obtain the members* points of view with respect to the operation of the Boards and also to ascertain their attitude towards municipal planning and zoning objectives generally. The municipal o f f i c i a l s responsible for enforcement of the zoning by-law were.interviewed personally i n order to determine their attitudes to the Zoning Board of Appeal, i t s operation and function i n the implementation and formulation of a municipal 87 p l a n or p l a n n i n g p o l i c y . I n a d d i t i o n a number o f h e a r i n g s o f Z o n i n g B o a r d s o f A p p e a l were a t t e n d e d i n o r d e r t o become f a m i l i a r w i t h t h e i r a c t u a l o p e r a t i o n . S e v e r a l s i t e s w h i c h f o r m e d t h e b a s i s f o r z o n i n g a p p e a l s were i n s p e c t e d t o e v a l u a t e t h e e x t e n t , and e f f e c t o f r e l a x a t i o n s on t h e z o n i n g and p l a n n i n g o b j e c t i v e s . The m i n u t e s o f t h e p r o c e e d i n g s and o t h e r f i l e s o f e a c h B o a r d were u s e d t o g a t h e r i n f o r m a t i o n r e g a r d i n g t h e number and c h a r a c t e r i s t i c s o f a p p e a l s t o each B o a r d . I I THE OPERATION OF THE ZONING BOARD OF APPEAL The o p e r a t i o n o f a Z o n i n g B o a r d o f A p p e a l has been d i s c u s s e d i n g e n e r a l i n t h e p r e v i o u s c h a p t e r . I n t h i s Case S t u d y , an i n v e s t i g a t i o n i n t o t h e c o n s t i t u t i o n and o p e r a t i o n o f t h e t h r e e s e l e c t e d B o a r d s may be i n i t i a t e d w i t h a d e s c r i p t i o n o f t h e i r e n a b l i n g l e g i s l a t i o n and membership. Of t h e t h r e e B o a r d s under s t u d y : two B o a r d s a r e g o v e r n e d by t h e B r i t i s h C o l u m b i a M u n i c i p a l A c t ; and t h e t h i r d B o a r d i s g o v e r n e d by t h e C h a r t e r o f t h e C i t y o f V a n c o u v e r . The d e t a i l s o f membership and e n a b l i n g l e g i s l a t i o n a r e as f o l l o w s : 88 TABLE I MEMBERSHIP AND ENABLING LEGISLATION OF THE SELECTED ZONING BOARDS OF APPEAL IN THE VANCOUVER METROPOLITAN AREA OF BRITISH COLUMBIA Zoning Board of Appeal Municipal P r o v i n c i a l Chairman Total Enabling L e g i s l a t i o n City of Vancouver D i s t r i c t of Richmond City of North Vancouver Charter of the City of Vancouver. B.C. Muni-c i p a l Act. Source: F i e l d Investigation The Vancouver and Richmond Zoning Boards of Appeal have their membership prescribed by the enabling l e g i s l a t i o n . The Zoning Board of Appeal of the City of North Vancouver has had two members nominated by the p r o v i n c i a l government during the last two years. The f i r s t p r o v i n c i a l nominee dropped out after attending the very f i r s t hearing, the second nominee was appointed after 19 months and has not attended any hear-ings of the Board. For the la s t two years the Board's business has been conducted by the other two members, i n fact one member and the Chairman (who i s a member of the Board.) The reason for such unsuccessful nominations could not be established. 89 Table number II gives the breakdown by length of membership and profession of each member. The length of membership ranges from one month to sixteen years. The professional breakdown shows that only one member represents orien t a t i o n to the planning profession, the rest i n general are associated with the business community. TABLE II COMPOSITION OF MEMBERSHIP BY LENGTH OF MEMBERSHIP AND PROFESSION OF THE MEMBERS OF THE SELECTED ZONING BOARDS OF APPEAL IN THE VANCOUVER METROPOLITAN AREA OF BRITISH COLUMBIA Zoning Board' Member 'Length of 'Membership 'Profession * City of ' ' 1 '16 years 'Retired Executive Director, ' Vancouver 1 ' CPAC. * 2 '10 years 'Retired Immigration O f f i c e r . * 3 '10 years 'Retired Druggist. 1 ' 4 ' 4 years 'Businessman. ' ' 5 ' 3 months 'Retired Bank Manager. * D i s t r i c t of ' 1 ' 8 years 'Master Dredger. ' Richmond ' 9 years 'Formerly Public Relations ' ' O f f i c e r . * City of 1 ' 13 years 'Real Estate. * North r 2 ' 6 years 'Unknown. ' Vancouver ' * Source: F i e l d Investigation. 90 Procedure followed by the selected Zoning Boards of Appeal The enabling l e g i s l a t i o n makes i t mandatory that the zoning by-law adopted by a municipality should set,out the procedure to-be followed by the Zoning Board of Appeal. In the case'of the City of Vancouver, i t s Zoning. Board of Appeal i s empowered to determine i t s own procedure although 7 t h i s w i l l be subject to the provisions of the zoning by-law. The Zoning Boards of Appeal of the D i s t r i c t of Richmond and the City of. North Vancouver.have their procedures defined in their respective zoning, by-laws. The Boards of Vancouver and Richmond have formally adopted s p e c i f i c procedures for processing an appeal and u t i l i z e application forms which include instructions for f i l i n g ' a n appeal. The Board, of .the City of North Vancouver has.not prescribed any form or prer, r e q u i s i t e s for an appeal; every"applicant must ascertain the requirements from the Building Inspector, who acts as Secretary of the Board, before making an application to the Board. Notice of. Hearing. The business of issuing Notice of Hearing in respect of a zoning appeal i s the most delicate subject dealt with by a Zoning Board of Appeal. This i s p a r t i c u l a r l y so i n the l i g h t of the fact that one of the basic p r i n c i p l e s of natural j u s t i c e i s that both the parties to a dispute must receive adequate and e f f e c t i v e Notice of Hearing at which their r i g h t s are determined. 91 A l l three Boards d i f f e r as to the period and extent of public notice of the hearing of an appeal. The type of notice also d i f f e r s i n each case. While one Board requires a public notice to be published i n a l o c a l newspaper, the other two Boards require such notice to be given to adjacent/ surrounding property owners. The three Boards also d i f f e r i n the period of notice required prior to hearing. These differences may be seen c l e a r l y from table number II I . TABLE III CHARACTERISTICS OF NOTICE OF HEARING ISSUED BY THE SELECTED ZONING BOARDS OF APPEAL IN THE VANCOUVER METROPOLITAN AREA OF BRITISH COLUMBIA Zoning Board of Appeal 'Period of ' Notice ' Type of ( Notice 'Details of Notice City of Vancouver '3-10 days 'Public 'Time, date, place of 'hearing and the 'address of property 'under appeal. D i s t r i c t of Richmond ' 7 days 'Only to 'owners of 'neighbour-'ing l o t s ' - do -City of North Vancouver 'Not i n d i -'cated. ' - do - 'Not indicated. Source: F i e l d Investigation. The Vancouver Zoning Board of Appeal gives a public notice through two consecutive advertisements i n a l o c a l newspaper. The notice indicates the time, date and place of 92 hearing, and the address of the property for which the appeal is to be heard. The Richmond Zoning Board of Appeal requires i t s Chairman to "cause due publicity to be given of the g hearing in the neighbourhood" and also to serve a seven days clear notice to the owners of neighbouring lots. The contents of Richmond*s notice of appeal are similar to that of the Vancouver Zoning Board of Appeal. The City of North Vancouver Zoning Board of Appeal not only f a i l s to indicate the period of notice, i t also does not indicate the details to be included in such a notice. The Use of Discretion. The enabling legislation of the three Boards make them responsible for giving notice of hearing of zoning appeals to owners of the properties who 9 may be affected by the appeal. The enabling legislation does not expressly authorize any Zoning Board of Appeal to sub-delegate i t s delegated powers and the maxim delegatus  non potest delegare applies to i t . In the light of this fact i t is interesting to identify who decides and issues the Notice of Hearing of these Boards. 9 3 TABLE IV ISSUING AUTHORITY FOR THE NOTICE OF HEARING IN THE SELECTED ZONING BOARDS OF APPEAL IN THE VANCOUVER METROPOLITAN AREA OF BRITISH COLUMBIA Zoning Board of Appeal Issuing O f f i c e Legal Authority City of Vancouver Secretary of * the Zoning * Board of Appeal* Chairman of the Zoning Board of Appeal D i s t r i c t of Ricmond Chairman of * the Zoning 1 Board of Appeal' do -City of North Vancouver Secretary of * the Zoning * Board of Appeal1 do -Source: F i e l d Investigation. It i s apparent from table number IV, that only one Board, namely, the D i s t r i c t of Richmond Zoning Board of Appeal, follows the intention of the enabling l e g i s l a t i o n . The Zoning Boards of Appeals of Vancouver and the City of North Vancouver contravene the maxim delegatus non potest  delegare i n authorizing their secretaries, who are municipal employees and not members of the Boards, to use their d i s c r e -t i o n i n deciding and issuing a notice of hearing and as such t h i s action must be regarded as u l t r a v i r e s . of j u r i s d i c t i o n of the Vancouver Zoning Board of Appeal i s much larger than the other two Boards. The Vancouver Board Types of Cases Heard and Appeals Granted. The ambit 94 hears and decides; cases of non-conforming uses; erection of signs beyond established building l i n e ; conversions; extensions; and^appeals from the decisions of the Technical Planning Board. A l l of these appeals are not based on undue or unnecessary hardship. On the other hand the j u r i s d i c t i o n of the D i s t r i c t of Richmond and City of North Vancouver Zoning Boards of Appeal are mainly r e s t r i c t e d to, cases a r i s -ing out of undue or unnecessary hardship. Table number V, gives the number of appeals received and decided by the three Boards during the year 1965. TABLE V NUMBER OF APPEALS RECEIVED AND TYPES OF DECISIONS MADE BY THE THREE SELECTED ZONING BOARDS OF APPEAL IN THE VANCOUVER METROPOLITAN AREA OF BRITISH COLUMBIA 1 Vancouver 1 Richmond 'North Vancouver Types of Decisions •No.' % 'No." % 'No.' % 1. Total number of * * * * Appeals made to the* * * 1 Board. '457' 100 * 31* 100 * 16* 100 2. Number of Appeals granted. * 89*19.5 * 24*77.4 ' 7*44.4 3. Number of Appeals granted with conditions. '227*49.7 ' 2' 6.4 * 6*37.5 4. Number of Appeals refused. '102*22.3 1 -* * 1* 6.2 5. Number of Appeals not heard. * 2* 0.4 * 1* 3.2 * 1* 6.2 6. Number of Appeals withdrawn. ' 37' 8.1 * 4*13.0 * 1* 6.2 Source: F i e l d Investigation. 95 The cases submitted to the respective Zoning Boards of Appeal involved various types of land uses which are detailed i n table number VI, below: TABLE VI TYPES OF LAND USES INVOLVED IN APPEALS MADE TO THE THREE SELECTED ZONING BOARDS OF APPEAL IN THE VANCOUVER METROPOLITAN AREA OF BRITISH COLUMBIA i Vancouver ' Richmond 'North Vancouver Types of Land Use Involved No. * % 'No.T % *No.T % 1. Multifamily R e s i d e n t i a l 1 i i '119*26.0 t t ' 4*13:0 % i * 1* 6.2 2. Other Residential 1 '228*49.9 t r 22*71.0 * 14*87.5 3. Commercial uses in ' Residential area. > t ' 3* 0.7 i t ' 1* 3.2 i i 4. Commercial uses. ' 90*19.7 t t ; -* - * 1' 6.3 5. In d u s t r i a l uses. ' 15* 3.3 t ' 3* 9.6 ' -* 6. Miscellaneous. r 2* 0.4 r t r 1' 3.2 Source: F i e l d Investigation. 4 These appeals were based on var ious + grounds, the predominant ground being undue or unnecessary hardship. Vancouver i s an exception to th i s generalization as the -c -I majority of cases i t heard were based on other grounds. These were comprised of items within the extended j u r i s d i c t i o n of the Vancouver Zoning Board of Appeal. Table number VII relat e s the number and percentage of appeals to the d i f f e r e n t grounds for appeal i n the selected communities. 96 TABLE VII GROUNDS OF APPEAL MADE TO THE SELECTED ZONING BOARDS OF APPEAL IN THE VANCOUVER METROPOLITAN AREA OF BRITISH COLUMBIA 1 Vancouver 1 Richmond1 North Vancouver Ground of Appeal 'No. 1 % No. 1 % ' No. 1 % 1 . Undue or unnecessary hardship. ' 1 0 9 ' t 1 1 t 2 3 . 8 ! 1 1 8 r 5 8 . 0 1 1 4 ' 8 7 . 5 2 . Hardship not covered by the provisions of the Municipal Act or the Vancouver Charter. * 3 8 * t 1 • 8 . 3 1 r g t 1 ] 2 5 . 8 ' ' l ' 6 . 2 3 . Ambiguity of Zoning by-laws. t t t * 1* 0 . 2 i ff » 2 * , 6 . 5 ' ! 1 ' 6 . 3 4 . Misinterpretation of Zoning By-law. 1 3* 0 . 7 t 2 t 6 . 5 ' -5 . Others. ^ o e ' 6 7 . 0 ' 3 . 2 * - ' -TOTAL ! 4 5 7 I i o o 1 1 0 0 * - 16 J 100 Source: F i e l d Investigation. It may be appreciated that although the number of cases a r i s i n g out of ambiguity of the zoning by-law i s small, s t i l l i t i s a po s i t i v e i n d i c a t i o n of the fact that weakness on the part of the zoning by-law i t s e l f does give reason for appeal. Most of the appeals based on misinterpretation of the zoning by-law arose because of mistakes on the part of municipal employees in interpreting the zoning by-laws. The majority of appeals having grounds of undue or unnecessary hardship were rel a t e d to yard variances. The types of relaxations 97 sought on these bases are detailed i n the Table VIII, below. TABLE VIII TYPES OF RELAXATIONS SOUGHT IN APPEALS MADE TO THE THREE SELECTED ZONING BOARDS OF APPEAL IN THE VANCOUVER METROPOLITAN AREA OF BRITISH COLUMBIA Vancouver 1 Richmond' North Vancouver Types of Relaxations Sought' No. 1 % ' No. 1 %•' ' No. 1 % 1. Yard Variances. 1 i 761 * 16. 61 26' 83.9' i 14' 87.5 2. Alterations of Extens- ' ions to non-conforming ' uses. 1 i t 30' t 6. 5' 1* 3.2' i t 3. Height Limitations. 1 15* t 3.3' * 2* 6.4' ! "» -4. Use Variances. 1 . 45* t 9.8' ; -; -' ! "! -5. Development beyond estab-lis h e d building l i n e s ; ' t 32' t 7.0' -1 ; -; -6. Miscellaneous. ' 220' : t 48.1' 2* -6.5 ' 2» 12. 5 TOTAL i 4571 100 r 31t 100 r 16, 100 Source:. F i e l d Investigation. The single largest number of appeals was made for miscellaneous relaxations i n the City of Vancouver. This large number i s because of extended j u r i s d i c t i o n of the Vancouver Zoning Board of Appeal; as i t i s not comparable with the other two Boards t h i s figure or type of relaxation i s not considered for comparison here. The majority of appeals i n a l l three Boards were for yard variances. < I l l RESULTS OF AN ATTITUDE SURVEY OF MEMBERS OF THE ZONING BOARDS OF APPEAL AND MUNICIPAL OFFICIALS The data gathered on the operation of the three selected Zoning Boards of Appeal were supplemented by i n t e r -views with the members of the three Boards, and o f f i c i a l s of the municipal planning departments. Interviews with the members of these Boards were completed with the- help of a mailed questionnaire (see Appendix I I I ) . These interviews endeavoured to obtain each member's point of view with respect to the operation of these Boards, and also to ascertain their attitude towards and knowledge of municipal planning and zoning objectives. Personal interviews with those municipal o f f i c i a l s responsible for enforcement of the Zoning by-laws were structured to determine their opinions concerning the effectiveness of the operation of these Zoning Boards of Appeal. Interviews with the Members of the Selected Zoning  Boards of Appeal. Of the ten members i n the three selected Zoning Boards of Appeal, seven members responded to the mailed questionnaire. The three remaining members, who a l l belong to one of the selected Boards, did not respond i n spite of several personal requests. Although these members did not cooperate i n 99 completing the questionnaire, nevertheless they expressed their views i n personal meetings. These three members i n d i -cated that they were not informed of municipal planning and zoning objectives except those expressly stated i n the municipal zoning by-law, and that their function was to act only as a jury and to decide each case on i t s i n d i v i d u a l merits, i r r e s p e c t i v e of any planning objectives. The seven questionnaires completed by members of these three Boards provide valuable and intere s t i n g information. The r e s u l t s of these questionnaires are presented i n Table number IX, page 114 and observations r e l a t e d to the question-naire are made i n part IV of t h i s Chapter. Interviews with the Municipal O f f i c i a l s responsible for enforcement of Zoning By-laws. The City of Vancouver has a Zoning Planning O f f i c e r who i s in-charge of zoning administration and who attends a l l the hearings of the Zoning Board of Appeal on behalf of the City. In the D i s t r i c t of Richmond, the Municipal Planner and the Building Inspector advises the Zoning Board of Appeal on each zoning appeal. In the City of North Vancouver, the Building Inspector i s responsible for the enforcement of zoning as the City does not have a planning department. These o f f i c i a l s of the three municipalities were interviewed for three basic reasons: f i r s t l y to f i n d some fa c t u a l information 100 about instructions and any other material supplied to the respective Zoning Boards of Appeal; secondly to c l a r i f y doubts which arose i n the course of investigation; and t h i r d l y , to obtain their appraisal of the operation of these Boards. Observations derived from these interviews are presented below. IV OBSERVATIONS AND CONCLUSIONS The observations have been grouped into three main categories. The f i r s t group i s comprised of observations derived from investigation into the operation of the selected Zoning Boards of Appeal. The second group consists of opin-ions of the members of these Boards as r e f l e c t e d i n their answers to the questionnaire. The t h i r d group consists of the opinions of the municipal o f f i c i a l s , charged with zoning administration, concerning the operation of their respective Zoning Boards of Appeal. The Operation of the Zoning Boards of Appeal A l l three Boards under investigation were observed generally to maintain the following procedure at the hearings: 1. Hearing i s c a l l e d to order by the Chairman. 2. Approval of minutes from the previous hearing. 3 . F i r s t appeal i s c a l l e d by the Secretary. 101 4. Hearing of the Appeal (a) The Secretary reads out the contents of the appeal. (b) The appellant i s given a chance to add any more facts i n support of his appeal. (c) The protestants, i f any are present, are c a l l e d to present their objections. 5. The Board's consideration (a) The Board requests the Municipality's opinion and any c l a r i f i c a t i o n s as to the exist i n g regulations. It may be pointed out that i n t h i s respect a l l these Boards have d i f f e r e n t procedure. In the case of the City of Vancouver, the Zoning Planning O f f i c e r and the Building Inspector attend a l l hearings and advise the Board when desired. In the case of the D i s t r i c t of Richmond, the Municipal Planner and the Building Inspector submit their reports to the Board i n writing, i n each appeal. In the case of the City of North Vancouver, the Building Inspector, who also acts as Secretary of the Board, advises the Board on behalf of the City. (b) Motion and voting by members of the Board. (c) Award of decision. 6 . Formal transmittal of the Boards decisions to th appellant, the Building Department, and the Planning Department. To become fa m i l i a r with each appeal, the Boards of th City of Vancouver and the D i s t r i c t of Richmond inspect the property involved i n the appeal, before hearing the appeal. The City of North Vancouver follows a peculiar procedure of inspecting the involved property immediately after hearing the r e l a t e d appeal and thereafter awarding i t s decisions, 102 thus i n t h i s case the Board's proceedings are interrupted by inspection tours. Another p e c u l i a r i t y observed i n respect of the City of North Vancouver i s that i t s Building Inspector acts as the Secretary of i t s Zoning Board of Appeal and thus plays two incompatible r o l e s ; one as a Secretary of a q u a s i - j u d i c i a l independent body where he also enjoys the power to use d i s c r e t i o n i n issuing "Notice of Appeal"; and other as a representative of the City to advise the Board of the City's regulations, as a r e s u l t of which his opinion may be biased against the appellant. It was observed that only the D i s t r i c t of Richmond follows the intention of the enabling l e g i s l a t i o n i n making the Chairman responsible for issuing "Notice of Appeal". The other two Boards, namely the Zoning Boards of Appeal of the City of Vancouver and the City of North Vancouver contra-vene the authority i n re-delegating the authority to issue of "Notice of Appeal", to their secretaries. In the case of these two Boards such action on the part of their secretaries i s u l t r a v i r e s and so their decisions are inconsistent with the rules of natural j u s t i c e , the reasons for which have already been explained i n Chapter I I I . Consistency of Decisions with Planning and Zoning  Objectives: It may be i n i t i a l l y noted that i t was not p o s s i -ble to do a detailed study of the consistency i n decisions of 1 0 3 the Vancouver Zoning Board of Appeal with respect to planning and zoning objectives. The main reason for t h i s was the i n s u f f i c i e n t data available for analysis. The only data available were the minutes of the Board's proceedings, which are recorded on the body of the i n d i v i d u a l "Notice of Appeal" (see Appendix IV). These minutes neither indicate reasons for accepting or dismissing the appeal, nor give the composi-ti o n of votes which favoured or disfavoured an appeal. The only i n d i c a t i o n of the Board's decision as recorded on the "Notice of Appeal" i s that of the granting, or granting with conditions, or dismissal, of an appeal. Wherever conditions are attached to the granting of an appeal, these are i n d i c a -ted i n the decision of the Board. In the case of the D i s t r i c t of Richmond Zoning Board of Appeal, the p o s i t i o n i s similar to the Vancouver Zoning Board of Appeal, excepting that the minutes of the Board's proceedings had to.be c o l l e c t e d from, i n d i v i d u a l case f i l e s . The Cit y of North Vancouver not only does not have a pres-cribed "Notice of Appeal" form, i t s Board*s minutes of proceedings do not indicate reasons or grounds of appeal and the resultant decision. An analysis of a l l the cases of the D i s t r i c t of Richmond Zoning Board of Appeal shows that the Board has followed s t r i c t l y the advice of the Municipal Planning Department and 104 the Buildings Inspector, and as such the decisions were consistent with the recommendations of these departments. It may be r e c o l l e c t e d that t h i s Board secures written comments from these municipal o f f i c i a l s , concerning each appeal. A study of these cases provided the investigator with the impression that the Municipal Planning Department and the Building Inspector were d i c t a t i n g decisions to the Board, and thus getting changes made under the Zoning by-law which were beyond their own power. In other words, the Planning Department legitimized i t s actions under cover of the Zoning Board of Appeal. From Table No. V at page 94 i t i s evident that out of the t o t a l number of appeals brought before the Boards only a n e g l i g i b l e number (0.4 to 6.2%) of appeals were either not heard or were withdrawn from the Boards. Out of the t o t a l number of appeals presented to the Boards a majority (69.2 to 83.8%), of them were granted. With the exception of the City of Vancouver Zoning Board of Appeal most (44.4 to 7.7.4%) of those granted were without any conditions. Again with the exception of the City of Vancouver Zoning Board of Appeal, which rejected about twenty-two per cent of appeals, most (84 to 88%) of the appeals presented to these Boards were successful. The evidence thus tends to show that generally these boards grant the relaxations requested, and 105 that they do not impose any p a r t i c u l a r conditions on the relaxations. Table No. VI page 95 shows that a great majority (49.9 to 87,5%) of the appeals were r e l a t e d to single family r e s i d e n t i a l areas. Table No. VII at page 96 indicates that the majority of appeals (23.8 to 87.5%) were based on undue or unnecessary hardship. One p e c u l i a r i t y to be noticed from Table VII i s that quite a s i g n i f i c a n t number of appeals were based on some plea of hardship which was not necessarily because of peculiar s i t u a t i o n of the property, these appeals were based on f i n a n c i a l or emotional hardship. It i s inter e s t i n g to.observe that most (69.2 to 83.8%) of these appeals were granted, but at the same time the basis for r e j e c t i n g similar appeals under similar circumstances was not made clear, because of the absence of detailed recorded decisions which would normally indicate the basis of r e j e c t i n g or accepting an appeal. In summary, the decisions appeared to be arbitrar y , highly subjective, and inconsistent. From an analysis of these data i t appears that grant-ing of relaxations was almost the only function of these Boards. Only a n e g l i g i b l e number of appeals involved i n t e r -pretation of the zoning by-law. In some instances the relaxations requested were to escape from the use requirements 106 of a zoning by-law and granting of such appeals actually constituted spot zoning. The majority of appeals were made in an attempt to obtain relaxation of yard area requirements. The appeals indicate that i n d i v i d u a l appellants see zoning largely as a l i m i t a t i o n i n t e r f e r i n g with private r i g h t s to the enjoyment of their yards and the amount or area of s i t e coverage permitted on their property. This could also imply that the i n d i v i d u a l appellant sees his request as something peculiar to his own property, without any consideration of the possible effect of the relaxation sought upon his neighbours properties or upon the neighbourhood as a whole. The requests for relaxation from yard requirements c o n s t i -tuted the majority of appeals (see Table VIII at page 97) and nearly a l l of these were granted. These Boards were generally i n c l i n e d to grant yard relaxations and seemed to be of the consensus that such relaxations affect only the appellant*s property. In t h i s analysis, numerous cases indicate the Boards* lack of understanding to the zoning and planning objectives i n granting such relaxations. For example, i n a cert a i n case the appellant requested permission to convert the e x i s t i n g carport into a bedroom and add a new carport i n front which would intrude 6 feet into the required set back of 35 feet. The basis of the appeal was an increase i n the si z e of family and another element submitted i n support of the appeal was 107 that some of the neighbouring houses did not s t r i c t l y follow the set back requirements. This appeal was granted, but in the absence of any recorded decision the c r i t e r i a on which the Board granted the relaxation were not i d e n t i f i a b l e . However, i t i s clear that the Board, while granting the appeal, did not consider a l l the factors e s s e n t i a l for the proof of hardship. It also did not respect the zoning and planning objectives, since by a personal inspection of the s i t e i t was confirmed that the required bedroom addition could have been made e a s i l y at the rear, within the same range of costs. If the Board had considered these factors c a r e f u l l y i t would probably have rejected the appeal, f i r s t l y , because the claim that s i m i l a r i r r e g u l a r i t i e s exist i n the neighbourhood does not render t h i s claim e l i g i b l e for a relaxation, and secondly when a r e l i e f i s te c h n i c a l l y possible, within the requirements of a by-law, then there i s no basis for the granting of a relaxation. The most s i g n i f i c a n t factor observed i n the operation of these Zoning Boards of Appeal was that although they derive their j u r i s d i c t i o n primarily from cases a r i s i n g out of undue or unnecessary hardship caused by the s t r i c t application of a zoning by-law, yet no attempt was made to establish hardship i n any of the cases studied. One defence advanced was that an appeal not obviously f a l l i n g under undue or unnecessary hardship was not accepted by the Board. But 108 th i s does not mean that t h i s a r b i t r a r y scrutiny dispenses with the necessity of establishing such hardship i n the hearing of the Zoning Board of Appeal. It.was observed that none of these Boards had formulated any c r i t e r i a for evalua-t i n g hardship, each i n d i v i d u a l appeal was given subjective judgment. The subject of evaluation of hardship at the time of acceptance of a "Notice of Appeal" i s even more c r i t i c a l , because these notices are accepted by the Secretary, who happens to be a municipal employee i n each case and as such acts without any leg a l authority. Interviews with the Members of the Zoning Boards of Appeal An analysis of the mailed questionnaires completed by the seven members of the Zoning Boards of Appeal i s presented below. The r e s u l t s of these questionnaires provide i n t e r e s t -ing and valuable information which i s presented i n tabular form i n Table IX, page 114. F i r s t , two questions were asked to determine whether the respective municipal councils have provided the members with a l l the necessary basic information regarding the functions of the Zoning Board of Appeal, while one member r e p l i e d i n the negative. Five out of seven members confirmed that they have been provided with adequate instructions regarding the procedure to be followed by the Boards; and the inte r p r e t a t i o n of the zoning by-law and other statutes. Two 109 members stated that they have been provided with an e x p l i c i t statement of the muni c i p a l i t i e s ' zoning objectives while the rest of the f i v e members r e p l i e d i n the negative. Only one out of seven members considers that he has been provided with an e x p l i c i t statement of municipal planning goals; the other s i x members indicated their ignorance of the existence of any such goals. In the t h i r d question the members were asked, whether their respective Municipal Councils had provided them with planning and zoning reports i n order to keep them i n touch with current developments i n municipal planning p o l i c y . Only three members confirmed provision of these reports connected with zoning changes, while the other four members r e p l i e d i n the negative. When asked about the media used to keep them-selves up-to-date with such changes, three members indicated that they depended on newspapers, while two members stated that they used zoning maps and the other two did not respond. The fourth question attempted to judge the awareness of each member i n respect of his knowledge of the relevant municipal development po l i c y . Only two members out of seven confirmed that their municipalities had a long range develop-ment polic y . When asked i f their respective municipalities had informed their respective members of the d e t a i l s of their development po l i c y , a l l the members r e p l i e d i n the negative. 110 Only two members weighed the relaxation sought against the long range municipal p o l i c y , while the rest of the f i v e members were rather i n d i f f e r e n t about their r e s p o n s i b i l i t y with municipal planning p o l i c y or any knowledge thereof. Only three members f e l t that the decisions of their Boards were consistent with the municipal planning p o l i c y while the others generally i n s i s t e d that they are only concerned with zoning or immediate issues and not responsible for any planning p o l i c y . The f i f t h question re l a t e d to the f a c i l i t i e s provided at the time of hearings. A l l seven members confirmed that zoning maps and by-laws were prominently displayed or r e a d i l y available at the time of hearings. While four members stated that planning maps were prominently displayed at the time of Zoning Board of Appeal hearings, three members r e p l i e d i n the negative. The sixth question proposed a d e f i n i t i o n of "undue or unnecessary hardship". The objective here was to determine whether there was a consensus of opinion, and i f there was no consensus then to analyze the suggested changes. A l l the members agreed with t h i s d e f i n i t i o n and no changes were suggested. I l l In the seventh question the members were asked to i d e n t i f y the factors they considered most s i g n i f i c a n t i n a zoning appeal by indicating their preferences i n a l i s t of factors provided. Six out of seven members i d e n t i f i e d the "appellants hardship" as the most s i g n i f i c a n t factor, while the second most important factor was considered to be " i n t e r -pretation of law". The t h i r d most important factor was the public i n t e r e s t . The eighth question contained an extract from the Zoning Ordinance of Cook County, I l l i n o i s , (see Appendix III) which contains a set of instructions for the granting of relaxations and a l i s t of authorized relaxations. The members were asked i f similar instructions were provided to them. Two members out of the seven said that they were provided with such instructions about f i v e years back and these were obso-lete now. When asked i f such information would be useful to them, only two members out of seven thought these would be useful while the other four members r e p l i e d i n the negative, and one did not respond. In question nine, the seven members were asked i f pro-visions of a uniform procedure for zoning administration, supplemented by a po s i t i v e statement of zoning and planning objectives would enable the Zoning Boards of Appeal to make better and consistent decisions. Four out of the six members 112 who responded thought i t would be useful while the other two gave a negative reply and one member did not. respond to t h i s question. The tenth question was asked to see i f these Boards are c a r e f u l about the consequences of the relaxations granted by them. Two members out of seven said their Board i n v e s t i -gates actual influence of i t s relaxations on municipal planning p o l i c i e s , while the other f i v e r e p l i e d i n negative. Four members out of the seven confirmed that their Boards observe the eff e c t of relaxations granted by them, on the surrounding area, while the other three members r e p l i e d i n the negative. Question eleven r e l a t e d to communication between the Zoning Boards of Appeal and the respective municipalities. Two members indicated that formal periodic meetings were arranged between their Boards and the municipality's technical personnel, while the other f i v e members stated that there were no formal periodic meetings between the Boards and munici-p a l i t y ' s technical personnel, but these technical personnel were made available on request. Again two members said that formal periodic meetings were arranged between the Boards and the Municipal s o l i c i t o r while the other f i v e members r e p l i e d i n negative. None of the seven members made any suggestions as to how communication between the Zoning Boards of Appeal 113 and their respective muncipalities could be improved. In the last question the respondents were asked i f an occasional seminar on the functioning of the Zoning Boards of Appeal, i n the province, would help them to understand their functions and l i m i t s more f u l l y . Six out of the seven respondents f e l t that such a seminar would be useful, while one member did not see any advantage i n having such a seminar. When asked as to who should sponsor such a seminar, a l l six members who approved of having such a seminar suggested that the P r o v i n c i a l Government should sponsor i t . One member also suggested as an alternative that a university should sponsor such a seminar. 114 TABLE NO. IX ANALYSIS OF MAILED QUESTIONNAIRE COMPLETED BY MEMBERS OF THE SELECTED ZONING BOARDS OF APPEAL IN THE VANCOUVER METROPOLITAN AREA NOTE: 1. Letters of the alphabet are assigned to each respondent and their r e p l i e s to each question are noted v e r t i c a l l y under each l e t t e r . 2. N.R. means No Response. t 1 1 1 1 1 -T 1 ! ! — - — , A , B , C , D , E , F , G , H , I * . J t t t t t t t t t t •1. Has the Municipal Council provided you with adequate instructions regarding: (a) the function of the Zoning Board of Appeal (ZBA)? 1 Yes * j * * i" •- r Yes * Yes * Yes • Yes * Yes * No '' "V"  m1— " T * NR 1 NR • NR (b) the procedure to be followed by the ZBA? i Yes T I I I T I Yes 1 Yes 1 No T Yes 1 Yes 1 No * i i T NR 1 NR 1 NR (c) interpretation of the zoning by-•law, statutes etc. Yes 1 » * i % i Yes * Yes 1 No • Yes 1 Yes 1 No K i t * NR * NR T NR 115 t 1 ! ? 1 J 1 T 1 1 1 ' A * B ' C ' t D * E ' F ' G T H * I * J * 2. Has the Municipal Council provided you with: (a) an e x p l i c i t statement of i t s zoning objectives? t ! ! ! 1 ? 1 1 1 f 1 'No 1 No ' Yes ' No 'No ' Yes 'No ' NR 1 NR ' 1 ' (b) an e x p l i c i t statement of i t s planning goals? t j J 1 ? J J J ? J „t 'No 'No • Yes * No * No " No * No * NR * NR 1 NR * 3 . Does, the Municipal Council provide you with planning and zoning reports i n order to keep you i n touch with current developments i n municipal planning p o l i c y changes? t T 1 I 1 1 1 » 1 f 1 1 No ' Yes * Yes 'No * No * Yes 'No ' NR * NR ' NR 1 If t h i s i s not so, how do you keep yourself in touch with these changes? 'News-'Zoning1 ' 'News-^Zoning'News-1 5 ! ' 'paper'' Map ' NR ' NR 'paper-' Map *paper T NR * NR * NR ' 4 . (a) Is there a long range municipal development p o l i c y ? t—: 1 1 T T TI ! 1 » T 1 :t ' Yes' 'No * No 'No * Yes * No 'No ' NR ' NR NR ' If there i s , has the Council informed you of de t a i l s of this p o l i c y ? t 1 T J » 1 J Y 1 ! 1 1 No 'No * No 1 NR * No 1 No 'No * NR 1 NR * NR 1 116 A * B ' C ' D ' * E ' F ' G ' H ' I ' J ( b ) Do;, y o u v e r i f y t h a t t h e r e l a x a t i o n s o u g h t i n t h e z o n i n g a p p e a l w i l l n o t c o n f l i c t w i t h t h e l o n g r a n g e m u n i c i p a l p l a n n i n g p o l i c y ? t ! » 1 1 r 1 i 1 j Y e s ' No * No 1 No * Y e s ' No * No *' NR * NR ' NR ( c ) Do y o u f e e l t h a t t h e d e c i s i o n s o f t h e ZBA a r e c o n s i s t e n t w i t h t h e m u n i c i p a l p l a n n i n g p o l i c y ? t : » 1 ? : « 1 r 1 r ' Y e s ' Y e s * No * No ' Y e s 1 No ' N o * NR * NR 1 NR 5. ( a ) . A r e t h e z o n i n g maps and b y - l a w s p r o m i n e n t l y d i s -p l a y e d a t t h e t i m e o f ZBA h e a r i n g s ? t- • r* 1 r r — — — r 1 1 t t * Y e s '" Y e s ' Y e s '' Y e s •* Y e s * Y e s * Y e s *• NR 1 NR * NR (b ) A r e t h e m u n i c i p a l p l a n n i n g maps p r o m i n e n t l y d i s -p l a y e d a t t h e t i m e o f ZBA h e a r i n g s ? t ? J 1 J s 1 1 r: 1 1 Y e s * Y e s * No 1 Y e s * Y e s ' N o ' N o 1 NR * NR ' NR 6. " U n n e c e s s a r y h a r d s h i p " h a s n o t b e e n p r e c i s e l y d e f i n e d b u t t h e f o l l o w i n g i s a c o n d e n s a t i o n f r o m i m p o r t a n t c o u r t d e c i s i o n s " : The a p p l i c a t i o n o f t h e u n n e c e s s a r y h a r d s h i p d o c t r i n e i s n o t g o v e r n e d s o l e l y by t h e s i z e o f t h e a r e a o r p a r t i c u l a r p i e c e o f p r o p e r t y u p o n w h i c h t h e u n n e c e s s a r y h a r d s h i p i s i m p o s e d . No s i n g l e f a c t o r d e t e r m i n e s what c o n s t i t u t e s u n n e c e s s a r y h a r d s h i p , b u t a l l r e l e v a n t f a c t o r s , when t a k e n t o g e t h e r , must i n d i c a t e t h a t t h e s p e c i a l c o n d i t i o n s a r e s u c h t h a t t h e p r o p e r t y a f f e c t e d c a n n o t r e a s o n a b l y 117 i 1 J 1 1 » 1 1 1 r 1 , A , B T C I D , E , F * G t H t I t J t be put to a conforming use because of the l i m i t a t i o n imposed upon i t by reason of the c l a s s i f i c a t i o n i n which i t i s placed i n terms of the ordinance (by-law). (a) Do you agree with t h i s d e f i n i t i o n ? T ~! 1 1 Hf T 1 r~ V Yes 1 Yes * Yes * Yes * Yes * Yes > Yes 1 NR * NR t NR If not, what changes would you suggest? -* % T I * * i i T " NR t NR 1 NR » NR 1 NR ' NR ' NR 1 NR 1 NR t NR 7. In reaching a decision on a zoning appeal what factors do you consider most s i g n i f i c a n t ? Zoning Standards Planning Objectives Interpretation of Law Public Interest Appellant's Hardship Others A B e D E F G H I J 2 \ " I l — 3 T t t t — 'NR t 'NR t T NR t 3 t " , — — 1 1 1 t t — fNR t *NR t 'NR t ' 1 ' 2 * t 1 * 1 *NR » *NR t 1 NR t r 3 1 1 1 [ i i 1 2 * t fNR t *NR t lNR t ' 1 l ' ' 1 ' 3 I t 1 * 1 ,NR t VNR i 'NR t 1 2 * _ * t t — ' 1 V t _ V t — 'NR t 'NR t TNR t 8. Some ordinances/by-laws provide the ZBA with a set of instructions for vairances and a l i s t of authorized variances (example i n Appendix). Has your Board been provided with similar i n s t r u c t i o n s ? t J — i * i s 1 1 1 1 1 ' Yes ' No.- *. No 'No 1 Yes 'No 'No ' NR 1 NR ' NR ' i 118 \ 1 T T T T > T T 1 1 :* . A ? t B 1 C 1 D . * E ' F 1 G '* H T* I 1 J * If not, do you think provision of such information would be useful to the Board i n dealing with relaxations from regulations contained i n the zoning by-law? t " J 1 ~t 1 —J 1 J 1 ! 1 1 Yes 'No * No 1 No ' NR * Yes 1 No * NR 1 NR 1 NR 1 '9. Do you think that provision of regulations to ensure uniform procedure for zoning administration, under the Municipal Act/Vancouver Charter, supplemented by a p o s i t i v e statement of zoning objectives and planning p r i n c i p l e s would enable the ZBA to make better and *" more consistent decisions? t j 1 1 f 1 j j 1 f 1 * Yes * No * NR 1 No * Yes * Yes * Yes * NR 1 NR T NR 1 10. Does the ZBA investigate the physical conditions achieved as a r e s u l t of the relaxations granted, to observe: (a) actual influence on municipal planning p o l i c i e s ? i ~ ~1 ? T Yes * No 1 No 1 T 1 f T~ f No :* Yes * No t No 1 NR 1 NR f t NR (b) . e f f e c t of relaxation on surrounding area? l • i f f Yes * No * Yes * i • t i i • t No 1 Yes ' 1 Yes '* Yes • NR "* NR t t NR *' 11. (a) Are formal periodic meetings arranged between the ZBA and the municipality's technical personnel? t 1 1 1 1 1 1 s 1 1 "" '" t r :» Yes T No ;' No * No ' Yes "' No ' No T NR J NR '* NR *' 1 119 •t T T » 7 1 ! 1 J 1 A •* B -I C ' D '* E •* F * G * H * I '* J (b) Are formal period'meetings arranged between the ZBA and the Municipal S o l i c i t o r ? t I S T J * 1 H \ t 1 Yes •» No T No -1 No * Yes ", No T No T NR T NR 1 NR (c) What would you recommend to improve communication between the ZBA and the Technical Personnel and the Council and the Municipality? t 1 1 * 1 » * 1 ? 1 1 NR 1 NR 1 NR 1 M * NR * NR 1 NR 1 NR 1 NR 1 NR 12. Do you think an occasional seminar on the functioning of the ZBA, in' the Province of B r i t i s h Columbia, would be h e l p f u l for the members of the ZBA to understand their functions and l i m i t s more f u l l y and to recommend improvements, i f any? t : — f 1 1 * * 1 1 1 1 * Yes * No * Yes 1 Yes 1 Yes * Yes • Yes * NR * NR * NR I f 7 y e s , who should sponsor i t ? A l l the six members saying yes, were of the opinion that the P r o v i n c i a l Government should sponsor i t . However, one member suggested the University could also' sponsor such a seminar. 1 2 0 Interviews with the Municipal O f f i c i a l s responsible for  Enforcement of Zoning By-laws. As already mentioned, two out of the three munici-p a l i t i e s , whose Zoning Boards of Appeal were studied, have Planning Departments. The t h i r d municipality takes care of i t s planning business mainly through i t s Building Department, although recently i t has advertized for a planner. Off-icials of these three municipalities have di f f e r e n t opinions about the operation of their respective Zoning Boards of Appeal. ! • t * i In one municipality a planner attends a l l the hearings of the Zoning Boards of Appeal and even accompanies the members of the Board on s i t e inspections. While t h i s o f f i c i a l t r i e s to advise the members of a l l implications involving every appeal, nevertheless the Board i s not required to accept his advice. This o f f i c i a l f e e l s that although the Board acts without any prejudice i t nevertheless frequently ignores suggestions extended and tends to make decisions which do not necessarily support the intent of the zoning by-law. He also f e l t that the evaluation of hardship involved in appeals was highly subjective. Since the Board need not necessarily take account of precedents, t h i s subjective judgment tended to be inconsistent in similar cases separated by time dimensions. This o f f i c i a l f e l t that since the Board was primarily created for removal of inequities i n 121 cases where the enforcement of a zoning by-law caused undue or unnecessary hardship, the primary job of the Board should be to evaluate c r i t i c a l l y the hardship without getting involved with compassionate reasons. It was f e l t that the Board should not grant relaxations so generously so as to create a general impression i n the mind of the public that there i s a p o s i t i v e chance of avoiding compliance with the zoning requirements through an appeal to the Zoning Board of Appeal. Another opinion extended was that while granting a relaxation the Board should take cognizance of municipal planning p o l i c y and should try to orient i t s decisions i n such a way that these not only provide r e l i e f i n the case of genuine appeals but also support the municipal planning policy. In the second municipality, an o f f i c i a l of i t s Planning Department was of the idea that only genuine cases are heard by the Zoning Board of Appeal. As a l l the zoning appeals are screened in the Planning Department before any action towards hearing i s taken thereon, i t was assumed that a l l such cases where the basis of appeal was apparently non-cognizable were not accepted for hearing. It may be observed here that such action on the part of the municipality i s u l t r a vires as i t f a l l s within the j u r i s d i c t i o n of i t s Zoning Board of Appeal. It was stated that the decisions of the Board were consistent with the municipal zoning and 122 planning objectives. This statement was most probably based on the fact that the Planning and Building Departments of t h i s p a r t i c u l a r municipality submitted written reports on each appeal and the Board's decisions were exactly based on such reports. In t h i s case these reports may i n themselves be questionable, i f these i n themselves uphold the planning p o l i c y or are means to legitimize some i r r e g u l a r i t i e s under the cover of the Board's relaxations. These actions, which were analyzed i n the study of appeals, c l e a r l y show that the Zoning Board of Appeals, functions on advice of the Planning Department. There i s a danger that t h i s may be used as a means of sanctioning i r r e g u l a r i t i e s . The t h i r d municipality does not have a Planning Department, however i t does have a zoning by-law and a plan-ning p o l i c y for i t s future development. The Building Inspector performs a dual function by also acting as Secretary of the Zoning Board of Appeal. This municipality i s facing a boom in construction but because of lack of s t a f f i s not able to enforce zoning regulations very s t r i c t l y . As such most of the i r r e g u l a r i t i e s are overlooked, and only a small number of cases reached the Zoning Board of Appeal. It was stated that the Board could not play any planning r o l e because of the absence of any enforcement s t a f f and also absence of clear cut planning objectives. It was also mentioned that under 123 these circumstances the Board's position was so s u p e r f i c i a l that i t could not maintain f u l l membership as the P r o v i n c i a l Government f a i l e d i n two attempts to make a successful nomi-nation during the l a s t two'years. Conclusions from Observations. A l l three Boards are broadly similar in their operation, but they d i f f e r i n respect to procedures for giving a "Notice of Hearing", and inspection of locations for cases which are under appeal. Inspection i s not c r u c i a l i n a l l cases, but i r r e g u l a r i t y i n issuing "Notice of Hearing" may be u l t r a v i r e s under the rule s of the natural j u s t i c e . It i s impossible to evaluate the consistency of the decisions of the selected Boards not only i n r e l a t i o n to the p r i n c i p l e s of natural j u s t i c e but also i n r e l a t i o n to municipal planning and zoning objectives. The minutes of the Boards' proceedings do not define the reasons for accepting or r e j e c t i n g an appeal. Omission of recorded reasons for the decision, not to speak of lack of information considered i n the decision, makes i t impossible to evaluate the consistency of decisions. It i s clear that most of the decisions are inconsistent with respect to the rules of natural j u s t i c e the observance of which i s mandatory for the operation of quasi-j u d i c i a l bodies such as the Zoning Board of Appeal. Besides i r r e g u l a r i t i e s i n the issuance of the "Notice of Hearing", 1 2 4 another c r u c i a l problem i s the fact that the Boards* opin-inons may be biased by the written opinions of the municipal o f f i c i a l s who advise the Board. The analysis of the decisions indicates that the Boards generally tend to grant relaxations i n most of the appeals presented to them. Most of the relaxations however are not' q u a l i f i e d by any conditions. This tends to ensure that the appellant i s not put to an advantageous position. The most s i g n i f i c a n t flaw i n the operation of these Boards i s that although their j u r i s d i c t i o n i s primarily based on cases a r i s i n g out of undue or unnecessary hardship, nevertheless i n no single appeal were the c r i t e r i a for determining the extent and v a l i d i t y of t h i s plea evident. Decisions for a l l the cases exhibited subjective judgment on the part of Zoning Board of Appeal which led to arbit r a r y and inconsistent decisions. Decisions of numerous cases indicated the Boards* indifference to zoning and planning objectives. This inadequate s i t u a t i o n i s d i r e c t l y a ttributable to the i n d i f f e r e n t attitudes of the members of these Boards as r e f l e c t e d by the responses contained i n the questionnaires completed by members of the Boards. Analysis of the questionnaire responses reveals a substantial lack of communication between the Boards and their respective municipal planning departments. These Board members 125 are not supplied.with adequate information about municipal planning p o l i c y nor do they f e e l that they should, be concerned with planning p o l i c i e s . The members tend to confine themselves s t r i c t l y to the zoning by-law, without making any attempt to understand the basic objectives underlying the formulation of the by-law. Most of the Board members consider that the provision of a uniform procedure for operation of the Zoning Boards of Appeal, supplemented by a p o s i t i v e statement of zoning and planning objectives, would enable them to make better and more consistent decisions. In addition to t h i s uniform procedure, the majority of the members f e e l that an occasional seminar on the functioning of the Zoning Boards of Appeal would help them to understand their functions and l i m i t s more f u l l y , and would ass i s t them to make better and more consistent zoning decisions. V SUMMARY -The Selected Zoning Boards of Appeal apparently follow various procedures i n their operation and these appear to be inconsistent with the rules of natural j u s t i c e . The relaxa-tions granted by the Boards tend to be inconsistent with the zoning and planning objectives which are evidently not taken into account by the members. The relaxations so granted i n themselves are arb i t r a r y and highly subjective, so no d e f i n i t e c r i t e r i a are set up to evaluate the extent and v a l i d i t y of 1 2 6 hardship involved i n each appeal.- The absence of recorded decisions and reasons thereof make the factors of a r b i t r a r i -ness and subjectiveness of these relaxations even more questionable. The study indicates that a substantial lack of communication exists between the Zoning Boards of Appeal and their respective municipalities in regard to their planning objectives and p o l i c i e s . The respondents to the questionnaire consider that an occasional seminar of the functioning of the Zoning Boards of Appeal would help them to understand their functions and l i m i t s more f u l l y and would as s i s t them to make better and more consistent decisions. Chapter V presents recommendations based upon obser-vations made i n the Case Study, together with contemporary experiences r e l a t i n g to improvements in the administration of the Zoning Board of Appeal. FOOTNOTES 127 1 John Delafons, Land Use Controls in the United  States (Cambridge: Joint Centre of Urban Studies of the M..I.T. , 1962), p.91. 2 William J. Goode and Paul K. Hatt, Methods i n  Soci a l Research (New York: McGraw-Hill Book Company, Inc. 1952), p.213. 3 . Ibid., p.210. 4 Ibid., p.221. 5 Ibid., p.225. CHAPTER V RECOMMENDATIONS FOR IMPROVEMENT IN THE OPERATION OF ZONING BOARD OF APPEAL Two steps are necessary i n making recommendations for improvement i n the operation of Zoning Boards of Appeal i n the Province of B r i t i s h Columbia. These w i l l be equally applicable in other parts of North America where a Zoning Board of Appeal functions under similar conditions. The f i r s t step i s to describe the basis for recommendations, that i s , the drawbacks experienced i n the operation of a Zoning Board of Appeal which are r e f l e c t e d i n the Case Study; and the contemporary experience r e l a t i n g to the operation of the Zoning Boards of Appeal i n other parts of North America. The second step i s to review the alternative solutions which have been adopted or suggested by various authorities. From these alternative solutions, recommendations can then be made and methods for their implementation can be suggested. I BASIS OF RECOMMENDATIONS The primary pre-requisite for making any recommenda-tions i s to review the exi s t i n g s i t u a t i o n from personal as well as contemporary experience. A review of the observations from the Case Study provides f i r s t hand knowledge of the 129 operation of the Zoning Boards of Appeal i n the Vancouver Metropolitan Area of the Province of B r i t i s h Columbia.. A review of available l i t e r a t u r e and case law r e l a t i n g to the operation of the Zoning Board of Appeal i n other parts of North America provides contemporary experience as a basis for formulating recommendations. Review of Observations from Case Study. Each of the three selected Zoning Boards of Appeal, i n the Vancouver Metropolitan Area of B r i t i s h Columbia, operates under a uniform p r o v i n c i a l enabling l e g i s l a t i o n , which lays down broad rules and regulations concerning pro-cedure and ambit of j u r i s d i c t i o n of these Boards. Each of these Boards follows broadly similar procedures i n i t s operation. However none of the selected Boards follow the intent of the enabling l e g i s l a t i o n or the rules of natural j u s t i c e , i n i t s operation. This tends to r e s u l t i n decisions which are inconsistent with the objectives of the zoning by-law as well as the rules of natural j u s t i c e . Reasons for such inconsistencies may be broadly grouped into three e l e -ments: L e g i s l a t i o n ; Operation; and Attitudes. L e g i s l a t i o n . The enabling l e g i s l a t i o n provides a very broad framework for the operation of the Zoning Board of Appeal. The statutory standards l a i d down by the enabling l e g i s l a t i o n for determination of "undue or unnecessary hard-ship", and for the issuance of the "notice of hearing" are 130 vague. The B r i t i s h Columbia Municipal Act i n i t s Section 709(1)(c), for example, s p e c i f i e s that: The Zoning Board of Appeal s h a l l hear and determine an appeal by an applicant. . . who alleges that enforcement of a zoning by-law with respect to s i t i n g , s i z e , or shape of a building or a structure would cause him undue hardship. . . .1 The Act f a i l s to define undue hardship and gives a broad l a t i -tude to each member of a Zoning Board of Appeal to develop i t s own c r i t e r i a to determine hardship. The enabling l e g i s l a t i o n also does not indicate l i m i t s to which relaxations can be granted. The enabling l e g i s l a t i o n s p e c i f i e s that " N o t i f i c a t i o n o of Appeal s h a l l be given by the Board to. . . It f a i l s to indicate d e t a i l s to be included i n such a notice. Each of the selected Zoning Boards of Appeal follows t h i s broad intent of the enabling l e g i s l a t i o n and issues a "notice of hearing" in d i c a t i n g time, date, place of hearing and the name and add-ress of the appellant, to each owner of property adjacent to the appellant's property. But t h i s notice f a i l s to indicate the basis or grounds of appeal, and thus does not reveal f u l l f a c t s to the opponents, which i s a contravention of the rules of natural j u s t i c e . The l e g i s l a t i o n lays down that the "Noti-f i c a t i o n . . . s h a l l be given by the Board to. . ." In the absence of any express indic a t i o n , presumably t h i s duty f a l l s 131 on the chairman' of each Board. Thus the action of issuing "Notice of Hearing" by the secretary of the Zoning Board of Appeal i s u l t r a v i r e s , being i n contravention of the maxim delegatus non potest delegare. Operation. The enabling l e g i s l a t i o n makes i t mandatory for every zoning by-law to include d e t a i l s of the procedure to be followed by i t s Zoning Board of Appeal. As the enabling l e g i s l a t i o n provides only a very broad framework, the d e t a i l s are worked out by i n d i v i d u a l municipalities adopting a zoning by-law. In general every Zoning Board of Appeal broadly follows similar procedures in i t s operation. In general, neither the minutes of the proceedings nor the case f i l e s i ndicate: the reasons for accepting or r e j e c t i n g an appeal; the factors considered i n reaching a decision; or the composition of votes which were i n favour or against an appeal. The absence of t h i s information makes the evaluation of the Board Ts operation very d i f f i c u l t . Furthermore, the d e t a i l s required i n the "Notice of Appeal" f a i l to provide e s s e n t i a l information needed for a proper relaxation, namely that: 1. There must be a proof of "undue hardship"; 2. There must be proof of unique circumstances; and 3. There must be proof that the proposed relaxations would not alter the e s s e n t i a l character of the neighbourhood.4 132 From analysis of the data of the Case Study, i t appears that these Boards tend to grant relaxations i n most of the appeals submitted to them, although most of the appeals neither meet the above mentioned requirements nor ensure that the appellant i s not put i n an advantageous p o s i t i o n by the grant of relaxation. The Boards follow d i f f e r e n t procedures for seeking advice from municipal planning department. The three d i f f e r -ent procedures followed are: 1. The Planning Zoning O f f i c e r and the Building Inspector attend hearings of the Zoning Board of Appeal, and advise the Board when so desired.. 2. The Planning O f f i c e r and the Building Inspector make written reports i n respect of each case to the Board. These reports tend to be recommenda-tions rather than mere comments on the appeal. 3. The Building Inspector acts i n dual capacity: as secretary of the Zoning Board of Appeal; and as Building Inspector, when he advises the Board on behalf of the municipality. In each of the l a s t two cases the opinion of the Board i s l i k e l y to be biased by the recommendations of the munici-pal o f f i c i a l s . Furthermore, there i s complete lack of communi-cation between the Boards and their respective planning departments. The members of these Boards are neither supplied with adequate -information about municipal planning policy, nor do they f e e l that they should be concerned with any planning p o l i c y . The members tend to confine themselves s t r i c t l y to 133 the a d m i n i s t r a t i o n of zoning by-law, without making any e f f o r t to understand the b a s i c o b j e c t i v e s u n d e r l y i n g the f o r m u l a t i o n of the zoning by-law. The r e s u l t i s that d e c i s i o n s are made without f u l l understanding of the context, and as such tend to be i n c o n s i s t e n t with zoning and p l a n n i n g o b j e c t i v e s . A t t i t u d e s . The members of these Boards n e i t h e r appre-c i a t e the i d e a of the p r e s c r i p t i o n of a s e t of i n s t r u c t i o n s f o r the grant of r e l a x a t i o n s , nor do they l i k e the i d e a of . the p r o v i s i o n of a . l i s t of a u t h o r i z e d r e l a x a t i o n s . The con-sensus of the m a j o r i t y of these members i s that such i n s t r u c -t i o n s w i l l unduly r e s t r i c t t h e i r j u r i s d i c t i o n . But at the same time i t i s important to note that these members pursue v a r i e d or any r e l a t e d f i e l d . T h e i r o p i n i o n s tend t o be i n -c o n s i s t e n t , a r b i t r a r y , , and h i g h l y s u b j e c t i v e ; f i r s t l y , because every member looks at the contents of an appeal from h i s own p o i n t of view, and secondly, because each case i s decided on i t s own me r i t s without r e f e r e n c e to any precedents which c o u l d help i n m a i n t a i n i n g c o n s i s t e n c y . The m a j o r i t y of members of the three s e l e c t e d Boards which were i n v e s t i g a t e d , were of the o p i n i o n that p r o v i s i o n s of r e g u l a t i o n s to ensure uniform procedure f o r zoning admin-i s t r a t i o n , under the e n a b l i n g l e g i s l a t i o n , supplemented by a p o s i t i v e statement of the zoning o b j e c t i v e s and p l a n n i n g p r i n c i p l e s would enable the Zoning Board of Appeal to make b e t t e r and more c o n s i s t e n t d e c i s i o n s . 134 Contemporary Experience. The contemporary experience i n the o p e r a t i o n of the Zoning Board of Appeal i n other p a r t s of North America sub-s t a n t i a t e s most of the above o b s e r v a t i o n s . T h i s c o n t e n t i o n i s b r o a d l y supported by e x i s t i n g case law and l i t e r a t u r e . For example, J u s t i c e Baldwin's alarming comment on the opera-t i o n of the Zoning Board of Appeal i n d i c a t e s t h a t : . . . unl e s s great c a u t i o n i s used and v a r i a t i o n s are granted o n l y i n proper cases the whole f a b r i c of town- and c i t y - w i d e zoning w i l l be worn through i n spots and r e v e a l e d at the edges. . .5 T h i s i s an i n d i c a t i o n of the common charge a g a i n s t the Zoning Board of Appeal: the g e n e r a l impression i s that these Boards grant r e l a x a t i o n s i n u n j u s t i f i e d cases, and thus defeat the zoning and p l a n n i n g o b j e c t i v e s of the community. Contemporary experience confirms that e n a b l i n g l e g i s -l a t i o n normally p r o v i d e s some standards which are to guide the Boards, but these standards are u s u a l l y expressed i n g e n e r a l terms. Experience a l s o r e v e a l s that through ignorance or la c k of understanding of the i n t e n t of the e n a b l i n g l e g i s -l a t i o n and the u n d e r l y i n g o b j e c t i v e s of the zoning by-law, the Zoning Board of Appeal may become a device of p o t e n t i a l danger r a t h e r than s a f e t y f o r the p u b l i c . In t h i s c o n n e c t i o n , i t has been s a i d that ". . . there i s a b a s i c l a c k of under-s t a n d i n g on the pa r t of . . . the Zoning Board of Appeal. . . 135 there i s d e f i n i t e l y the problem of unclear s t a t u t e s and 7 unclear o r d i n a n c e s . " I t has been h e l d that a zoning by-law should p r o v i d e standards to guide a Zoning Board of Appeal i n g r a n t i n g r e l a x a t i o n s and to ensure that the Board does not enjoy un-8 l i m i t e d power to e x e r c i s e d i s c r e t i o n . In numerous cases the North American c o u r t s have h e l d that the zoning by-law must s p e l l out l i m i t s of t h i s d i s c r e t i o n a r y power by the e s t a b l i s h -9 ment of some standards to guide the Zoning Board of Appeal. The c o u r t s f e e l that the Boards use a r b i t r a r y c r i t e r i a i n d e c i d i n g appeals. I t i s mentioned i n the North-western U n i v e r s i t y Law Review t h a t : In making i t s determinations the Board c o n s i d e r s s i m i l a r v a r i a t i o n s i n the area. . . a tendency to grant a v a r i a t i o n i f the other v a r i a t i o n s (non-conforming uses) are next door and to r e f u s e i f they are at the other end of the block.10 These a r b i t r a r y and s u b j e c t i v e d e c i s i o n s are c o n s i d e r e d c r i t i c a l because ". . . one v a r i a t i o n becomes the b a s i s f o r subsequent v a r i a t i o n . . . opening the way f o r complete d e s t r u c -t i o n of the e f f e c t i v e n e s s of the zoning ordinance." 1" 1" I t has been f e l t that the Board's f a i l u r e to s p e l l out reasons f o r i t s d e c i s i o n s and c r i t e r i a used to determine the e x i s t e n c e of p a r t i c u l a r hardship has so f a r prevented a growth of precedents which may be a p p l i c a b l e to subsequent 136 12 requests. It has also been f e l t generally that large per-centage of relaxations granted by the Zoning Board of Appeal indicates either that the Board "does not base i t s findings on a proper set of standards or that the zoning ordinance i s f a u l t y . " 1 3 The vagueness of the l e g i s l a t i v e standards which are to guide the Board have presented a challenge to the courts throughout North America, and a substantial body of case law has resulted. . This case law has established c e r t a i n general standards and p r i n c i p l e s to be followed by the Zoning Board of Appeal. Operation. It has been indicated that one of the causes of u n j u s t i f i e d grant of relaxations i s the "lack of adequate rules of procedure and operating practice for the Board. However i t i s now generally accepted that i f the Zoning Board of Appeal grants a relaxation " i t must at the 15 same time make certa i n written findings." These written decisions should state s p e c i f i c reasons for the grant or 16 r e f u s a l of an appeal. To determine undue or unnecessary hardship, the courts have now developed f i v e c r i t e r i a to guide the Boards: 1. The appellant must show that i f he complies with the provisions of the ordinance, he can make no reasonable use of his property. 137 2. That the hardship r e s u l t s from the application of the zoning by-law to the property of the appellant. 3. That the hardship of which the appellant com-plains i s suffered by his property d i r e c t l y , and not by others. 4. That the hardship i s not the r e s u l t of the appellant's own actions. 5. That the hardship i s peculiar to the property of the appellant.17 Attitudes. Calvin S. Hamilton has drawn a broad opinion about the attitudes of the members of the Zoning Board of Appeal,' he mentions that: Most board of appeals members know l i t t l e or nothing about planning, and frequently care less. They are generally p o l i t i c a l appointees and serve for p o l i t i c a l reasons, or they see a good thing i s being done on the board. They may want to gain prestige or they may want to gain monetary enhancement, perhaps not d i r e c t l y , but i n d i r e c t l y through friends or subsequent business arrangements.18 II ALTERNATIVE SOLUTIONS To ameliorate the defective operation of the zoning administration of the Zoning Board of Appeal, several a l t e r -native remedies have been suggested and adopted throughout North America. Most of these improvements, either as adopted or suggested, are connected with the l e g i s l a t i v e aspects of the zoning by-law, the administration of the Zoning Board of Appeal, and the education of the public as well as the mem-138 bers of the Zoning Board of Appeal. Some representative examples of these alternative solutions to the problems i n v o l -ved i n the e f f e c t i v e operation of the Zoning Board of Appeal are discussed here. For proper operation of the.Zoning Board of Appeal, John W. Reps has suggested the following remedies.: 1. Statutes and ordinances should specify c l e a r l y  the separate powers of the Board. Simple and unambiguous statements should indicate generally the grounds on which relaxations may be granted. 2. Rules of procedure should be required. This requirement w i l l force the Board to consider the procedure for hearing appeals, the nature of evidence required, and the basis for making decisions. 3. The Board should adopt administrative forms that  focus attention on the proper requirements for  relaxations. Forms on which appeals to the Board are made should require the applicant to state why he i s s u f f e r i n g the hardship, why he believes the hardship i s unique, and why the variance would not alter the character of the neighbourhood. 4. Maps showing the location of variances and except- ions should be mandatory. Maps indi c a t i n g such locations would be a constant reminder of the e f f e c t of their actions and might exercise a r e s t r a i n i n g action. 5. The lay-Board should be replaced by a. Board of  experts or by a^  single Zoning Appeals Administrator. It i s thought that with zoning by-laws increasing in complexity and d e t a i l s and with the growing demands for more po s i t i v e zoning as an aid to vigor-ous community planning and urban renewal, zoning appeals should be reviewed by those q u a l i f i e d through professional t r a i n i n g and experience. 139 6. The general standard of unnecessary hardship might  be replaced by more s p e c i f i c rules. It i s thought that various types of hardship situations might be defined in which the Board can grant r e l a x a t i o n s . ^ Besides these suggestions Reps i s of the opinion that the members of the Zoning Board of Appeal should be educated as to their r e s p o n s i b i l i t i e s and l i m i t a t i o n s . It has been popu-l a r l y suggested that undue or unnecessary hardship pleaded i n the zoning appeals should s a t i s f y four conditions: 1. That s t r i c t enforcement of the zoning by-law would impose an unreasonable r e s t r a i n t on the use of property. 2. That the hardship i s owing to unique circum-stances applying to the appellant's property. 3. That the granting of the va r i a t i o n w i l l not disrupt the zoning plan or injure adjacent . property. 20 4. That the hardship i s not s e l f - i n f l i c t e d . It has also been suggested that the requirements of notice, public hearing, and findings of fact should be pre-c i s e l y defined. Several means of in d i v i d u a l n o t i f i c a t i o n of hearing are suggested and used. While some communities have adopted the use of a mailed notice, others use a mailed notice as well as an advertisement i n a l o c a l newspaper, and yet others use both of these methods and also post a notice of hearing on the property under appeal. The contents of notice of hearing, i n each of these cases, include time and 21 place of hearing and the nature of the appeal. 140 Contemporary experience shows that most of the Boards are r e q u i r e d to r e c o r d reasons f o r .their decisions.. For example i n the Province of Ontario, the Committee of Ad j u s t -ment (another name f o r the Zoning Board of Appeal) i s r e q u i r e d to make i t s d e c i s i o n s i n w r i t i n g and to set out reasons f o r the d e c i s i o n which has to be signed by the members who concur to the d e c i s i o n . The r e c o r d i n g of reasons f o r d e c i s i o n s i s important, not only because i t i s r e q u i r e d by the. Act but fo r other reasons as w e l l . James B. M i l n e r has s t a t e d t h i s requirement i s sound, f o r three reasons: F i r s t and most important, i t should f o r c e the committee to th i n k more c l e a r l y about i t s case than i t would i f i t could give o r a l reasons at the hearing. Second, i t enables the a p p l i c a n t or h i s o p p o s i t i o n to study the reasons c a r e f u l l y i n case he d e s i r e s to appeal to the municipal board. T h i r d , i t provides a r e c o r d f o r the municipal board to study on the appeal, i f . i t should be so interested.22 On the o p e r a t i o n a l aspect, s e v e r a l a l t e r n a t i v e s have been suggested and adopted. One a l t e r n a t i v e i s that the Zoning Board of Appeal should continue to f u n c t i o n as such by i n c o r p o r a t i n g most of the a f o r e s a i d suggested improvements. One of the other a l t e r n a t i v e s suggested i s that the Zoning Board of Appeal be re p l a c e d by a Zoning A d m i n i s t r a t o r . Yet another a l t e r n a t i v e i s a combination of the two, where a Zoning Administrator may be appointed to hear and determine a l l a p p l i c a t i o n s f o r r e l a x a t i o n s from the zoning by-law and appeals a r i s i n g out of h i s d e c i s i o n s may then be taken to the 141 24 Zoning Board of Appeal. Here ".the Zoning Administrator i s e s s e n t i a l l y a f u l l - t i m e , one man Zoning Board of Appeal" and "the Zoning Board of Appeal i s e s s e n t i a l l y a court of review, which on appeal reviews the Zoning Administrator's deci-25 sions." The Zoning Administrator does not have f u l l d i s -cretion, and i s authorized to grant relaxations only i f cer t a i n conditions are s a t i s f i e d by a case. In order to att a i n uniformity i n the grant of relaxations on a metropolitan or regional scale, i t has been suggested that the Zoning Board of Appeal should work on a metropolitan or regional basis and not on a municipal basis. It i s thought that "such a move would also have desirable effect on securing a more or less uniform treatment of applications for variances and exceptions 26 over the entire metropolitan (or regional) area." Richard F. Babcock recommends the creation of a state-wide zoning commission with two broad areas of authority: 1. The commission should be authorized to establish uniform rules and methods for procedure for a l l hearings by boards or l o c a l l e g i s l a t u r e s under l o c a l ordinances; 2. The commission would hear a l l appeals from f i n a l r u l i ngs of l o c a l bodies, whether those appeals were made by a board of appeals or a municipal legislature.27 Babcock suggests that the f i r s t of these powers w i l l ensure that every appeal ir r e s p e c t i v e of i t s location w i l l be judged by a similar standard and heard under i d e n t i c a l pro-cedures. It i s thought that the power of such a commission 142 to hear appeals from l o c a l bodies w i l l provide a general case 28 law. However the Committee of Adjustment, which i s an equivalent of the Zoning Board of Appeal, i n Ontario provides a more sophisticated procedure on the basis of which some improvements can be made i n the exis t i n g procedure followed by the Zoning Board of Appeal. Some of the s i g n i f i c a n t features of the Committee of Adjustment are: 1. The Committee of Adjustment i s required to adopt a procedure which i s approved by the Minister of Municipal A f f a i r s . No Committee can hear or determine any matter unless such rules have been adopted and approved by the Minister. 2. The decision of the Committee of Adjustment, whether granting or r e j e c t i n g an appeal, must be i n writing, must set out the reasons for the decision, and must be signed by the members who concur i n the decision. 3. The Committee of Adjustment has to send copies of the decisions to the applicant, to the Minister and to other persons as s p e c i f i e d i n the enabling l e g i s l a t i o n . 4. The members of the Committee of Adjustment are required to formulate a number of general p r i n c i p l e s for the various kinds of appeals with which they deal and these are required to be used as a guide when an appeal i s under consideration. 5. The Committee of Adjustment members are supplied with detailed instructions regarding the zoning functions and objectives, the functions of the Committee and other r e l a t e d matters.29 The members are also supplied with i l l u s t r a t e d hypo-t h e t i c a l cases, to enable them to understand the types of relaxations that can be granted and the rel a t e d s i t u a t i o n under which these can be granted. Specimen examples may be seen i n diagrams 1 to 8. I l l RECOMMENDATIONS 143 The alternatives provide a basis for making recommend-ations for l e g i s l a t i v e , administrative, and r e l a t e d improve-ments i n the operation of the Zoning Board of Appeal. However, these recommendations have to take into account the l e g i s l a t i v e and p o l i t i c a l requirements, the administrative and f i n a n c i a l aspects, and they must also consider various implications i n -volved i n the implementation of these recommendations. It i s , therefore, necessary to consider various ramifications of these aspects i n order to make recommendations. L e g i s l a t i v e and P o l i t i c a l Aspects. The Zoning Board of Appeal derives j u r i s d i c t i o n from the p r o v i n c i a l enabling l e g i s l a t i o n . Unless expressly stated, t h i s authority can not be sub-delegated for the maxim delegatus  non potest delegare applies. Any suggested change i n the operation of the Zoning Board of Appeal has to be p o l i t i c a l l y f e a s i b l e so as to be incorporated into the enabling l e g i s l a t i o n . Administrative Aspects. Results of good l e g i s l a t i o n are dependent on e f f e c t i v e enforcement of the enacted regulations. Thus any improve-ments i n the l e g i s l a t i o n must consider administrative f e a s i -b i l i t y for their enforcement. The most important aspect i s to determine i f an adequate administrative framework can be provided to f a c i l i t a t e the suggested change in the operation of the Zoning Board of Appeal. 144 F i n a n c i a l A s p e c t s . Any r e c o m m e n d a t i o n s f o r change i n t h e o p e r a t i o n o f t h e Z o n i n g B o a r d o f A p p e a l w i l l have t o c o n s i d e r f i n a n c i a l f e a s i b i l i t y o f t h e s u g g e s t e d c h a nge, o r i n o t h e r words c o n s i d e r how t h e s u g g e s t e d change i s t o be f i n a n c e d . As t h e Z o n i n g B o a r d o f A p p e a l i s n o r m a l l y f i n a n c e d o u t o f t h e muni-c i p a l b u d g e t , w h i c h i t s e l f i s g e n e r a l l y meagre, i t i s v e r y i m p o r t a n t t o c o n s i d e r t h e f i n a n c i a l f e a s i b i l i t y o f t h e s u g g e s t e d c h a n g e s i n t h e o p e r a t i o n o f t h e B o a r d . O b v i o u s l y i mprovements w i t h i n t h e e x i s t i n g framework o f t h e Z o n i n g B o a r d o f A p p e a l w i l l c o s t much l e s s t h a n a c o m p l e t e c h a n g e -o v e r t o an o p e r a t i o n t h a t w o u l d i n v o l v e t h e employment o f a Z o n i n g A d m i n i s t r a t o r and t h e n e c e s s a r y incumbent s t a f f . A l l t h e s e a s p e c t s h a v e t o be r e v i e w e d w i t h r e s p e c t t o t h e i m p l i c a t i o n s i n v o l v e d i n t h e i m p l e m e n t a t i o n o f t h e r e c o m m e n d a t i o n s . The r e c o m m e n d a t i o n s , however w e l l t h o u g h t -o u t and w e l l a n a l y z e d t h e y may be, w i l l n o t be o f any b e n e f i t u n l e s s t h e y c a n be i m p l e m e n t e d e f f e c t i v e l y . Recommendat i o n s . On c o n s i d e r a t i o n o f t h e l e g i s l a t i v e , p o l i t i c a l , a d m i n i s t r a t i v e , and f i n a n c i a l a s p e c t s and i m p l i c a t i o n s o f i m p l e m e n t a t i o n t h e r e o f , t h e f o l l o w i n g r e c o m m e n d a t i o n s a r e made: 145 L e g i s l a t i v e . S i n c e t h e Z o n i n g B o a r d o f A p p e a l p r i -m a r i l y d e a l s w i t h c a s e s a r i s i n g o u t o f t h e s t r i c t e n f o r c e m e n t o f z o n i n g b y - l a w a nd i n t e r p r e t a t i o n t h e r e o f , i t i s s u g g e s t e d t h a t t h e z o n i n g b y - l a w s h o u l d be p r e p a r e d v e r y c a r e f u l l y s o as t o a v o i d a m b i g u i t i e s w h i c h may l e a d t o m i s i n t e r p r e t a t i o n s . The Z o n i n g B o a r d o f A p p e a l s h o u l d n o t be e x p e c t e d t o s o l v e t h e p r o b l e m s c r e a t e d by a p o o r z o n i n g b y - l a w . The O n t a r i o D e p a r t m e n t o f M u n i c i p a l A f f a i r s h a s i n a p p r e c i a t i o n o f t h i s p r o b l e m l a i d down t h a t : . . . no c o u n c i l o r p l a n n i n g b o a r d when p r e p a r i n g a z o n i n g b y - l a w s h o u l d i g n o r e t h e p r i n c i p l e s o f z o n i n g o r make i n s u f f i c i e n t s t u d i e s a n d t h e n e x -p e c t t h e m a t t e r t o be s o l v e d by t h e a p p o i n t m e n t o f a C o m m i t t e e o f A d j u s t m e n t ( Z o n i n g B o a r d o f A p p e a l ) . . . Many C o m m i t t e e s o f A d j u s t m e n t ( Z o n i n g B o a r d s o f A p p e a l ) a r e f a c e d w i t h p o o r z o n i n g b y -l a w s , w h i c h makes t h e i r t a s k more d i f f i c u l t . . . 0 The z o n i n g b y - l a w s h o u l d c o n t a i n s i m p l e s t a t e m e n t s t h a t c a n be r e a d a n d u n d e r s t o o d b y t h e a v e r a g e c i t i z e n . F u r t h e r m o r e , i n t e r p r e t a t i o n o f t h e t e r m " h a r d s h i p " , w i t h o u t any e x p l i c i t t r e a t m e n t i n t h e e n a b l i n g l e g i s l a t i o n , l e a d s t o many c o n t r o v e r s i a l d e c i s i o n s . E x p l i c i t i n t e r p r e t a t i o n o f t h i s t e r m s h o u l d be c l e a r l y e x p l a i n e d i n s i m p l e r u l e s s o t h a t t h e l a y members o f t h e Z o n i n g B o a r d o f A p p e a l may u n d e r s t a n d i t . I t i s recommended t h a t t h e f o l l o w i n g f a c t o r s b e i n c l u d e d i n t h e i n t e r p r e t a t i o n o f "undue o r u n n e c e s s a r y h a r d s h i p " : 146 1. that there are p r a c t i c a l d i f f i c u l t i e s which make the carrying out of the s t r i c t l e t t e r of the by-law unreasonable or impossible; 2. that the circumstances which create the p r a c t i c a l d i f f i c u l t i e s are peculiar to the property only and not common to the area; 3. that by complying with the by-law, the applicant can make no reasonable use of the property; 4. that the necessity for the variance i s not one of convenience or monetary gain, where compliance with the by-law i s possible and reasonable; 5. that the necessity for the variance r e s u l t s only from the application of the by-law to the property and not from any other factor; 6. that the applicant has not himself created the circumstances that prevent him from complying with the s t r i c t terms of the by-law. 7. that the application has s u f f i c i e n t merits of i t s own not to create a precedent for similar requests from o t h e r s . 3 1 These sections on "Notice of Hearing" and "Notice of Appeal" should express a l l d e t a i l s which are mandatory for the processing of the appeal. A l l r e l a t e d forms should be standardized to ensure uniformity i n action as well as uniformity in records. The required forms may be adopted at the p r o v i n c i a l l e v e l . The "Forms for Zoning Adminis-t r a t i o n " suggested by the American Society of Planning O f f i c i a l s may be improvised to s u i t l o c a l conditions. The specimen of a "Notice of Hearing" and a "Notice of Appeal" may be seen i n Appendix V. 147 Administrative. The Zoning Board of Appeal should be required to adopt a procedure for i t s operation and as such procedure should be subject to the approval of the Department of Municipal A f f a i r s . The Department of Municipal A f f a i r s should approve t h i s procedure only when i t conforms to the inherent intention of the enabling l e g i s l a t i o n , rules of natural j u s t i c e and rules of j u d i c i a l review. The procedure adopted by a Zoning Board of Appeal should include the following factors in order to ensure salutary r e s u l t s : 1. It should expressly state r e l a t i o n s h i p of the Zoning Board of Appeal with the public as well as the administrative and l e g i s l a t i v e agencies. 2. It should c l e a r l y i d e n t i f y : the duties and res-p o n s i b i l i t i e s of the Zoning Board of Appeal as a whole; as well as i t s i n d i v i d u a l members. 3. It should ensure Order, Regularity, Continuity, Consistency, P r e d i c t a b i l i t y , Control and Account-a b i l i t y i n order to e l i c i t the consent, coop-eration and support of affected part i e s . 4. It should ensure f a i r and equal treatment. 5. It should ensure accurate and complete records of the Board's operation. 6. It should ensure that a l l the members of the Zoning Board of Appeal bear in mind the intent and purpose of the Zoning by-law and the munici-pal plan or planning po l i c y , and understand the rules of natural j u s t i c e and j u d i c i a l review. 7. It should formulate a number of general p r i n c i -ples for the various kinds of applications with which the Zoning Board of Appeal deals and these standards should be kept in mind as a guide when an application i s under consideration. 148 8. It should ensure education of the members as well as the public as to the functions of the Zoning Boards of Appeal. The members of the Board should occasionally meet with municipal planning o f f i c i a l s to c l a r i f y planning and zoning objectives. The public should be educated as to what the Zoning Board of Appeal can and cannot do. In the appointment of members to the Zoning Board of Appeal, although no q u a l i f i c a t i o n s can be set, i t i s recommended that the following q u a l i t i e s suggested by Casner and Leach of the Harvard Law School be sought i n each"member: 1. Fact consciousness. an insistence upon getting the f a c t s , checking their accuracy, and slough-ing off the element of conclusion and opinion. 2. _A sense of relevance, the capacity to recognize what i s relevant to the issue at hand and to cut away irrelevant f a c t s , opinions, and emotions which can cloud the issue. 3. Comprehensiveness, the capacity to see a l l sides of a problem, a l l factors that bear upon i t , and a l l possible ways of approaching i t . 4. Foresight. the capacity to take the long view, to anticipate remote and c o l l a t e r a l consequences, to look several moves ahead i n a p a r t i c u l a r chess game that i s being played. 5. Lingual sophistication, an immunity to being fooled by words and catch phrases; a r e f u s a l to accept verbal solutions that merely conceal the problem. 6. Precision and persuasiveness of speech, that mastery of language that involves (a) the a b i l i t y to state exactly what one means, no more, no l e s s , and (b) the a b i l i t y to reach other men with one's own thought, to create i n their minds the picture that i s one's own. And 149 7. prevading a l l the re s t , and possibly the only one that i s r e a l l y basic, s e l f - d i s c i p l i n e i n habits and thoroughness, an abhorrence of s u p e r f i c i a l i t y and approximation.32 IV IMPLEMENTATION These recommendations suggest improvements which can be achieved by incorporating c l a r i f i c a t i o n s , rules, regula-tions, and some standards i n the exis t i n g framework of zoning administration. In the case of B r i t i s h Columbia, these recommendations do not c a l l for any extension of powers delegated under the enabling l e g i s l a t i o n . Furthermore these recommendations do not include controversial f i n a n c i a l and p o l i t i c a l implications. The implementation of these recommendations w i l l involve action on the part of the government responsible for enacting the enabling l e g i s l a t i o n , and the municipal govern-ments. In the case of B r i t i s h Columbia and other provinces of Canada, implementation of these recommendations w i l l involve action on the part of p r o v i n c i a l and municipal governments. The p r o v i n c i a l government w i l l have to make the follow-ing regulatory changes i n the enabling l e g i s l a t i o n : 1. Provide e x p l i c i t statement of duties, responsi-b i l i t i e s and ambit of j u r i s d i c t i o n of the Zoning Board of Appeal. 150 2. Provide simple interpretation of terms such as "undue or unnecessary hardship". 3. Provide clear statement of information required to be included i n the "Notice of Hearing" and the "Notice of Appeal". 4. Prescribe standard specimen forms and schedules for appeals, notices, and records. 5. Require written decisions which should include the reasons or basis for decision. 6. Adopt a province wide uniform procedure for the operation of the Board. 7. Provide simple instructions to the members of the Zoning Board of Appeal. The instructions should include f u l l d e t a i l s of the member's duties, r e s p o n s i b i l i t i e s and li m i t a t i o n s . I l l u s t r a t e d specimens similar to those provided by the Ontario Department of Municipal A f f a i r s (see Diagrams 1 to 8 at page 152-155) to members of the Zoning Board of Appeal. 8. Make a p o l i c y to nominate such members on the Zoning Board of Appeal who s a t i s f y most of the conditions l a i d down by Casner and Leach (see page 148). Furthermore i t should-endeavor to see that such members have some interest i n community planning as well. 9. There should be an annual review of appeals decided by a Zoning Board of Appeal. In t h i s review technical experts, namely, the munici-pal planner and the municipal s o l i c i t o r , should explain to the members any i r r e g u l a r i t i e s which they may have come across. This w i l l reduce any tendency on the part of appointees to abuse their p o s ition. Every municipality having a Zoning Board of Appeal w i l l have to take the following action for implementation of the recommendations: 151 1. It should make sure that the zoning by-law contains simple statements that can be read and understood by the average c i t i z e n , and that the zoning by-law does not contain any ambiguities that may lead to misinterpreta-ti o n . 2. It should make sure that the orders of the Zoning Board of Appeal are s t r i c t l y enforced and v i o l a t i o n s are charged. 3. It should adopt standard specimen forms and schedules for appeals, notices, and records. 4. It should adopt a uniform procedure as included i n the enabling l e g i s l a t i o n . 5. It should improve communication between the Zoning Board of Appeal and i t s (municipality's) departments. It should inform the Board of i t s zoning and planning objectives. 6. It should educate the public about the functions, duties and li m i t a t i o n s of the Zoning Board of Appeal. The public should be informed of a l l information that i s required to be furnished i n a "Notice of Appeal". The p r o v i n c i a l government should sponsor an occasional seminar on the functioning of the Zoning Board of Appeal, Such a seminar would be help f u l for the members of the Zoning Board of Appeal to understand their functions and r e s p o n s i b i l i t i e s more f u l l y and to exchange ideas which might be h e l p f u l i n making their operation more e f f i c i e n t . 152 DIAGRAM I MINOR VARIANCE A BUILDING LOCATED IN ERROR TOO CLOSE TO LOT BOUNDARIES DIAGRAM II MINOR VARIANCE PROPOSED ENLARGEMENT WHICH WILL ENCROACH INTO A REQUIRED YARD Source: Department of Municipal A f f a i r s , Community Planning Branch, Toronto (Ontario). 153 DIAGRAM III MINOR VARIANCE REDUCTION IN YARD REQUIREMENTS BECAUSE OP SHAPE OP LOT DIAGRAM IV MINOR VARIANCE REDUCTION IN LOT SIZE S T R E E T L I N E 4 7 Vi 4 7 ' / , ' Source: Department of Municipal A f f a i r s , Community Planning Branch, Toronto (Ontario). DIAGRAM V 154 MINOR VARIANCE REDUCTION IN YARD REQUIREMENTS DUE TO PECULIAR FEATURE IN LOT S T R E E T L I N E DIAGRAM VI MINOR VARIANCE REDUCTION IN PARKING SPACE REQUIREMENTS S T R E E T L I N E Source: Department of M u n i c i p a l A f f a i r s , Community Planning Branch, Toronto (Ontario) | 155 DIAGRAM V I I EXTENSION OP NON-CONFORMING USE PERMITTED ON CONDITION THAT PARKING LOT AND LANDSCAPING BE PROVIDED DIAGRAM V I I I EXTENSION OF A COMMERCIAL USE INTO A RESIDENTIAL ZONE ON THE CONDITION THAT LANDSCAPING BE PROVIDED ADJACENT TO RESIDENTIAL LAND Source: Department of M u n i c i p a l A f f a i r s , Community Planning Branch, Toronto ( O n t a r i o ) . V SUMMARY 1 5 6 A review of the observations of the Case Study and contemporary zoning experience, and a review of alternative solutions suggested or adopted for improvement in the opera-ti o n of the Zoning Board of Appeal form a basis for recommenda-tions made in t h i s study. The s p e c i f i c recommendations are made after taking into account the l e g i s l a t i v e , p o l i t i c a l , administrative and f i n a n c i a l implications. Implementation of these recommendations w i l l involve action that must be taken both at the p r o v i n c i a l and municipal l e v e l s . 157 FOOTNOTES 1 Province of B r i t i s h Columbia, The Municipal Act, RSBC 1960, Chapter 255 ( V i c t o r i a : The Queens Printer, 1964), p.3241. 2 Ibid., Section 709(2). 3 Ibid. 4 John W. Reps, "Discretionary Powers of the Board of Zoning Appeals", Law and Contemporary Problems, Vo. 20, No.2, Spring 1955, p.283-88. 5 Baldwin J., i n Heady v Zoning Board (1953) as quoted i n James B. Milner, Community Planning, A Casebook on Law and  Administration (Toronto: University of Toronto Press, 1962), p.688. 6 Reps, op. c i t . , p.280. 7 Martin J. Rody and Herbert H. Smith, Zoning Primer, (West Trenton, N.J., Chandler-Davis Publishing Co.7 1960), p.29. 8 E. C. Yokley, Zoning Law and Practice ( C h a r l o t t e s s v i l l e : The Michie Company, 1953), p.327. 9 Packer Collegiate I n s t i t u t e v University of the  State of New York, 298, N.Y. 184; United States v Grimand 220 U.S. 506; F i e l d v Clark, 143, U.S. 649. 10 Joint Sub-committee of Neighbourhood Conservation, Report of the Technical Staff, App. DJ(City of Chicago, February 28, 1952) as quoted i n Northwestern University Law lie view, Vol. 48 (1953), p. 479. 158 11 Ibid., p.480 12 "Amortization of Property Uses Not Conforming to Zoning Regulations", University of Chicago Law Review, Vol.9, 1942, p.492-94. 13 Ibid. 14 Martin and Smith, op. c i t . , p^29. 15 National Lumber Products Co. v Panzio, 133 N.J.L. 95, 42A. 2d. 753(1945). 16 ASPO Planning Advisory Service, "Characteristics of Zoning Appeal Boards", ASPO Planning Advisory Service Report  No. 197, (Chicago: American Society of Planning O f f i c i a l s , 1965), p.2. 17 P h i l i p P. Green, "The Power of the Zoning Board of Adjustment to Grant variances from the Zoning Ordinances", North Carolina Law Review, Vol.29, 1951, p.245. 18 Calvin S. Hamilton, "Zoning Administration", Planning 1962 (Chicago; American Society of Planning O f f i c i a l s , 1962), p.71. 19 Reps, op. c i t . , p.294-97. 20 Northwestern University Law Review, op. c i t . , p.478. 21 ASPO Planning Advisory Service, "Forms for Zoning Administration", ASPO Planning Advisory Service Information  Report No.33 (Chicago: American Society of Planning O f f i c i a l s , 1951), p.27. 159 22 James B. Milner, "The Committee of Adjustment: Zoning and Land Values", Ontario Planning, Vol.5, No. 8, 1958. 23 Huber E. Smutz, "Is Zoning Wagging the Dog?", Planning 1955, {Chicago: American Society of Planning O f f i c i a l s , 1955), p.104. 24 Ibid., 25 Ibid. 26 Beverley J. Pooley, Planning and Zoning i n the United  States (Ann Arbor, Michigan: Michigan Legal Publications, 1961), p.71. 27 Richard F. Babcock, "The Unhappy State of Zoning Administration i n I l l i n o i s " , The University of Chicago Law  Review, Vol. 26, 1959, p.538. 28 Ibid. 29 Department of Municipal A f f a i r s , Committees of  Adjustment - Zoning Functions (Toronto: Community Planning Branch, Department of Municipal A f f a i r s , March 1965), pp.1-14. 30 " P r i n c i p l e s to Assist Committees of Adjustment", Ontario Planning, Vol. 3, No. 6, July 1956, p.5. 31 as quoted i n James B. Milner, "Planning Growth, and Change Under the Law", PLAN (Ottawa: Town Planning In s t i t u t e of Canada), Vol. 4, No. 1, p.43. CHAPTER VI EPILOGUE The epilogue i s comprised of a summary of the thesis and the study method, an evaluation of the v a l i d i t y of the hypothesis, and suggestions for further research. I SUMMARY REVIEW OF THE THESIS AND THE STUDY METHOD The objective of the thesis i s to analyze the domi-nant features of the Zoning Board of Appeal, i n order to determine i t s usefulness as a safety valve i n zoning and planning administration, as well as to test i t s usefulness i n the implementation of municipal planning p o l i c y . It i s hypothesized that a po s i t i v e statement of zoning objectives and planning p r i n c i p l e s , together with a uniform set of procedures to be followed by the Zoning Board of Appeal, are necessary for e f f e c t i v e implementation of municipal planning po l i c y . The objective of the Case Study i s to test the v a l i d i t y of the hypothesis. The Study analyzes the dominant features of the Zoning Board of Appeal for selected munici-p a l i t i e s in the Vancouver Metropolitan Area of B r i t i s h 161 Columbia. The analysis includes evaluation of the e f f e c t i v e -ness of the Zoning Board of Appeal i n the dispensation of ju s t i c e in cases a r i s i n g out of undue or unnecessary hardship caused by the enforcement of the zoning by-law, i t s e f f e c t i v e -ness i n the formulation and implementation of municipal planning policy, and the consistency i n i t s decisions with respect to zoning and planning objectives as well as to the rules of natural j u s t i c e . It i s assumed that every Zoning Board of Appeal operating under uniform enabling l e g i s l a t i o n functions under similar circumstances. On t h i s assumption, three Zoning Boards of Appeal i n the Vancouver Metropolitan Area are selected for the Case Study. Since the Boards do not make written decisions which would document the reasons or basis for such decisions, i t i s assumed that the basis of these decisions i s r e f l e c t e d in"the basic attitudes of the members of the Zoning Board of Appeal. To form a background for the Case Study, t r a d i t i o n a l and contemporary concepts of zoning and planning are reviewed. In the Case Study, each Zoning Board of Appeal i s reviewed i n the context of i t s : functions; operation; ambit of j u r i s -d i c t i o n ; and influence of i t s decisions on municipal planning po l i c y . The investigation consists of three major parts. 162 The f i r s t part reviews the operation of the selected. Zoning Boards of Appeal; the second part relates to interviews with the members of the Zoning Boards of Appeal; and the t h i r d part reviews the interviews with the r e l a t i v e municipal o f f i c e r s concerned with the enforcement of zoning by-law i n each municipality. The Study explores the reasons for inconsistencies i n the decisions of the Zoning Board of Appeal. Basic reasons for these inconsistencies are grouped into three categories: ambiguities i n the l e g i s l a t i o n ; i r r e g u l a r i t i e s i n the operation of the Zoning Board of Appeal; and i n d i f f e r e n t attitudes of the members of the Zoning Board of Appeal, to municipal zoning and planning objectives. It i s observed that the enabling l e g i s l a t i o n does not provide interpretation of the most important term "undue or unnecessary hardship" and also does not indicate the requirements or standards to be followed i n the issuance of "Notice of Hearing" or the "Notice of Appeal'i'. It i s also observed that the selected Zoning Boards of Appeal neither indicate i n their decisions the reasons for accepting or r e j e c t i n g an appeal, nor the factors considered i n reaching such decisions. There appears to be a complete lack of communication between the Zoning Boards of Appeal investigated, and their 163 respective municipal Planning Departments.' The members of the Boards are not supplied with adequate information about municipal planning p o l i c y and they do not apparently f e e l concerned about the lack of such information. The members tend to confine themselves to administration of the zoning by-law only and make their decisions without f u l l understanding of the implications for community planning and as such their decisions tend to be inconsistent with zoning and planning objectives. It i s observed that members of the Zoning Boards of Appeal f e e l that p r e s c r i p t i o n of a set of instructions for the grant of relaxations or provision of a l i s t of autho-r i z e d relaxations w i l l narrow down their j u r i s d i c t i o n . But at the same time the majority of the members interviewed were of the opinion that provision of regulations to ensure uni-form procedure for zoning administration, under the enabling l e g i s l a t i o n , supplemented by a po s i t i v e statement of zoning objectives and planning p r i n c i p l e s would enable the Zoning Board of Appeal to make better and more consistent decisions. A review of the observations along with a review of contemporary experience, i n the operation of the Zoning Board of Appeal i n other parts of North America, provides a basis for consideration of alternative solutions which have been adopted or suggested to resolve some of the problems faced i n the operation of the Zoning Board of Appeal. These a l t e r -164 native solutions are then reviewed i n the context of l e g i s -l a t i v e , p o l i t i c a l , administrative, and f i n a n c i a l aspects, and the implications of their implementation are considered. Thereafter, cer t a i n f e a s i b l e l e g i s l a t i v e and administrative recommendations are made for achieving improvements i n the operation of the Zoning Board of Appeal. A method for the implementation of these recommendations, which w i l l involve action at the p r o v i n c i a l and municipal government l e v e l , i s suggested. II EVALUATION OF THE HYPOTHESIS The hypothesis of the thesis i s that "a p o s i t i v e statement of zoning objectives and planning p r i n c i p l e s together with a uniform set of procedures to be followed by the Zoning Board of Appeal i s necessary for e f f e c t i v e implementation of municipal planning po l i c y " . Each aspect of t h i s hypo-thesis i s considered below i n the context of the thesis. A P o s i t i v e Statement of Zoning Objectives and Planning  P r i n c i p l e s . The t r a d i t i o n a l and contemporary concepts of zoning objectives and planning p r i n c i p l e s have been described. The conclusion drawn from the Case Study, together with obser-vations based on a review of the contemporary experience i n other parts of North America provide evidence that members 165 of the Zoning Board of Appeal are not provided with a posit i v e statement of zoning objectives and planning p r i n c i p l e s . The re s u l t i s that the members of the Zoning Board of Appeal r e l y on the zoning by-law and make decisions without f u l l under-standing of the context. Such decisions tend to be inconsis-tent with municipal zoning and planning objectives. A Uniform Set of Procedures. The enabling l e g i s l a t i o n provides a very broad frame-work of the procedure to be followed by the Zoning Board of Appeal. It leaves the detailed procedure to be adopted by each municipality in i t s zoning by-law. Because of ambiguities in the enabling l e g i s l a t i o n and lack of d e f i n i t i o n of standards and format, every Zoning Board of Appeal tends to follow inconsistent procedure i n i t s operation. This r e s u l t s in decisions which are not only inconsistent i n r e l a t i o n to zoning objectives and planning p r i n c i p l e s , but also v i o l a t e the rules of natural j u s t i c e and j u d i c i a l review. Implementation of Municipal Planning Pol i c y . Important tools for the implementation of a municipal planning p o l i c y are: the zoning by-law; the sub-division con-t r o l by-law; and the development control by-law. Although a l l of these are important, nevertheless t h i s thesis i s confined to a consideration of zoning by-law only. The Zoning Board 166 of Appeal i s a "safety valve" provided to grant relaxations i n cases a r i s i n g out of "undue or unnecessary hardship" caused by the s t r i c t enforcement of the zoning by-law. In t h i s p o s i t i o n the Zoning Board of Appeal plays a very c r i t i c a l r o l e , for i f i t grants legitimate relaxations with respects to zoning and planning objectives, i t helps i n the implementation of municipal planning p o l i c y by providing compatible r e l i e f . On the other hand, i f the relaxations granted by the Zoning Board of Appeal are inconsistent with municipal zoning and planning objectives, then the Zoning Board of Appeal i n fact weakens the zoning by-law by providing u n j u s t i f i e d r e l i e f to i t s v i o l a t o r s which hampers i n the implementation of munici-pal planning p o l i c y . The study analyzes the types of cases heard and types of decisions made and also reviews the attitudes of the mem-bers of the Zoning Board of Appeal. It i s observed that the members of the Zoning Board of Appeal are not appraised of the p o t e n t i a l impact of their decisions, a s i t u a t i o n which can work both ways; that i s , i t may help i n the implementation of municipal planning p o l i c y or a l t e r n a t i v e l y cause obstruc-tions by granting incompatible relaxations. Investigation of the hypothesis has provided a needed focus i n reviewing the position of the Zoning Board of Appeal i n the implementation of municipal planning poli c y . It i s 167 concluded that the hypothesis appears to be v a l i d . From the p r a c t i c a l point of view i t i s concluded that the e f f e c t i v e operation of the Zoning Board; of Appeal should be considered as a useful device for the po s i t i v e implementation of municipal planning poli c y . I l l DIRECTIONS FOR FURTHER RESEARCH The Study has been completed within the context of a sample which i s extremely li m i t e d i n siz e . With the absence of written case decisions i t was not possible to i d e n t i f y and evaluate the c r i t e r i a used for the grant of relaxations and the consistency of the decisions. It i s suggested that further investigations i n respect of the following aspects of the Zoning Board of Appeal would be he l p f u l for making the Zoning Board of Appeal a useful device for r e a l i z i n g the goals of community planning: 1. There should be more studies of attitude and perceptions of the members, of the Zoning Board of Appeal, regarding the zoning by-law and re l a t e d planning matters. The findings of such studies w i l l be he l p f u l i n understanding more c l e a r l y why members of the Board react i n p a r t i -cular manner for di f f e r e n t types of appeals. The questionnaire used i n t h i s thesis can be developed to include a set of hypothetical cases i n order to ascertain and i d e n t i f y d i f f e r e n t attitudes of diff e r e n t members. 2. Further studies of the procedure followed and c r i t e r i a used by the di f f e r e n t Zoning Boards of Appeal i n reaching decisions should be conducted. 168 This may be done by reviewing important o l d cases and interviewing the members involved i n making such decisions. The members may be asked their opinion and the basis thereof. This study can id e n t i f y the nature of decisions made under di f f e r e n t procedures following d i f f e r e n t c r i t e r i a . 3 . Further investigations into the exploration of the extent to which the members of the Zoning Board of Appeal f e e l a man should be free to use his land as he sees f i t . This can indicate some instances i n which there are unnecessary r e s t r i c -tions imposed by the zoning by-law. 4 . Further research should be conducted i n order to f i n d out i f some common procedural standards exist in the operation of the Zoning Board of Appeal on a province-wide scale. IV SUMMARY It i s hypothesized that i f the Zoning Board of Appeal follows a uniform procedure and i s supplied with a clear statement of zoning objectives and planning p r i n c i p l e s , then i t can support the implementation of municipal planning poli c y . To test the hypothesis the Study reviews the t r a d i t i o n a l and contemporary concepts of zoning and planning. With t h i s back-ground, three Zoning Boards of Appeal are selected i n the Vancouver Metropolitan Area for the Case Study. The case Study explores the reasons for inconsistencies i n the decisions of the selected Zoning Boards of Appeal. Reasons for inconsis-tencies are grouped into three categories: ambiguities i n the enabling l e g i s l a t i o n ; i r r e g u l a r i t i e s i n the operation of the 1 6 9 Zoning Boards of Appeal; and attitudes of the members of the Zoning Boards of Appeal which reveal their indifference to planning objectives. It i s observed that there i s a lack of communication between the members of the Boards and their respective planning departments. It i s also observed that there i s a lack of any instructions for the grant of relaxations. A review of contemporary experience in the operation of the Zoning Board of Appeal substantiates the Case Study observations. Certain f e a s i b l e l e g i s l a t i v e and administrative improvements are recommended. A method of implementation of these recommendations at the p r o v i n c i a l and municipal levels of government are suggested. It i s concluded that the hypothesis appears to be v a l i d , and to provide a reasonable and p r a c t i c a l solution for making the Zoning Board of Appeal a useful device for the implementation of municipal planning p o l i c y . BIBLIOGRAPHY BIBLIOGRAPHY 171 A. BOOKS • Bartholomew, Harland. Land Uses i n American C i t i e s . Cambridg Harvard University Press, 1955. Bassett, Edward M. Zoning, The Laws, Administration, and Court Decisions During the P i r s t Twenty Years. New York: Russell Sage Foundation, 1936. Bettman, A l f r e d . C i t y and Regional Planning Papers. Cambridg Harvard University Press, 1946. Beuscher, J.H. Land Use Controls: Cases and Materials. Madison, Wisconsin: The College P r i n t i n g and Typing Co., 1964. Beveridge, V/.I.B. The Art of S c i e n t i f i c Investigation. New York: Vintage Books, 196~5. Blund e l l , L i o n e l A. and George Dorby. Town and Country  Planning. London: Sweet and Maxwell Ltd., 1963. Chapin, E. Stuart. Urban Land Use Planning. Urbana: The Uni v e r s i t y of I l l i n o i s Press, 1965. Dawson, Robert M. Democratic Government i n Canada. Toronto: The Copp Clark Publishing Co., Ltd., 1957. G a l l i o n , Arthur B. and Simon Eisner. The Urban Pattern. Princeton,N.J: D. Van Nostrand Company Inc., 1963. Goode, William J . and Paul K. Hatt. Methods i n So c i a l Re-search. New York: McGraw H i l l Book Company Inc., 1952. Haar, Charles M. Land Use Planning: A Casebook on the Use, Misuse, and Re-use of Urban Land. Boston: L i t t l e , Brown and Co., 1959. Heap, Desmond. An Outline of Planning Law. London: Sweet and Maxwell Ltd., 1955. Hubbard, Theodora K. Our C i t i e s , Today and To-Morrow. Cambridge: Harvard U n i v e r s i t y Press, 1929. Kent J r . , T.J. The Urban General Plan. San Prancisco: Chandler Publishing Co., 1964. 172 Lev/is, Nelson P. The Planning of the Modern C i t y . New York: John Wiley and Sons Inc., 1922. MacDonald, Austen P. American C i t y Government and Adminis-t r a t i o n . New York C i t y : Thomas Y. Crowell Co., 1946. Milner, James B. Community Planning, A Casebook on Law and Administration. Toronto: Uni v e r s i t y of Toronto Press, 1963. Cases and Materials of the Law and Adminis t r a t ion of Community Planning. Toronto: University of Toronto Press, 1958 Pooley, Beverley J . Planning and Zoning i n the United States. Ann Arbor, Michigan: Michigan Legal Publications, 1961. Rathkopf, Charles A. The Law of Planning and Zoning. New York: Crosby Press, 1949. Rody, Martin J . and Herbert H. Smith. Zoning Primer. West Trenton, N.J: Chandler Publishing Co., I960. Rogers, Ian. The Law of Canadian Municipal- Corporations. 2 Vols. Toronto: The Carswell Co., 1959. Smith, S.A. de. J u d i c i a l Review of Administrative Action. London: Stevens and Sons Ltd., 1959. Walker, Robert A. The Planning Function i n Urban Government. Chicago: The University of Chicago Press, 1951. Yokley, E.C. Zoning Lav; and P r a c t i c e . C h a r l o t t e s v i l l e , V i r g i n i a , The Michie Company, 1953. B. PUBLICATIONS OP THE GOVERNMENT, LEARNED SOCIETIES, AND OTHER ORGANIZATIONS Babcock,. Richard P. "The Chaos of Zoning Administration: One Solution", Zoning Digest, Vol.XII, No.l, January I960. Chicago: American Society of Planning O f f i c i a l s , I960. "Zoning Administration i n I l l i n o i s " , The University of Chicago Law Review. Vol.26, No.4, 1959. "Zoning Amendments and Variations", The Northwest-ern U n i v e r s i t y Law Review. Vol.48, 1953. Blucher, Walter H. "Is Zoning Wagging the Dog", Planning 1955. Chicago: American Society of Planning O f f i c i a l s , 1955. 1 7 ? Branch J r . , M e l v i l l e . "Zoning", The Planners Journal, Vol.VII, No.2, April-June, 1941. Brewin, P .A. "The Extraordinary Remedies", The Law Society  of Upper Canada Lectures. Toronto: Richard deBoo Ltd., I960. Campbell, Robert D. and Hugh L. LeBlanc. An Information System f o r Urban Planning. Washington B.C: Urban Renewal Administration, Housing and Home Finance Agency, 1 9 6 5 . C i t y of Vancouver. Zoning and Development By-law No.3575. Vancouver: The City of Vancouver, 1956. Dakin, A.J. "New Survey Techniques and Goals of the Plan", Planning 1965. Chicago: American Society of Planning O f f i c i a l s , 1965. Delafons, John. Land Use Controls i n the United States. Cambridge: Jo i n t Centre of Urban Studies of the Massachusetts I n s t i t u t e of Technology, 1962. Driedger, E.A. The B r i t i s h North America Acts: 1867 to I960. Ottawa: The Queen's P r i n t e r , 1964. Peiss, C a r l . "Urban Redevelopment and Urban Planning", Planning 1950. Chicago: American Society of Planning O f f i c i a l s , 1950. Fonoroff, A l l e n . "Zoning: A l t e r n a t i v e s to an Overworked Tool", American I n s t i t u t e of Planners, Annual Proceedings, I960. Green, P h i l i p P. "The Power of the Zoning Board of Adjust-ment to Grant Variances from Zoning Ordinances", North  Carolina Law Review. Vol.29, 1959. Haar, Charles M. "The Master Plan: An Impermanent Consti-tut i o n " , Lav/ and Contemporary Problems, Durham, N.C: Duke Law School, 1955. Hamilton, Ca l v i n S. "Zoning Administration", Planning 1962. Chicago: American Society of Planning O f f i c i a l s , 1962. Joint Committee on Housing and Design, 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. Reflections on Zoning. Ottawa: 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, 1964. LeCraw, C.S. and W.S. Smith. Zoning Applied to Parking. Saugatuck, Connecticut: The Eno Foundation f o r Highway T r a f f i c Control, Inc., 1948. 17'4 M i l n e r , James B. "An I n t r o d u c t i o n t o Z o n i n g E n a b l i n g L e g i s l a t i o n " , C a n a d i a n B a r Review. V o l . 4 0 , N o . l , March, 1962. " P l a n n i n g Growth and Change Under the Law", PLAN. V o l . 4 , N o . l , 1959. "The Committee o f A d j u s t m e n t : Z o n i n g and Land V a l u e s " , O n t a r i o P l a n n i n g . V o l . 5 , No.8, 1958.; Norman J r , W i l l i a m s . "Annual J u d i c i a l Review: Recent D e c i -• s i o n s i n P l a n n i n g Law", A m e r i c a n I n s t i t u t e o f P l a n n e r s  J o u r n a l , V o l . X X V I I , Ho.2, May 1961. P r o v i n c e o f B r i t i s h C o l u m b i a . The M u n i c i p a l A c t , R.S.B.C. C h a p t e r 255. V i c t o r i a : Queen's P r i n t e r , 1964. The Vancouver C h a r t e r , R.S.B.C., V i c t o r i a : Queen's P r i n t e r , 1961. Reps, J o h n W. " D i s c r e t i o n a r y Powers o f the Board o f Z o n i n g A p p e a l s " , Law and Contemporary P r o b l e m s , V o l . 2 0 , No.2. S p r i n g , 1955. R o n a r t , Stephen. A S y n o p s i s o f the P l a n n i n g L e g i s l a t i o n i n Seven C o u n t r i e s . I n t e r n a t i o n a l F e d e r a t i o n f o r H o u s i n g and P l a n n i n g . Smuts, Ruber E. " I s Z o n i n g Wagging t h e Dog", P l a n n i n g 1955. C h i c a g o : A m e r i c a n S o c i e t y o f P l a n n i n g O f f i c i a l s , 1955. Sohn, Prank. " C l i n i c on Z o n i n g " , P l a n n i n g 1955. C h i c a g o : A m e r i c a n S o c i e t y o f P l a n n i n g O f f i c i a l s , 1953. W o l f a g n e r , L o u i s A. Your Community and Township Z o n i n g . E a s t L a n s i n g , M i c h i g a n : M i c h i g a n S t a t e C o l l e g e , 1945. C. PERIODICALS B u r n s , P e t e r G. " S u b s t a n d a r d H o u s i n g and Enforcement o f a Minimum S t a n d a r d " , H a b i t a t . V o l . V I I , No.4, J u l y - A u g u s t , 1964. C l a r k , R o b e r t M. " Z o n i n g m Canada", O n t a r i o : P l a n n i n g . V o l . 5 , N o . l , J a n u a r y 1958. L e v i n , E a r l A. " Z o n i n g i n Canada", The Community P l a n n i n g  Review. V o l . V I I , No.2, 1958. 17 5 O n t a r i o Department o f P l a n n i n g and Development, " P r i n c i p l e s t o A s s i s t Committees o f A d j u s t m e n t " , O n t a r i o P l a n n i n g , V o l . 3 , No.6, J u l y 1956. D. ESSAYS AND ARTICLES IN COLLECTIONS Friedmann, J and W. A l o n s o ( e d . ) . R e g i o n a l Development and  P l a n n i n g - A Reader. Cambridge: The M.I.T. P r e s s , 1965 H i r s c h , W.F. ( e d . ) . Urban Land and Form. New Y o r k : H o l t , R i n e h a r t and W i n s t o n I n c . , 1963. Woodbury, Coleman ( e d . ) . The F u t u r e o f C i t i e s and Urban  Redevelopment. C h i c a g o : The U n i v e r s i t y o f C h i c a g o P r e s s , 1961. E. UNPUBLISHED MATERIAL B r o d e r i k , J u l i a J . "An A n a l y s i s o f P l a n n i n g S t a n d a r d s as t h e y Appear i n M a s s a c h u s e t t s A d j u d i c a t i o n s " , Unpub-l i s h e d MCP T h e s i s , The M.I.T., B o s t o n , 1962. Bureau o f Governmental R e s e a r c h and S e r v i c e S c h o o l o f P u b l i c A d m i n i s t r a t i o n . S h o r t Course f o r County Z o n i n g  A d m i n i s t r a t i o n . T a l l a h a s s e e : F l o r i d a S t a t e U n i v e r s i t y , 1959. C o r p o r a t i o n o f t h e C i t y o f N o r t h Vancouver. V a r i o u s f i l e s and r e c o r d s o f the B u i l d i n g Department. C o r p o r a t i o n o f t h e C i t y o f Vancouver. V a r i o u s f i l e s , r e -c o r d s and maps o f the P l a n n i n g Department,and t h e Z o n i n g Board o f A p p e a l . C o r p o r a t i o n o f t h e Township .of Richmond. V a r i o u s f i l e s and r e c o r d s o f t h e M u n i c i p a l S o l i c i t o r ' s Department and t h e P l a n n i n g Department. Huberman, D a v i d S.M. I n t r o d u c t i o n t o L e g a l A s p e c t s o f  C o n s t r u c t i o n I n d u s t r y . V a n couver, 1964. APPENDIX I OBJECTIVES OF THE CITY-WIDE USE PLAN: AN EXTRACT FROM THE MASTER PLAN FOR SAN FRANCISCO Source: Delafons, John. Land Use Contro  in the United States. Cambridge Joint Center for Urban Studies , 177 APPENDIX I E x t r a c t from the Land Use S e c t i o n o f the M a s t e r P l a n f o r San F r a n c i s c o A. O b j e c t i v e s o f the C i t y - W i d e Use P l a n The C i t y - W i d e Land Use P l a n o f San F r a n c i s c o i s d e s i g n e d as a g e n e r a l g u i d e to the a t t a i n m e n t o f the f o l l o w i n g o b j e c t i v e s : 1 . Improvement o f the C i t y as a p l a c e f o r l i v i n g , by a i d i n g i n making i t more h e a l t h f u l , s a f e , p l e a s a n t , and s a t i s f y i n g , w i t h h o u s i n g r e p r e -s e n t i n g good s t a n d a r d s f o r a l l f a m i l i e s and by p r o v i d i n g adequate open spaces and a p p r o p r i a t e community f a c i l i t i e s . 2. Improvement o f t h e c i t y as a p l a c e f o r commerce and i n d u s t r y by male i n g i t more e f f i c i e n t , o r d e r l y , and s a t i s f a c t o r y f o r the p r o d u c t i o n , exchange and d i s t r i b u t i o n of goods and s e r v i c e s , w i t h adequate space f o r each type o f economic a c t i v i t y and improved f a c i l i t i e s f o r t h e l o a d i n g and movement o f goods. 3. O r g a n i z a t i o n o f two p r i n c i p a l f u n c t i o n a l p a r t s o f the c i t y - the w o r k i n g a r e a s and the community a r e a s - so t h a t each may be c l e a r l y d i s t i n g u i s h e d 178 from but complementary t o the o t h e r , and so t h a t the economic, s o c i a l and c u l t u r a l development o f t h e c i t y may be f u r t h e r e d . 4 . P r o t e c t i o n , p r e s e r v a t i o n , and enhancement o f the economic, s o c i a l , c u l t u r a l and e s t h e t i c v a l u e s t h a t e s t a b l i s h the d e s i r a b l e q u a l i t y and unique c h a r a c t e r o f t h e c i t y . 5 . C o o r d i n a t i o n o f t h e v a r i e d p a t t e r n o f l a n d use w i t h p u b l i c and s e m i - p u b l i c s e r v i c e f a c i l i t i e s r e q u i r e d f o r e f f i c i e n t f u n c t i o n i n g o f the c i t y , and f o r the convenience and w e l l - b e i n g o f i t s r e s i d e n t s , w o r k e r s , and v i s i t o r s . 6. C o o r d i n a t i o n o f t h e v a r i e d p a t t e r n o f l a n d use w i t h c i r c u l a t i o n r o u t e s and f a c i l i t i e s r e q u i r e d f o r t h e e f f i c i e n t movement o f p e o p l e and goods w i t h i n the c i t y , and t o and from the c i t y . 7. C o o r d i n a t i o n o f the growth and development o f the c i t y w i t h the growth and development o f a d j o i n i n g c i t i e s and c o u n t i e s and o f t h e San F r a n c i s c o Bay Region. O APPENDIX II SUGGESTED PRINCIPLES TO ASSIST COMMITTEES OF ADJUSTMENT IN THE PROVINCE OF ONTARIO Source: Ontario Planning, Vol. No.6, July, 1956. 180 ' . APPENDIX I I SUGGESTED PRINCIPLES TO ASSIST, COMMITTEES OP ADJUSTMENT IN THE PROVINCE OP ONTARIO (Source: Ontario: P l a n n i n g , V o l . 3 , No.6, J u l y 1956) P r i n c i p l e s t o a s s i s t Committees of Adjustment During 1955, 1242 committee of adjustment d e c i s i o n s were submitted to the "Community Planning Branch f o r review, about 400 more than i n the previous year. In the course o f reviewing these d e c i s i o n s , o f f i c i a l s of the Branch have found that confusion or misunderstanding appears t o e x i s t concerning the nature of the powers given to committees of adjustment and the proper use of these powers. A l s o , committees of adjustment appear to be experiencing considerable d i f f i c u l t i e s i n a n a l y s i n g a p p l i c a t i o n s . The f o l l o w i n g comments a r e not intended as r i g i d r u l e s f o r committee of adjustment a c t i o n , but i t i s hoped that they may help to c l a r i f y the r o l e of the committee o f adjustment i n the e f f e c t i v e implementation of a sound planning programme. 1. As p r e v i o u s l y s t a t e d , the b a s i c purpose of a committee of adjustment i s to make minor adjustments i n the s t r i c t a p p l i c a t i o n of the zoning by-law. This c a l l s f o r a thorough knowledge of the o f f i c i a l p l a n and zoning by-law, but above a l l an understanding of t h e i n t e n t and purpose of these documents, as the committee can only grant a variance when the i n t e n t and purpose i s maintained. The r e s p o n s i b i l i t y i s p l a c e d upon the committee to judge the extent o f the v a r i a n c e ' s o t h a t the end r e s u l t w i l l s t i l l be w i t h i n the i n t e n t and purpose of the o f f i c i a l p l a n and zoning by-law. 2. The committee i n c a r r y i n g out i t s f u n c t i o n must a c c e p t t h e o f f i c i a l p l a n and z o n i n g by-law as adopted by C o u n c i l . I t cannot use i t s powers t o zone, o r t o p e r m i t u s e s t h a t a r e not p e r m i t t e d , o r t o c o r r e c t what i t may c o n s i d e r and what may be d e f e c t i v e p l a n n i n g o r z o n i n g , t h i s b e i n g a m a t t e r f o r c o u n c i l as t h e e l e c t e d body r e s p o n s i b l e f o r r e g u l a t i n g l a n d use by z o n i n g by-law. 3. N o r m a l l y , o n l y an i n d i v i d u a l p r o p e r t y s h o u l d be c o n s i d e r e d . • Groups o f p r o p e r t i e s a r e a m a t t e r f o r an amendment t o t h e z o n i n g b y-law. 4. The r e s p o n s i b i l i t y f o r showing n e c e s s i t y f o r the g r a n t i n g o f a v a r i a n c e i s upon t h e a p p l i c a n t , and i n e x p l a i n i n g t h a t c o m p l i a n c e w i t h t h e by-law i s u n r e a s o n a b l e o r i m p o s s i b l e t h e a p p l i c a n t s h o u l d p r o v i d e r e a s o n s t o t h e s t a i s f a c t i o n o f t h e committee. 5. The committee i n a n a l y s i n g a case s h o u l d s a t i s f y i t s e l f : -(a) t h a t t h e r e a r e p r a c t i c a l d i f f i c u l t i e s w h i c h make t h e c a r r y i n g out o f t h e s t r i c t l e t t e r o f t h e by-law u n r e a s o n a b l e o r i m p o s s i b l e , (b) t h a t t h e c i r c u m s t a n c e s w h i c h c r e a t e t h e p r a c t i c a l d i f f i c u l t i e s a r e p e c u l i a r t o t h e p r o p e r t y o n l y and not common t o t h e a r e a , (c) t h a t by c o m p l y i n g w i t h t h e by-law, t h e a p p l i c a n t can make no r e a s o n a b l e u se o f th e p r o p e r t y , ,(d) t h a t t h e n e c e s s i t y f o r t h e v a r i a n c e i s n o t one o f c o n v e n i e n c e o r monetary g a i n , where c o m p l i a n c e w i t h t h e by-law i s p o s s i b l e and r e a s o n a b l e , (e) t h a t t h e n e c e s s i t y f o r t h e v a r i a n c e r e s u l t s o n l y from t h e a p p l i c a t i o n . o f t h e by-law t o t h e p r o p e r t y and not from any o t h e r f a c t o r , ( f ) t h a t the a p p l i c a n t has n o t h i m s e l f c r e a t e d t h e c i r c u m s t a n c e s t h a t p r e v e n t him from c o m p l y i n g w i t h t h e s t r i c t t e r m s o f t h e by-law, (g) t h a t t h e a p p l i c a t i o n has s u f f i c i e n t m e r i t s o f i t s own not t o c r e a t e a p r e c e d e n t f o r s i m i l a r r e q u e s t s f rom o t h e r s . 182 6 . I n c o n s i d e r i n g cases o f non-conforming u s e s under s e c t i o n 1$(2) (a) o f The P l a n n i n g A c t , 1 9 5 5 5 t h e committee o f a d j u s t m e n t : -(a) s h o u l d b e a r i n mind t h e i n t e n t o f t h e by - l a w f o r t h e a r e a , (b) s h o u l d a s c e r t a i n t h a t i t i s a l a w f u l non-c o n f o r m i n g use and t h a t such use has c o n t i n u e d u n t i l t h e d a t e o f a p p l i c a t i o n , (c ) s h o u l d n o t g r a n t an e x t e n s i o n o r enlargement o'f a b u i l d i n g used f o r a non-conforming use ex c e p t t o p r e v e n t u n r e a s o n a b l e h a r d s h i p and where t h e d e p r e c i a t i n g a f f e c t on t h e a r e a i s no g r e a t e r t h a n t h e o r i g i n a l b u i l d i n g , (d) ~ s h o u l d n ot g r a n t a change o f a no n c o n f o r m i n g u s e , u n l e s s t h e new use i s e i t h e r s i m i l a r t o t h e o l d one o r w i l l be more c o m p a t i b l e w i t h t h e p e r m i t t e d u s e s f o r t h e a r e a , (e) s h o u l d n ot p e r m i t t h e r e j u v e n a t i o n o f a n o n - c o n f o r i i i i n g use by t h e d e m o l i t i o n o f an o l d b u i l d i n g and replacement by a new one f o r e i t h e r t h e e x i s t i n g use o r a new non - c o n f o r m i n g u s e . ( f ) s h o u l d b e a r i n mind t h a t any e x t e n s i o n or enlargement o f a b u i l d i n g used f o r a non-c o n f o r m i n g use may extend t h e l i f e o f t h a t use, whereas i t i s t h e hope t h a t non-conforming uses w i l l d i s a p p e a r t o make way f o r c o n f o r m i n g u s e s . 7 t t Under S e c t i o n l 3 ( 2 ) ( b ) o f The P l a n n i n g A c t , 1 9 5 5 , the committee o f a d j u s t m e n t should' not g r a n t any e x t e n s i o n o f l a n d , b u i l d i n g o r s t r u c t u r e i n t o an a d j o i n i n g zone e x c e p t t o enable t h e owner o f t h a t l a n d , b u i l d i n g o r s t r u c t u r e t o u t i l i z e h i s p r o p e r t y r e a s o n a b l y , and t h e n o n l y p r o v i d e d t h a t the e x t e n s i o n i s i n k e e p i n g w i t h t h e i n t e n t and purpose o f t h e o f f i c i a l p l a n and z o n i n g by-lav; and t h a t t h e a r e a i n t o w hich t h e e x t e n s i o n i s t o be made a c t u a l l y a b u t s t h e p r o p e r t y t h a t i s t o be extended. I n e f f e c t , t h e p urpose o f t h e committee o f adjustment i n t h i s i n s t a n c e i s t o p e r m i t m i n o r a d j u s t m e n t s i n t h e zone b o u n d a r i e s where t h e e x i s t i n g zone boundary p r e v e n t s t h e r e a s o n a b l e and l o g i c a l development o f t h e l a n d , b u i l d i n g o r s t r u c t u r e t h a t i s r e q u i r e d t o be e x t e n d e d . i : 183 #. A committee of adjustment should not use i t s powers to l e g a l i z e contraventions of the by-law r e s u l t i n g from gross carelessness or i n d i f f e r e n c e on the p a r t of the a p p l i c a n t or from poor m u n i c i p a l a d m i n i s t r a t i o n . 9 . A committee of adjustment may impose c o n d i t i o n s when deemed a d v i s a b l e , and i t i s recommended t h a t t h i s power be used. In many cases the a c t u a l v a r i a n c e requested can be a l t e r e d f o r more con-f o r m i t y , as b e t t e r s o l u t i o n s than those requested are p o s s i b l e i n many i n s t a n c e s , and i n cases of non-conforming uses c o n d i t i o n s imposed may help to l e s s e n the d e p r e c i a t i n g a f f e c t s on the area. The committee of adjustment should bear i n mind t h a t i t i s not necessary to grant the a p p l i c a t i o n as r e -quested, f o r i n some cases the a p p l i c a n t ' s request i s g r e a t e r than i s a c t u a l l y needed. 10. I t i s considered t h a t the words "use" and "purpose" i n s e c t i o n IS of The Planning A c t , 1955, are intended to mean the a c t u a l use or purpose i n i t s p r e c i s e terms, r a t h e r than r e f e r r i n g t o the general terra commonly given to a group of s i m i l a r uses. For i n s t a n c e , a grocery s t o r e i s the use and not the general term "commercial", and again a s t e e l foundry i s the use and not the general terms " f a c t o r y " or " i n d u s t r i a l " . 11* I n s e c t i o n 18 of The.Planning Ant, 1955, the word " l a n d " i s used together w i t h the words " b u i l d i n g " and " s t r u c t u r e " , and as such the refe r e n c e t o " l a n d " i s considered to apply only to land on which there are no b u i l d i n g s or s t r u c t u r e s , and s i m i l a r l y the use .of land i s regarded as meaning a use where no b u i l d i n g s or s t r u c t u r e s are r e q u i r e d , ( f o r i n s t a n c e . a used-car l o t ) , and not f o r the purpose of e r e c t i n g a b u i l d i n g thereon. The above meaning would appear to apply p a r t i c u l a r l y i n cases of non-conforming uses, i n t h a t the r i g h t s of a non-conforming use do not appear to be passed on t o the la n d should the b u i l d i n g be removed. 12. The committee o f adjustment cannot p r o p e r l y consider the a p p l i c a t i o n on the b a s i s of the i n f o r m a t i o n sub-m i t t e d i n the w r i t t e n a p p l i c a t i o n alone, and t h e r e f o r e i t i s necessary f o r the a p p l i c a n t or h i s r e p r e s e n t a t i v e to a t t e n d the hearing to provide f u r t h e r i n f o r m a t i o n through answers to p o s s i b l e questions e i t h e r from the committee of adjustment or from any other i n t e r e s t e d p a r t y . When the a p p l i c a n t or h i s r e p r e s e n t a t i v e f a i l s to attend the he a r i n g , the committee of adjustment should e i t h e r r e f u s e the a p p l i c a t i o n or gi v e no d e c i s i o n 1 8 4 u n t i l t h e a p p l i c a n t o r h i s r e p r e s e n t a t i v e does a t t e n d a h e a r i n g and p r o v i d e such a d d i t i o n a l i n f o r m a t i o n as may be r e q u i r e d . 13..An a p p l i c a t i o n f o r a v a r i a n c e i s f o r a p r i v i l e g e , n o t a , matter o f r i g h t . I f t h e r e i s any q u e s t i o n t h a t t h e g r a n t i n g o f a p r i v i l e g e m ight p r e j u d i c e t h e b e n e f i t s o f t h e by-law t o o t h e r s , t h e p r i v i l e g e s h o u l d n o t be g r a n t e d . To many, t h e powers o f a committee o f a d j u s t m e n t may appear t o be wide, and as a r e s u l t d i f f e r e n t i n t e r p r e t a t i o n s of the a u t h o r i t y g r a n t e d t o t h i s body may be g i v e n . However i n t h i s r e g a r d i t i s emphasized t h a t a committee o f a d j u s t m e n t , a l t h o u g h n o t e l e c t e d by t h e p e o p l e , i s g i v e n d i s c r e t i o n a r y powers. I t would seem i m p e r a t i v e t h a t t h e s e powers be used and i n t e r p r e t e d w i t h c o n s i d e r a b l e c a u t i o n i f t h e committee o f adjustment i s t o s e r v e i t s p r o p e r p u rpose i n p r o m o t i n g t h e i n t e r e s t s o f t h e community as a whole and i f i t i s t o g a i n t h e c o n f i d e n c e o f a l l concerned. An abuse o f t h e s e powers may s e r i o u s l y r e d u c e t h e e f f e c t i v e n e s s o f t h e z o n i n g by-law and cause c o n f l i c t between t h e committee o f a d j u s t m e n t and t h e m u n i c i p a l c o u n c i l t h r o u g h t h e f o r m e r t r y i n g t o u s u r p some o f the powers o f t h e l a t t e r . A f i n a l word o f w a r n i n g : no c o u n c i l o r p l a n n i n g b o a r d when p r e p a r i n g a z o n i n g by-law s h o u l d i g n o r e t h e p r i n c i p l e s o f good z o n i n g o r make i n s u f f i c i e n t s t u d i e s and t h e n expect t h e mat t e r t o be s o l v e d by t h e appointment o f a committee o f adjustment. T h i s i s n o t t i i e f u n c t i o n o f a committee o f adjustment. li a n y committees o f adjustment a r e f a c e d w i t h poor zoning b y - l a w s , w h i c h makes t h e i r t a c k more d i f f i c u l t , and c o u n c i l s s h o u l d n o t s h i r k t h e i r d u t y i n t h i s r e g a r d . As t h e t i t l e of t h i s a r t i c l e s u g g e s t s , a committee o f adjustment i s an i n d i s p e n s a b l e t o o l p e r f o r m ng an e s s e n t i a l t a s k i n t h e i m p l e m e n t a t i o n o f p l a n n i n g t h r o u g h a z o n i n g b y-law. I t i s an agency i n t e n d e d t o h e l p z o n i n g work more e f f e c t i v e l y , and to p r o v i d e j u s t i c e i n removing some o f t h e s m a l l i n e q u i t i e s and f r u s t r a t i o n s t h a t can a r i s e i n t h e z o n i n g p r o c e s s , t h u s making t h i s i m p o r t a n t i m p l e m e n t i n g p a r t o f t h e p l a n n i n g p r o c e s s more a c c e p t a b l e . APPENDIX I I I SPECIMEN OF: 1. COVERING LETTER AND SURVEY QUESTIONNAIRE USED IN THE CASE STUDY. 2. THE PRESCRIBED STANDARDS FOR THE GRANT OF VARIATIONS BY THE ZONING BOARD OF APPEALS IN COOK COUNTY, ILLINOIS. 3 . SPECIMEN OF VARIATIONS AUTHORIZED IN THE ORDINANCE REGULATIONS OF COOK COUNTY, ILLINOIS. 186 COMMUNITY & REGIONAL PLANNING, UNIVERSITY OP BRITISH COLUMBIA, Vancouver-8, B.C., J a n u a r y , 1966. Dear Mr. I n p a r t i a l f u l f i l m e n t o f the r e q u i r e m e n t s f o r t h e Degree o f M a s t e r o f S c i e n c e (Community & ' R e g i o n a l P l a n n i n g ) , I am w r i t i n g a t h e s i s t i t l e d " Z o n i n g Boards o f A p p e a l : A  Study o f - t h e i r R o l e i n the I m p l e m e n t a t i o n o f M u n i c i p a l P l a n n i n g P o l i c i e s . " The h y p o t h e s i s t o be t e s t e d i n t h i s s t u d y i s t h a t " a p o s i t i v e s t a t e m e n t ox z o n i n g o b j e c t i v e s and p l a n n i n g p r i n c i p l e s t o g e t h e r w i t h a u n i f o r m s e t o f proce-^ -d u r e s to be f o l l o w e d by t h e Z o n i n g Board o f A p p e a l i s n e c e -s s a r y f o r e f f e c t i v e i m p l e m e n t a t i o n o f m u n i c i p a l p l a n n i n g p o l i c y " . Three Z o n i n g Boards o f A p p e a l , i n the Vancouver M e t r o -p o l i t a n A r e a , have been s e l e c t e d f o r t h i s case s t u d y and you a r e one o f the members o f t h e s e s e l e c t e d B o a r d s . Due t o t h e v e r y l i m i t e d time a v a i l a b l e , i t may not be • p o s s i b l e t o have a p e r s o n a l i n t e r v i e w , so a q u e s t i o n n a i r e has been p r e p a r e d t o o b t a i n i n f o r m a t i o n w h i c h i s e x p e c t e d t o be o f v a l u e f o r t h i s s t u d y . I t would be a p p r e c i a t e d i f you would complete t h e a t t a c h e d q u e s t i o n n a i r e . The r e s u l t s o f t h e completed q u e s t i o n n a i r e s w i l l be a n a l y s e d w i t h o u t i d e n t i f y i n g the i n d i v i d u a l r e s p o n d e n t s . Y o u r a s s i s t a n c e i n p r o v i d i n g i n f o r m a t i o n f o r t h i s a c a -demic t h e s i s p r o j e c t w i l l be much a p p r e c i a t e d . A s e l f -a d d r e s s e d stamped e n v e l o p e i s e n c l o s e d -for y o u r c o n v e n i e n c e . T h a n k i n g you, I am Your v e r y t r u l y , J.S. DHILLOK, B.Sc.,LL.B Graduate S t u d e n t , Community & R e g i o n a l P l a n n i n g . 1 8 7 MASTER'S THESIS PROJECT  ZONING BOARDS OP APPEAL: A STUDY OP THEIR ROLE  IN THE IMPLEMENTATION OP MUNICIPAL PLANNING POLICIES QUESTIONNAIRE 1« Has t h e M u n i c i p a l C o u n c i l p r o v i d e d you w i t h adequate i n s t r u c t i o n s r e g a r d i n g : (a) t h e f u n c t i o n o f t h e Z o n i n g Board o f Appeal(ZBA).? Yes_No. (b) t h e p r o c e d u r e t o be f o l l o w e d by t h e ZBA? Yes No ( c ) i n t e r p r e t a t i o n "Of the Z o n i n g by-law, s t a t u t e s e t c . ? Yes No Comment: ; 2 0 Has t h e M u n i c i p a l C o u n c i l p r o v i d e d you w i t h : (a) an e x p l i c i t s t a t e m e n t o f i t s z o n i n g o b j e c t i v e s ? Yes No, (b) an e x p l i c i t s t a t e m e n t o f i t s p l a n n i n g g o a l s ? Yes No Comment: 3 . Does the M u n i c i p a l C o u n c i l p r o v i d e you w i t h p l a n n i n g and z o n i n g r e p o r t s i n o r d e r t o keep you i n - t o u c h w i t h c u r r e n t developments i n m u n i c i p a l p o l i c y changes? Yes No I f t h i s i s n o t s o , how do you keep y o u r s e l f i n to u c h w i t h t h e s e changes? Comment: 4 . (a) I s t h e r e a l o n g range m u n i c i p a l development p o l i c y ? Yes No I f t h e r e i s , has t h e C o u n c i l i n f o r m e d you o f d e t a i l s o f t h i s p o l i c y ? Yes No (b) Do you v e r i f y t h a t the r e l a x a t i o n s sought i n the a p p e a l w i l l n o t c o n f l i c t w i t h t h e l o n g range m u n i c i p a l p l a n -n i n g p o l i c y ? Yes No :stion 4(Cont'd) 188 (c) Do you f e e l t h a t the d e c i s i o n s of the ZBA are c o n s i s -tent w i t h the mu n i c i p a l planning p o l i c y ? Yes No Comment: (a) Are the zoning maps and by-laws prominently, d i s p l a y e d at the time of ZBA hearings? Yes No (b) Are the mu n i c i p a l p l a n n i n g maps prominently d i s p l a y e d at the time of ZBA hearings? Yes No Comment: "Unnecessary hardship" has not been p r e c i s e l y defined but the f o l l o w i n g i s a condensation from important court d e c i -s i o n s : The a p p l i c a t i o n of the unnecessary hardship d o c t r i n e i s not governed s o l e l y by the s i z e of the area or p a r t i c u -l a r piece of property upon which the unnecessary hard-ship i s imposed. No s i n l g e f a c t o r determines what cons- -t i t u t e s unnecessary hardship, but a l l r e l e v a n t f a c t o r s , when taken together, must i n d i c a t e that the s p e c i a l c o n d i t i o n s are such that the property ai'fected cannot reasonably be put to a conforming use because of the l i m i t a t i o n imposed upon i t by reason of the c l a s s i f i c a -t i o n i n which i t i s placed i n terms of the ordinance (by-lav/) 1. (a) Do you agree w i t h t h i s d e f i n i t i o n ? Yes No I f not, what changes would you suggest? Comment: < In reaching a d e c i s i o n on a zoning appeal what f a c t o r s do you consider most s i g n i f i c a n t ? (a) Zoning Standards P l a n n i n g O b j e c t i v e s as r e f l e c t e d i n Long Range P l a n n i n g P o l i c i e s I n t e r p r e t a t i o n of Law (b) P u b l i c I n t e r e s t A p p e l l a n t ' s Hardship Others Comment: 'City of East Chicago v S i n c l a i r R e f i n i n g Co.,lllNE.2d.459j B r a c k e t t v Board of Appeal B u i l d i n g Department,1942,311 Mass.52,39 EE 2d.956; S t . Onge v C i t y of Concord,1949,95 NH 306,63A.2d,221,223. 189 8. Some o r d i n a n c e s / b y - l a w s p r o v i d e the ZBA w i t h a s e t o f i n s -t r u c t i o n s f o r v a r i a t i o n s and a l i s t o f a u t h o r i z e d v a r i a -t i o n s ( example i n A p p e n d i x ). Has your Board been p r o v i -ded w i t h s i m i l a r i n s t r u c t i o n s ? Yes l\To . I f n o t , do you t h i n k p r o v i s i o n o f such i n f o r m a t i o n would be u s e f u l t o the Board i n d e a l i n g w i t h v a r i a t i o n s / r e l a x a t i o n s from r e g u l a -t i o n s c o n t a i n e d i n the z o n i n g by-law? Yes No Comment: 9. Do you t h i n k t h a t p r o v i s i o n o f r e g u l a t i o n s t o ensure u n i -f o r m p r o c e d u r e f o r z o n i n g a d m i n i s t r a t i o n , under the M u n i -c i p a l A c t / V a n c o u v e r C h a r t e r , supplemented by a p o s i t i v e s t a t e m e n t o f z o n i n g o b j e c t i v e s and p l a n n i n g p r i n c i p l e s would e n a b l e the ZBA t o make b e t t e r and c o n s i s t e n t d e c i -s i o n s ? Yes No Comment: 10. Does the ZBA i n v e s t i g a t e t h e p h y s i c a l c o n d i t i o n s a c h i e v e d as a r e s u l t o f t h e r e l a x a t i o n s g r a n t e d , t o o b s e r v e : (a) a c t u a l i n f l u e n c e on m u n i c i p a l p l a n n i n g p o l i c i e s ? Y e s _ N o _ (b) e f f e c t o f r e l a x a t i o n on s u r r o u n d i n g a r e a ? Yes No Comment: 11. (a) A r e f o r m a l p e r i o d i c m e e t i n g s a r r a n g e d between the ZBA and the m u n i c i p a l i t y ' s t e c h n i c a l p e r s o n n e l ? Yes No Comment: (b) A r e f o r m a l p e r i o d i c m e e t i n g s a r r a n g e d betv/een the ZBA and t h e M u n i c i p a l S o l i c i t o r ? Yes No Comment: (c ) What would you recommend t o improve communication between the ZBA and t h e T e c h n i c a l P r e s o n n e l and the C o u n s e l and t h e M u n i c i p a l i t y ? Comment: 190 12. Do you t h i n k an o c c a s i o n a l seminar on the f u n c t i o n i n g o f the ZBA, i n the P r o v i n c e o f B r i t i s h -Columbia, would be h e l p f u l f o r the members o f the ZBA t o u n d e r s t a n d t h e i r f u n c t i o n s and l i m i t s more f u l l y and t o recommend im p r o v e -ments, i f any? Yes No Comment: 13. ADDITIONAL COMMENTS: A P P E N D I X . I l l PRESCRIBED STANDARDS PGR GRANT OP VARIATIONS BY THE ZONING BOARD OP APPEALS IN COOK COUNTY, I L L I N O I S . c. Standards for Variations The Zoning Board of Appeals shall not vary the regulations of this ordinance, as authorized in subsection a. hereof, un-less it shall make findings based upon the evidence pre-sented to it in each specific case that: (1) because of the particular physical surroundings, shape, or topographical conditions of the specific property in-volved, a particular hardship to the owner would result, as distinguished from a mere inconvenience, if the strict letter of the regulations were carried out; (2) the conditions upon which the petition for a variation is based are unique to the property for which the vari-ance is sought and are not applicable, generally, to other property within the same zoning classification; (3) the purpose of the variation is not based exclusively upon a desire to make more money out of the property; (4) the alleged difficulty or hardship is caused by the ordi-nance and has not been created by any person presently having an interest in the property; (5) the granting of the variation will not be detrimental to the public welfare or injurious to other property 'or improvements in the neighborhood in which the proper-ty is located; and (6) the proposed variation will not impair an adequate sup-ply of light and air to adjacent property, or substantially increase the congestion in the public streets, or increase the danger of fire, or endanger the public safety, or sub-stantially diminish or impair property values within the neighborhood. The Zoning Board of Appeals may impose such conditions and restrictions upon the premises benefited by a variation as may be necessary to comply with the standards estab-. lished in this subsection c. to reduce or minimize the effect of such variation upon other property in the neighborhood, and to better carry out the general intent of this ordinance. S o u r c e : Proposed Comprehensive Amendment to the Cook County Z o n i n g O r d i n a n c e , Cook County. I l l i n o i s (Cook, County, I l l i n o i s : O f f i c e o f the Z o n i n g Committee, 1959.),p.30A. APPENDIX. I l l VARIATIONS AUTHORIZED IN THE ORDINANCE REGULATIONS OE COOK COUNTY, ILLINOIS d. Authorized Variations V a r i a t i o n s f rom the regulations on this comprehensive amendment shal l be granted by the Z o n i n g B o a r d of A p -peals only i n accordance w i t h the standards established i n subsection c. hereof, and may be granted, only i n the f o l -l o w i n g instances and i n no others: (1) T o permit any y a r d or setback less than the y a r d or set-back required by the applicable regulations (2) T o permit the use of a lot or lots for a use otherwise prohibi ted solely because of the insufficient area or w i d t h of the lot or lots but i n no event shal l the respec-tive area and w i d t h of the lot or lots be less than ninety per cent (90%) of the r e q u i r e d area and w i d t h (3) T o permit the same off-street p a r k i n g faci l i ty to quali fy as required facilities for two (2) or more uses, provided the substantial use of such faci l i ty by each user does not take place at approximate ly the same hours of the same days of the week (4) T<) reduce the applicable off-street p a r k i n g or loading facil it ies required by not more than one p a r k i n g space or loading space or twenty per cent (20%) of the a p -pl icable regulations", whichever n u m b e r is greater (5) T o increase by not more than twenty-f ive per cent (25%) the m a x i m u m distance that required p a r k i n g spaces are permitted to be located f r o m the use served (6) T o increase by not more than twenty per cent (20%) the gross area of any sign (7) To increase by not more than ten per cent (10'.',) the m a x i m u m gross floor area of any use so l imited by the applicable regulations T h e c o n c u r r i n g vote of four (4) members of the Zoning B o a r d of Appeals shal l be necessary to grant a variation. N o order of the Zoning B o a r d of Appeals granting a varia-t ion shal l be v a l i d for a per iod longer than six (6) months f r o m the date of such order unless a b u i l d i n g permit is ob-tained w i t h i n such period and the erection or alterations of a b u i l d i n g is started or the use is commenced w i t h i n such period* Source: Proposed Comprehensive Amendment to the Cook County Zoning Ordinance, Cook County, I l l i n o i s (Cook Countyi I l l i n o i s : O f f i c e of the Zoning Committee, 1959.),p.30A. APPENDIX IV SPECIMEN OF "NOTICE OF APPEAL" Source: The Zoning Board of Appeal, Vancouver, B. PI 1 0 - M L H - 64 T o t h e S e c r e t a r y , Z o n i n g B o a r d o f A p p e a l , C i t y H a l l , V a n c o u v e r , B . C . Original to be returned to Appellant C I T Y O F V A N C O U V E R VANCOUVER CHARTER N O T I C E O F A P P E A L 1 9 4 DISTRICT ZONE: SITE SIZE: Charter (See Overleaf) , p 'Section 573 (1) (a), 'Section 573 (1) (b), 'Section 573 (1) (c), I. rursuanT TO. . S e c t i o n 5 7 3 ( 1 ) ( d ) ( *Section 573 (1) (e) of The Vancouver C 'Delete which is not applicable. I/We hereby enter an Appeal relative.to the following Section(s) of the Zoning and Development By-law of the City of Vancouver: ( S t a t e S e c t i o n ( s ) , S u b - S e c t i o n s ( s ) a n d C l a u s e ( s ) o f t h e Z o n i n g a n d D e v e l o p m e n t B y - l a w w h i c h i s / a r e t h e s u b j e c t o f t h i s A p p e a l . ) 2. Statement of the points upon which this appeal is based: 3. Attached hereto and made part of this Appeal are the following documents and Sketch Plans: 4. This appeal relates to: (a) Application for Development Permit No Dated 19. (b) Location Lot Sub-division Block D.L. (c) Type of Development r  5. I/We hereby declare that all the above statements and the statements as contained in all of the exhibits transmitted herewith are to the best of my/our belief true and correct in all respects. Signature of Applicant(s) Date Appeal Filed 196 Address , Tel. No NOTE: Notice of Appeal must be filed within 15 days of the granting or refusal of a Development Permit or within 15 days of a decision of an official charged with the enforcement of a zoning by-law. > 6. This Appeal was given a hearing by the Zoning Board of Appeal on 196 and was fDelete as required ^ f ALLOW ED fALLOWED subject to the fDISALLOWED following conditions: When an appeal is granted, a Development Permit MUST BE OBTAINED by the appellant. If the appeal is granted subject to conditions, they must be complied with before the Development Permit will be issued. The decision of the Board to grant an appeal becomes void unless the Development Permit has been obtained within days from the date hereof. APPEAL No. Signed:. Secretary, Zoning Board of Appeal ZONING AND DEVELOPMENT BY-LAW BOARD OF APPEAL PROCEDURE RIGHT OF APPEAL: SECTION 573, SUBSECTION 1, CLAUSES (a), (b), (c), (d) AND (e) OF THE VANCOUVER CHARTER Board shall hear and determine appeals: By any person aggrieved by a decision on a question of zoning by any official charged with the enforcement of a zoning by-law; By any person who alleges that the enforcement of a zoning by-law with regard to siting, size, shape or design of a build-ing would cause him undue or unnecessary hardship arising out of peculiarities in the site or special circumstances con-nected with the development. In any such case the Board may, to the extent necessary to give effect to its determi-nation, excempt the applicant from the applicable provisions of the zoning by-law; By any person who alleges that due to special circumstances or conditions the provisions of subsection (3) of section 568 will result in undue or unnecessary hardship to him; (see below) With respect to matters arising under subsections (4) and (5) of section 568; (see below) By any person aggrieved by a decision by any Board or Tribunal to whom Council has delegated power to relax the provisions of a zoning by-law. SECTION 568, SUBSECTIONS (3), (4) AND (5) OF THE VANCOUVER CHARTER 568. (3) A lawful use of premises existing at the time of coming into force of a zoning by-law, although such use is not in accordance with the provisions of the by-law, may be continued; but, if such non-conforming use is discontinued for a period of ninety days, any future use of those premises shall be in conformity with the provisions of the by-law. The Zoning Board of Appeal shall have power to allow relaxation of this provision. (4) No additions or structural alterations shall be made to a non-conforming building without (a) the approval of the Zoning Board of Appeal, if the non-conformity is in respect of use. (5) Where a non-conforming building is damaged or destroyed by fire to the extent of sixty percent (60%) or more of its value above its foundations as determined by the City Building In-spector whose decision shall be subject to review by the Zoning Board of Appeal, it shall not be repaired or reconstructed with-out the approval of (a) the Zoning Board of Appeal if the non-conformity is in respect of use. FILING OF APPEAL PROCEDURE The Notice of Appeal Form must be completed by the appellant and filed with the Secretary, eight clear days prior to the meet-ing of the Board. The appellant must state clearly on the application form the clause or clauses of the Vancouver Charter under which the appeal is submitted. The appellant must also state clearly and precisely the Section(s), Subsection(s) or Clause(s) of the Zoning and Development By-law which he wants relaxed, and further state the amount and/or type or relaxation. Sketch plans showing the relaxation requested must accompany appeals. 573. (1) The (a) (b) (c) (d) (e) APPENDIX V 1. SPECIMEN OF "NOTICE OF HEARING" AS RECOMMENDED BY THE AMERICAN SOCIETY OF PLANNING OFFICIALS. 2. SPECIMEN OF "NOTICE OF APPEAL" AS RECOMMENDED BY THE AMERICAN SOCIETY OF PLANNING OFFICIALS. Source: ASPO Planning Advisory Service Information Report No. 33, Chicago: American Society of Planning O f f i c i a l s , 1951. APPENDIX. V 196 NOTICE TO INTERESTED PROPERTY OWNERS BOARD OP ADJUSTMENT UTAH COUNTY, UTAH S o u r c e : ASPO P l a n n i n g A d v i s o r y S e r v i c e I n f o r m a t i o n R e p o r t No.33,(Chicago: A m e r i c a n S o c i e t y o f P l a n n i n g O f f i c i a l s , 1951J,p.30. Dear Property Owner: An application' f o r a variance to the Utah County Zoning Ordinance has been f i l e d with the Board of Adjustment by The property i s situated i n the • Zone D i s t r i c t and i s located at The request, i f approved, would authorize The Building Inspector was required, under the provisions of the Zoning Ordinance, to deny the permit because ^ However, the Board of Adjustment, under certain conditions and safeguards, may have the authority to grant the request. A public hearing w i l l be held by the Board of Adjustment on ^  . , 19 , at P.M. i n the County Commissioners Chambers i n the C i t y & County Build i n g , at which time you may submit your views on the matter i n person, by w r i t i n g , or by representative. I f you knew of any interested property owner who, f o r any reason, has not received a copy of t h i s l e t t e r , i t would be greatly appreciated i f you would inform them of tho time and place, of the hearing. Sincerely yours, UTAH COUNTY BOARD 0? ADJUSTMENT S&crctary Provo, Utah APPENDIX. V 197 SPECIMEN OP NOTICE OP APPEAL I (we), of Mane " i s i l Address r e s p e c t f u l l y request- that a determination be made by tne board of adjustment on the following appeal., which was denied by t>ic building „'nspector on 19 f o r the reason that i t was a matter which, i n the opinion of "sai" d~in-speFEor^ should properly come before the boari of adjustment. An interpretation J Q exception ]T| v a r i a n c e Q i s requested to Section Paragraph of the Zoning Ordinance f o r the reason that: Q I t i s an appeal f o r an interpretation'of the ordinance or map. _3 I t i s an eixception to the ordinance on which the board of adjustment i s r e -quired to pass.. F} I t i s a request- f o r a variance r e l a t i n g to ths []j use area Q frontage Q yard or ^ provisions of the ordinance. Remarkss The premrlses affected are situated at :—1 zone d i s t r i c t - Legal description of property involved i n t h i s appeal; Has any previous application or appeal been . i n connection with these pi-.-^ises? _ _<> vrnat i s the applicant's i n t e r e s t i n the premises affected? IThat i s the approximate cost of the work involved? $ . Explanation of purpose to which property w i l l be puts P l o t plan attached [ j yes [ ] no. 1 ' X 9 8 Ground plan and elevations attached |Hj yes |PJ no, I f no« explains Following are the nam»s and addresses of owners of'property within a distance of 300 feet from the exterior l i m i t s of the property i n v ^ Y e d i n t h i s appeal as shown by the l a t e s t assessment r o l l of Utah County; Name . (U'^cess -I further state that i f t h i s request i s granted, I w i l l proceed with the actual construction i n accordance with the plans herewith submitted within s i x months from date of f i l i n g t h i s -.^peal, and that I am able from a financial;, l e g a l , and physical basis to do so 0 Signature of Applicant Dated at , Utah, the day of > 19 For Use of Board of Adjustment Only Date hearing advertised % Date of hearing j Fee Pdo Receipt Decision cf the Board of Adjustments Reasonsi 1 . 2. 3. Source: ASPO Planning Advosory Service Information Report No.33 (Chicago: American Society of Planning O f f i c i a l s , 1951), p.18. 

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