REQUEST FOR DECISION
DATE: April 28, 2020 Report No. DEV-20-024
TO: Laurie Hurst, Chief Administrative Officer
FROM: Bill Brown, Director of Development Services
SUBJECT:
Title
Public Hearing options during the COVID-19 Pandemic
End
RECOMMENDATION:
Recommendation
Except as may be consistent with a relevant provincial order, should the province provide alternatives; that Council not implement alternative public hearing processes for amendments to either the Zoning Bylaw or the Official Community Plan Bylaw other than to consider waiving the requirement for a public hearing for rezoning applications that are consistent with the Official Community Plan.
Body
RELEVANT POLICY:
Declaration of a Climate Emergency
Community Charter [SBC 2003] CHAPTER 26
Local Government Act
Official Community Plan Bylaw, 2018, No. 2922
Zoning Bylaw, 1992, No. 2050
Parking Bylaw, 1992, No. 2011
Development Application Procedures and Fees Bylaw, No. 2791, 2012
Advisory Planning Commission Bylaw, 2012, No. 2792
Subdivision and Development Control Bylaw, 1997, No. 2175
STRATEGIC RELEVANCE:
To Goals or Priorities of current work program
BACKGROUND:
Appendix A: Ministerial Order No. M083
Public hearings are an integral part of the process to amend the Official Community Plan Bylaw and the Zoning Bylaw. Public hearings are governed by specific statutory requirements that have been augmented by a rich and lengthy body of case law. The current Orders of the Provincial Health Officer along with her guidance have made holding a public hearing in compliance with both the statutory and case law very difficult if not impossible. To date, the provincial government has not offered an alternative approach to public hearings that would satisfy both the principles of public hearings and protection of residents, Council members, and staff from the COVID-19 virus. Staff do believe, however, that a Ministerial Order outlining an alternative approach to public hearings is imminent. At this time, staff are processing a minimum of six rezoning and Official Community Plan amendment applications that will require a public hearing before Council’s summer break. Given these circumstances, staff researched possible alternative approaches to public hearings. A summary of the findings follows.
Zoning exists in part to provide neighbouring property owners and occupants with certainty over what land uses and development rights exist on a specific property. When the owner of a property wishes to amend the uses or the regulations governing development, they are required to submit a rezoning application to the local government. Hence begins a process whereby a local government exercises its legislative powers within a democratic system. In making its decision about whether or not to amend the Zoning Bylaw, a local government considers a myriad of sources of information including its own policies and bylaws, and reports prepared by experts such as engineers, heritage consultants, architects, and arborists, to name a few. Council also considers the opinion of its staff which is typically communicated to Council via a staff report. In addition, Council especially wants to hear what the neighbours think about the proposed rezoning. The primary vehicle for gathering this information is via a public hearing. Section 464 of the Local Government Act requires that, “all persons who believe that their interest in property is affected by the proposed bylaw must be afforded a reasonable opportunity to be heard or to present written submission respecting matters contained in the bylaw that is the subject of the hearing.” The Township has traditionally held public hearings for amendments to the Official Community Plan and Zoning Bylaw as part of the Council meeting agenda, however, Public Hearings are not Council meetings and hence the recent provincial order regarding electronic Council meetings (Appendix “A”) does not apply to public hearings. As noted above, the province has not provided any guidance related to how a local government is to conduct a public hearing and remain compliant with the various provincial orders such as not having gatherings of over 50 people and guidelines such as maintaining a 2 m separation distance between individuals. In the absence of any direction from the provincial government, local governments are left to develop their own response to the legislative requirements related to public hearings.
In considering its response to the legislative requirement for public hearings during the COVID-19 pandemic, Council should bear in mind the following general principles associated with public hearings along with the relevant sections of the Local Government Act:
- Ministerial Order No. M083 does not address or change the statutory requirement for a public hearing.
- There are no provisions in the Local Government Act for electronic public hearings.
- The public hearing must be fair.
- If a gathering is made to look like a public hearing but is not a public hearing it should not be used as a substitute for a public hearing as it may create confusion regarding whether or not it was a public hearing.
- Everyone at a public hearing needs to have the opportunity to hear what everyone else has said and read what everyone else has written.
- Everyone who believes that they are affected by the bylaw amendment needs access not only to the proposed bylaw, but to all of the material that has been or will be considered by council in determining whether to adopt the bylaw (Surfside RV Resort Ltd. v. Parksville (City)[1993] B.C.J. No. 1651. 15 M.P.L.R. (2d) 296 (BC Supreme Court).
- Everyone who believes that they are affected by the bylaw amendment needs sufficient time before the public hearing to inform themselves about technical information (Pitt Polder Preservation Society v Pitt Meadows (District), [2000] B.C.J. No. 1305, 12 M.P.L.R. (3d) (B.C. Court of Appeal)).
- Pursuant to Section 465 (2) of the Local Government Act, everyone who believes that they are affect by the proposed bylaw must be afforded a reasonable opportunity to address Council (or its delegate).
- Sections 154 and 155 of the Community Charter allows public hearings to be delegated to one or more members of Council. For example, the City of Langford has delegated public hearings to one member of Council.
- Public hearings for proposed amendments to the Zoning Bylaw can be waived pursuant to Section 464 (2) of the Local Government Act where the amending bylaw is consistent with the Official Community Plan. Notice of waiver of public hearing must still be given and published pursuant to Section 467 of the Local Government Act.
Given the enormous volume of case law related to public hearings and the tremendous care required by both Council and staff to ensure a fair process, it is recommended that Council does not try any alternative form of public hearing or auspices for a public hearing. A legal challenge will be far more costly and time consuming than waiting for the provincial government to issue a Ministerial Order allowing for some form of modified public hearing process that respects the Public Health Officers orders and guidance while at the same time allowing the Zoning Bylaw and Official Community Plan bylaw amendments to continue to be processed without delay.
Council may wish to take advantage of the statutory provisions related to waiving public hearings that are consistent with the Official Community Plan for rezoning applications that are unlikely to generate much opposition from neighbours. Staff will identify such applications for Council’s consideration early in the rezoning process.
ISSUES:
1. Due to the legal complexities associated with public hearings, staff does not recommend that Council undertake any form of alternative public hearing process outside of the existing statutory framework within the Local Government Act process unless sanctioned by a Ministerial Order. The Minster of Municipal Affairs and Housing has suggested to BC’s mayors that such an order is imminent.
2. Organizational Implications
Assuming that Council does not undertake any form of public hearing process outside of the existing statutory framework, there are no significant organizational implications.
3. Financial Implications
Assuming that Council does not undertake any form of public hearing process outside of the existing statutory framework, there are no significant financial implications.
4. Sustainability & Environmental Implications
Assuming that Council does not undertake any form of public hearing process outside of the existing statutory framework, there are no significant sustainability or environmental implications.
5. Communication & Engagement
The communication and engagement process associated with the existing statutory framework for public hearings is well understood by Council and the public. Any changes to this framework will require a significant communications program.
ALTERNATIVES:
1 Except as may be consistent with a relevant provincial order, should the province provide alternatives; that Council not implement alternative public hearing processes for amendments to either the Zoning Bylaw or the Official Community Plan Bylaw other than to consider waiving the requirement for a public hearing for rezoning applications that are consistent with the Official Community Plan.
2 That Council instruct staff to develop an alternative public hearing process that allows for public input into amending bylaws for the Zoning Bylaw and Official Community Plan Bylaw that respects the Orders of the Provincial Public Health Officer and her additional guidance.