Day 1 – FCRA vs the City of Vancouver and Concord Pacific

Back in May 2014, the FCRA filed a petition in the Supreme Court of British Columbia asking the Court to determine whether the City was right in according Concord Pacific “Hardship” status, exempting them from the Park zoning, and allowing them to conduct business on the 9 acres park-zoned site located on the northeast shore of False Creek.  The existing permit expired on May 16th, and our petition to the court asked that it not be renewed.

Our issue was very simple, and lawyers for the City agreed it could be dealt with in one day.  Enter Concord Pacific.  Concord filed an application to be named a full party to our dispute with the city.  Their application was granted, and our case became FCRA vs the City of Vancouver AND One West Holdings (Concord’s legal name).

Let me take a quick detour to provide some definitions.  Our legal action is a Judicial Review procedure.  Many decisions are made by civil servants acting in a quasi-judicial manner, and by various administrative boards and tribunals.  Appointees are normally considered “experts” in their fields.  For example, a member of the BC Labour Relations Board will normally have extensive knowledge of labour law and/or staff relations and/or human resource management.  In cases such as this, Courts allow a high level of “deference” to the decisions made.  Because the decision-maker has specialized expertise, the Judge will only consider whether the decision was “reasonable”, not whether it was correct.

However, the decision-maker must stay within the ambit of his/her expertise.  Otherwise, the decision-maker looses jurisdiction, and a Judge may review the decision on the basis of “correctness”, not simply “reasonableness”.  If a decision-maker makes a decision outside the authority of the legislation that created the mandate, this too would render the decision reviewable on the higher standard of “correctness”.

After our petition was filed in May, on July 24, 2014, the City of Vancouver renewed the “temporary” development permit, allowing Concord another 3 years of doing business on the park site.  We then amended our petition, asking the Court to quash that decision and not to allow for any of the other commercial operations to take place on the 9 acre site.

Back to our day in court.

The day started with Concord’s lawyer, Mr. Hein Poulus, Q.C. asking for an adjournment because he would require more than just one day of the court’s time.  We all knew that to get a 2-day court appointment would take us well into 2015.  Our lawyer, Bob Kasting, argued that we should proceed.  The Mr. Justice Sewell agreed.

Bob presented our case:

  1. That allowing commercial use of park-zoned land wasn’t’ just a mere “relaxation” of the zoning, it was a change of use from Park to Business.
  2. That the Director of Planning did not have jurisdiction in the Vancouver Charter to change use, rather Council would have to go through its normal procedure of re-zoning to change from park zoning to commercial use.
  3. Therefore the Director of Planning did not have the jurisdiction.
  4. Alternately, if the Director of Planning had the jurisdiction, he made an unreasonable decision in considering the application of “hardship” to Concord’s situation as all Concord’s evidence was about their marketing a “waterfront” lifestyle, not about hardship.

Concord presented next, although obviously there were ongoing private discussions between the City’s lawyer and Mr. Poulus. Mr. Poulus took the Court through a lengthy (and in our view totally irrelevant) history lesson from Expo ’86 through to the present.  His presentation also attempted to interpret the FCRA’s motivations.  Hours later, he finally got around to focussing on the questions before the Court.

Concord and the City argue that the Director of Planning has jurisdiction to relax the zoning and allow commercial use of park land.  Further, they argue that because of the shortage of land in northeast False Creek, not allowing this use of the 9 acre park site would cause “unnecessary hardship” to Concord.

By the end of the day, Concord finished its presentation, but indicated that they were “surprised” by our application to deny other commercial uses for Lot 9, and would need time to prepare for additional submissions.

Court adjourned.  Our challenge now is to schedule another day in the Court.  At that point, the City of Vancouver is likely to present rather than simply allowing Concord to speak on its behalf.  Then the FCRA will have an opportunity for a closing statement.

Submissions and supporting affidavits are all posted on our web site:

In addition, Jeff Lee has written a piece in the Vancouver Sun.  He was present for the first half of the day’s proceedings.

Although obviously the FCRA wants to get on with building the park, however, that is not the issue before the court.  In our view, Concord’s extensive presentations on soil remediation, viaduct removal, allowing various charitable organizations to use lot 9 for events like the Sun Run, etc. is background noise, attempting to delay proceedings and confound the court.  But at the end of Day 1, Mr. Justice Sewell made it clear that he is still focussed on the “evidence of hardship” before Mr. Jackson when the decision was made to allow commercial use of park-zoned land.

Concord’s Response to the FCRA Petition

Concord has filed its response to the FCRA petition for judicial review.

Their response attempts to steer attention to FCRA motivation rather than the quite narrow focus on the question before the Court:  Would Concord suffer “unnecessary hardship” such that the City could grant them an exemption from zoning?

The response contains all kinds of information on soil remediation,  various charitable causes they support, constraints around the  timing of Creekside Park delivery, etc.  Everything except “Hardship” – the basis of the exemption!

Have a read.  You’ll enjoy it.

Concord Pleads Hardship – The Court will determine whether the City made a reasonable decision

On December 12, the FCRA will have its day in court, asking whether the City was justified in relaxing the zoning bylaw to allow Concord Pacific to sell its condos on park-zoned land.

Concord bases its case on wanting a location that accurately portrays the lifestyle it is marketing i.e. waterfront luxury condominiums. The City agreed, putting Concord’s marketing plan ahead of the community’s need for green space.

Here is Concord’s application, filed as part of the city response to the FCRA’s challenge.  Does this sound like hardship to you?
Concord's Hardship Case

Welcome New Board Members

IMG_2447The FCRA hosted another successful AGM at Science World, December 2, 2014.  Our guest speaker was Adriane Carr, recently elected to City Council with more votes than any other candidate.

Councillor Carr provided interesting commentary and analysis of the recent civic election, including some insights into how we might tell if there is any new collaboration on the City Council. We were also joined by Olympic Village neighbour, John Coupar, NPA,  newly elected as Chair of the Vancouver Park Board.  Both Councillor Carr and Commissioner Coupar indicated their interest in working collaboratively in the interests of community and neighbourhoods.

Association Co-Chairs Patsy McMillan and Fern Jeffries tabled their annual report, highlighting the advocacy work undertaken by the association on a range of issues including the seismic upgrade for Lord Strathcona School, playground improvement, safety and up-keep of parks, and local planning and development. Much of our energy has focused on local development issues such as the city’s unfortunate approval of more than 1,300 new units with  no increase in childcare spaces or green space.  The Greening the Creek Light Campaign has lit up homes all around False Creek, sending a silent message to City Hall that we want Creekside Park now.  Our Court challenge to commercial use of park space continues in the Supreme Court of British Columbia on December 12, 2014.  Stay tuned!

We thank Gary Jackson for his years of service to the association.  We welcome new Board Members, Peter Kieser, JF Williams, Fiona Burke and Aaron Chapman.  This promises to be an interesting and exciting year.

Open House December 3, Creekside Community Centre, 4 pm to 7 pm

The FCRA lobbied for the refurbishment of the Creekside Park playground as part of the Community Amenity Contribution paid by the developer for the rezoning of the area east of the Cambie Bridge..  You will recall that we lost one of the playgrounds on the south side of that park when Science World remodelled and built its outdoor Science extension.

We’re happy to report that the Park Board is now moving to renew the playground.  They will have some initial drawings and ideas to present.  They are asking for community feedback on this initial work and community input into the final placement of the playground, design and playground components.

Come to the Open House


Another condemnation of the 105 Keefer Street proposal and of the planning process.

When I was president of the Dr. Sun Yat-Sen Garden Society from 2008 to 2010, I led that organization into the public discussion of the Historic Area Height Review.  I convinced the Garden Board to join with the Chinatown organizations in what was to become known as “Chinatown United.”  After defeating the foolish idea of 30 storey towers in Chinatown, Chinatown United gave its strongest possible support to City’s Historic Area Height Review.  We supported Planning and Council in changing the zoning of the historic Chinatown district for the precise purpose of encouraging development that would secure the economic health of the district and conserve its unique heritage character.   The changes we endorsed are what have made the 105 Keefer Street proposal possible.   After the October 8th community open house I’m inclined to believe I made a great mistake in encouraging the Dr. Sun Yat-Sen Garden Society to support the HAHR and in working hard with Chinatown United to create the political support Council needed to turn the review into enabling by-laws.

These are my greatest concerns arising from the October 8 open house:

  1. However one dresses it up, the proposed building is a tall bulky structure in an historic district that is low and fine-boned.  Disturbingly, the presentation materials fail to represent this.

As I pointed out to City staff and the proponent’s staff the visuals at the open house, especially the isometric view from the southwest, were disturbingly inaccurate.  The drawings show the buildings on the north side of the 100 block of Pender as being about the same height as the proposed redevelopment.  The proposed building appears to be tucked into a neighbourhood of buildings of a similar height and bulk.  We of course know this is not the case.  The project architect pointed out that this drawing was generated with the City’s data.  From a community perspective, the source of this error isn’t relevant; what matters is the proposed structure is of a much different height and bulk than the structures around it and the presentation materials present it as otherwise.  I am not suggesting these drawings are purposefully misleading.  They are simply misleading.  The model, while more accurate, also contained many errors, most of all completely missing the variation in the height of existing buildings on the north side of the 100 block East Pender.  The height and bulk of new buildings in Chinatown does matter.  The impact of these structures on the Dr. Sun Yat-Sen Park and Garden and East Pender are especially important.  Nothing should be allowed to compromise these rare and unique assets and it is important that the proposed redevelopment be presented to the community in a clear and accurate fashion.

  1. To date the project proponents have not demonstrated how this building conforms with Section 2.3 of the Chinatown Neighbourhood Plan and Economic Revitalization Strategy concerning “Higher Heights.”

The Chinatown Neighbourhood Plan & Economic Revitalization Strategy of June 2012 reads:  “Higher Heights: A rezoning policy for Chinatown South was also introduced as part of Council’s approval. This policy provides Council the opportunity to consider rezonings up to 120’ throughout HA-1A and up to 150’ within a sub-area of Main Street. The higher buildings in Chinatown were for the specific purpose of economic revitalization while also considering heritage values. These sites are also expected to provide public benefits, and the rezoning policy specifies these benefits should meet the community’s objective of innovative heritage restoration, cultural and affordable housing projects. For every supported higher building, a significantly higher standard of architectural and urban design excellence will be required.”  (from Section 2.3, page 28).

This is the measure against which HA-1A rezoning applications that ask for height increases and high floor space ratios must be held.  It is not enough that the proposed building provides housing units, especially of standard market variety.  So here are the questions that arise from the simple breaking out the clauses of Section 2.3, above:

  • How will the building contribute to the economic revitalization of Chinatown?
  • How has it taken heritage values into account?
  • What public benefits does it generate?
  • What does it contribute to innovative heritage restoration?
  • What does it offer culturally?
  • How does it contribute to affordable housing?
  • Does it achieve a higher standard of architectural and urban design excellence?

Nothing in the open house suggested these questions – taken directly from the neighbourhood plan as adopted by Council – have been seriously addressed.  That needs to be done in a thorough way.  Maybe it will turn out that the proposed height and bulk are irreconcilable with Section 2.3.

  1. The City itself needs to explain how this rezoning and the building it will allow will serve the overarching objectives of the Chinatown Plan.

The City needs to decide if it is really serious about the Chinatown heritage district.  All over the world districts like this are used to inform citizens of their heritage and serve as economically significant tourist attractions.  How will a proliferation of buildings such as those under construction at Keefer and Main and the proposed redevelopment of 105 Keefer contribute to this?  What differentiates the buildings I have referenced from other mid- to high-rise residential structures anywhere in the Vancouver Metro Region?  Is the City prepared to permanently damage the heritage district  and Sun Yat-Sen Park and Garden for a few additional housing units?

I left the October 8 open house with impression that the proposed 105 Keefer building, like the two redevelopments at Keefer and Main, would not contribute to the preservation of the historic buildings that constitute the physical heritage value of Chinatown.  Nor would the 105 Keefer proposal create seniors or social housing.  But the wide Chinatown support for greater density and height was premised on these expectations.  And these expectations did not come from nowhere – they were explicit in the years of discussion leading up to the Chinatown Plan and in the Plan itself as adopted by Council.

The City, as much as the proponent, has to do some serious soul searching as to how we have gotten to this stage with the third disappointing building under the revisions to the district’s zoning bylaws the community so resoundingly supported.  How will Chinatown be any different than a strip of Kingsway if redevelopment continues on this course?  There is a lot of good will in every corner in this discussion but that good will needs to be fully reflected now in the buildings that are actually constructed under the new rules.”

Doug Halverson

Our friends and neighbours in Chinatown express outrage

The proposed development at 105 Keefer has raised the ire of the Chinatown Revitalization Committee.  This development flies in the face of the vision and values expressed by the faithful volunteers who have worked for years on revitalization.

Here’s a sample of one submission to the city from UBC professor Dr. Henry Yu:

I am adamantly opposed to the proposed rezoning. Having been a part of the Chinatown Vision and revitalization consultation process for the last decade, and supportive of the consensus created through much hard work involving over 30 Chinatown organizations as well as interested stakeholders from all over the city of Vancouver, I am appalled that all of the work that went into that process will be destroyed in one moment of massive disappointment and failure. This proposal flies in the face of all of the agreed upon principles in the Vision that took so much political work to agree upon. What is needed is a freeze or moratorium on development permits in the Chinatown area until we have created better policy instruments and tools for planners to implement the Chinatown revitalization strategy, and assurances that those who came together to create the revitalization strategy have more formal participation in the shaping of the development of Chinatown. This building could be placed anywhere in the city–Yaletown, False Creek/Olympic Village–why is it in Chinatown? Allow the developers to build it in another site that does not fly in the face of the historic character of Chinatown, and which does not insult community stakeholders by saying that 137 luxury residential units are a higher priority than seniors housing and other needs identified in the Chinatown Vision and revitalization strategy. If the City of Vancouver goes ahead and allows this rezoning, or even if this becomes a permit application to go ahead at 12 stories without rezoning, there will be an open, ugly and vicious political war on City Hall that makes the freeway fight look like a nostalgic moment of togetherness. It will tear the hard won consensus of Chinatown apart, and lead to a mistrust of city planners and City Hall for years to come. The greatest danger is that this development is symbolic of a promise not delivered. The Chinatown Vision and revitalization process was one where the city asked the various Chinatown organizations and community stakeholders to take part, and in exchange for the consultation the City would honour the priorities and commitments made, and protect the unique cultural character of the community. The promises have not been fulfilled, and having this building join 188 and 189 Keefer as three glass towers that have no connection to the street life or cultural fabric of Chinatown is not just an insult, but is easily understood as an act of aggression in terms of misleading the community with promises that went unfulfilled. I am personally angered by the bait and switch quality of the Chinatown Vision process in which I took part in good faith, and also in which I put my own personal and scholarly reputation behind to convince others to take part. I am livid that my bona fide participation as a volunteer for years in various capacities both as a scholar and as a community member has led to this proposal sitting in the last best anchor site for the revitalization of Chinatown. Nothing about this proposal will drive forward the strategic needs of Chinatown and its revitalization. It is anathema to all of the hard work that has been done