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Zoning administration in Vancouver : time for a change?

University of British Columbia

Regulation of land through zoning is inherently controversial as it involves individual rights and freedoms often in conflict with public goals and policy. To ensure the general rules of regulation are not dispensed in an arbitrary and capricious manner, thereby causing undue or unnecessary hardship in specific cases, the zoning board of variance has been established. This board is a quasi-judicial lay tribunal statutorially limited to resolving issues concerning individual cases of hardship, administrative misjudgment or errors of interpretation related to zoning matters. In recent years concern has been expressed over whether or not the board of variance can appropriately respond to appeals of administrative decisions which are the product of an increasingly dynamic and complex zoning and development process dependent on the discretionally judgment of professional planning staff. Correspondingly, concern has also been expressed that procedures established by these lay boards only inadequately provide for the rights of the individual. The purpose of this thesis is to document and evaluate the decision-making procedures established by the board of variance. It is hypothesized that the board system of zoning administration, as exemplified by the operation of the existing Vancouver Board of Variance, enables maximization of public benefits accruable through the exercise of discretionally zoning techniques while adequately meeting the equity requirements of a quasi-judicial appeal body. To test this hypothesis, the evolution of zoning in Canada and the United States of America was reviewed and two case study models of zoning administration, the Vancouver Board of Variance and the Seattle Hearing Examiner, introduced. Examination of their history and operation identified several administrative problems with these systems. With this background, a model with eight normative criteria of administration was established using selected socio-political and judicial elements of our society. The two case study systems were then compared with the theoretical model and the hypothesis disproved. It was concluded the Vancouver Board of Variance displayed shortcomings resulting from the local zoning process, the lack of required qualifications for Board members, and the informal procedures of the Board. It was further concluded the Seattle Hearing Examiner system, while better meeting the normative criteria, could not be adopted to the Vancouver administrative setting. It was then suggested the Vancouver Board of Variance could be modified so as to better meet the criteria of the normative model, thereby rectifying the identified shortcomings. A set of recommendations pertaining to these shortcomings was- presented and a method of implementation suggested. These recommendations included: a) eliminating those appeals concerning the use of either land or structures from the Board's jurisdiction; b) permitting the Planning Department to issue variances in certain cases; c) modifying the public hearing requirement from mandatory to discretionary in certain circumstances; d) creating a citizens' advisory committee to provide a policy overview of variance decisions for City Council; e) permitting wider judicial review of individual variance appeals by incorporating policy statements under the protection of the "Official Development Plan"; f) requiring Board members have qualifications; g) limiting the term of membership to the Board and requiring attendance of meetings; h) requiring the Chairman of the Board have a legal background, a judicial temperament and be appointed jointly by the Province and the City; i) modifying the procedures and operation of the Board so that: (i) the appeal form indicates grounds for appeal and advises of requirements for any subsequent judicial appeal, (ii) public notice is given all appeals and provision is made to involve local groups, (iii) an information pamphlet on the Board is published, (iv) information can be exchanged prior to the hearing, (v) the powers of the Chairman are specified, (vi) ex parte communication is limited, and (vii) upon request, reasons in writing are given for decisions of the Board. It was concluded the recommendations would result in the significant improvement of Board of Variance by: a) returning policy decisions to the legislature, b) expediting the handling of variance appeals, c) increasing the accountability of the Board to the legislature and the judiciary, d) re-establishing membership qualifications for Board members, and e) establishing procedures to ensure the Board conducted its deliberations with fairness, clarity and openness, free from political interference.

Text

2010-04-01

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http://hdl.handle.net/2429/23276

Planning

University of British Columbia

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