Category Archives: In Court for Creekside Park

FCRA Statement on Northeast False Creek Park Plan

The False Creek Residents Association has issued the following statement regarding future plans for Creekside Park and the proposed Northeast False Creek Area Plan.

“The FCRA is excited about the prospect of a long promised new park. However, the western boundary should remain as the present day Carrall St. Greenway to provide maximum waterfront park space and leave the current boundaries of Andy Livingstone Park intact.

The City of Vancouver’s current park concept plan is not in keeping with the vision of a waterfront oriented park space. It does not meet the vision of a park for Vancouver citizens that was contractually agreed on with Concord Pacific nearly three decades ago, and who has benefited from tax breaks, and profited from having a presentation centre on the park site during that timeframe.”

Vancouver residents can still make their views on the plan known to City planning staff & City Council. Details can be found in this Document.

National Calls Attention to City’s Proposal to Move Carrall Street

Residents of The National (1128 Quebec Street) have put out a document that shows serious concern over the City of Vancouver’s proposal to move Carrall eastward. The document outlines the City’s move that would allow more Concord Pacific condos on the shoreline and less waterfront park space.

“The most recent park design gives Concord Pacific more waterfront property to build residential towers, while shifting the Creekside Park extension to the area under the Skytrain line and next to the new six-lane Pacific Ave.”

“The original development plan for Creekside Park promised in 1990 was a contiguous east-west park alignment. Currently, the City of Vancouver is proposing a north-south alignment to the park, thus moving the park further away from the waterfront.”

You can read the original document here.

The Battle of False Creek

BC Supreme Court Justice Sewell decided that the Director of Planning has the power to change land use if “enforcement would result in unnecessary hardship.”

Although to us laypersons, it seems most unreasonable to see one of Canada’s wealthiest private companies enduring ‘hardship’ if not allowed to sell condos on park-zoned land, by the Standard of Review in judicial review applications, Justice Sewell determined Mr. Jackson’s granting hardship status was reasonable.

No public hearing is required; no Council approval is required. If Vancouverites want more public accountability, the wording of the bylaw must be amended. Read more at F.C.R.A False Creek Residents Association v. Vancouver (City),  2014 BCSC 1674—2014/09/03 

Justice Sewell also accepted the position put forward by the City and Concord Pacific that the park delivery was not imminent.

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In that light, using the park-zoned land for commercial purposes was not contrary to the public interest. Of course, we, as representative of the public would disagree.

In losing the Judicial Review Battle of False Creek, we have not given up. The FCRA will continue to fight for green space in our community; for public waterfront access; and for honouring the zoning of lot 9 as park and recreation.

We will continue to shine green lights in our windows calling for the City of Vancouver and Concord Pacific to fulfill a decades-old contractual obligation to complete Creekside Park and the Seawall.

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Buy a bulb, turn it on nightly, remind the City of Vancouver that we expect the park to be a park, and not the site of more towers.

January 30, 2015 – Our Judicial Review Application before Justice Sewell Concludes

The judicial review application is now concluded and we await a decision.  The second, and final day before Mr. Justice Sewell in BC’s Supreme Court opened with Concord Pacific again taking the floor to announce that it would seek costs against the FCRA.  Justice Sewell expressed his surprise, opining that costs were not commonly awarded in cases of judicial review.  This was particularly apt in this instance as the FCRA application was brought against the City of Vancouver.  Concord Pacific then budged its way into the proceedings on its own motion.

The second issue raised by counsel for Concord Pacific pertained to the FCRA’s application to have the Court declare the the City of Vancouver should declare that no further commercial parking should be allowed on Lot 9.  In its response to our petition for judicial review, the City replied that if could grant a permit for commercial parking on application.  Our request to the Court was based on our position that Concord’s  hardship status apples only to the sales centre, not to the need to allow commercial parking.  Concord Pacific of course objected to any such curtailing of their commercial activities.

Next up – the City of Vancouver.  We were anxious to hear whether there was any real evidence to support Concord’s hardship status.  Sadly, we were disappointed to hear nothing new.  For the most part, the City’s lawyer simply stated that the City of Vancouver “adopted” the positions assumed by Concord Pacific.

Further, the City maintained that the park would not be delivered in the next three years therefore our petition was unnecessary.

Bob Kasting, counsel for the FCRA summed up our petition, re-stating that notwithstanding all the evidence submitted by Concord Pacific and the City of Vancouver, this wasn’t a petition for a park.  It was a petition challenging the commercial use of a site zoned for exclusive park use.  While the Director of Planning may have jurisdiction to ‘relax’ zoning provisions, he did not have jurisdiction to change the use of the land.

In closing, we do want to thank Bob for all his work on our behalf.  In our view, it’s clear — prime waterfront property which is zoned for public use as a park should not be used for exclusive private parties, for sale functions, or high end displays of waterfront living.  The “hardship” excuse to allow this was simply that – an excuse.  We hope the Court will agree.

January 30, 10 am in Supreme Court

The City will present its case for granting “hardship” status to one of the country’s wealthiest private companies on January 30, 2015 at 10 am.

Concord Pacific’s Vancouver sales centre is built on land that is zoned for exclusive park and recreation use.  The City has allowed this on a “temporary” basis for the past decade.  The provision used by the City enables a “relaxation” of zoning if otherwise the owner would suffer unnecessary hardship.

The FCRA is asking the Supreme Court to review this decision.  Is it correct?  Is it reasonable?  Concord was successful in being named as a full party to this dispute.  For a full account of day 1 of this case, see our previous posting.

The presentation to Mr. Justice Sewell will conclude on January 30, with the City of Vancouver’s opportunity to justify its decision to allow commercial activities on park-zoned lands.

OOPS. City’s Planning Boss files 2nd affidavit to say he read the FCRA’s submission on Concord’s application to renew the “temporary” permit allowing their sales centre to operate on park-zoned land

In his evidence, Mr. Jackson’s first affidavit filed on December 22, 2014 indicates all the factors he took into account when granting “Hardship” status to Concord Pacific.  Conspicuous by its absence  was the submission made by the FCRA indicating our objection to renewing the  permit which would have resulted in 10 years of selling condos “temporarily” on a site zoned for exclusive park use.

This web site, the  FCRA’s tweets and Facebook page pointed out the fact that Mr. Jackson neglected to take the community’s position into account.

Now Mr. Jackson has filed a second affidavit, claiming that of course he took our position into account.    Not a surprise given the overwhelming negative response from the public to the omission of any reference to the community’s objection.

We are still awaiting word on a Court date to complete the presentation of this case in BC’s Supreme Court.

Would Concord Pacific suffer “unnecessary hardship” if it wasn’t allowed to sell condos on land zoned for exclusive park use?  The City of Vancouver says “Yes”.  The FCRA says “No.

No Pretense – Chief Planner Brian Jackson admits to the Court that he did not consider the FCRA submission

On December 12, 2014 the FCRA presented its case for Judicial Review of the City’s decision to grant Concord Pacific an extension of its temporary permit for the Sales Centre located on land zoned for exclusive park use. The city allowed Concord to build the sales centre on this land (Lot 9 of the BC Place/Expo District) on the basis of “hardship” as outlined in the Vancouver Charter.

In closing the proceedings for the day, Justice Sewell asked that the City clarify its consideration of hardship.  The City has responded with this affidavit filed by Brian Jackson, General Manager of Planning and development.

Before we filed for Judicial Review – in fact, before we even considered legal action, the FCRA wrote to Mr. Jackson outlining the reasons we objected to the renewal of the permit.  Obviously, we addressed the issue of “hardship”.

In his affidavit to the Court, Mr.Jackson refers to all the information he considered before issuing a 3 year extension for Concord.  What is not listed is our May 3 submission.

A clear admission that the City has made its decision without hearing from the community.

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: falsecreekresidents.org.

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