Case Law Update James H. Goulden and Kathleen T. Higgins October 19, 2012
Overview Zoning and Land Use Bylaw Enforcement First Nations Consultation Taxation Privacy Breaches
Zoning Compliance with OCP Sevin v. Prince George (City), 2012 BCSC 1236 Involved rezoning for a therapeutic recovery centre in a generally residential area Bylaw was quashed for being inconsistent with the Official Community Plan Recovery centre an institutional use not a residential use
Zoning Procedural Fairness Fisher Road Holdings Ltd. v. Cowichan Valley Regional District, 2012 BCCA 338 Bylaw for downzoning of composting centre Council relied on reports that were available to the public, but not in materials at hearings Bylaw was quashed for being a breach of procedural fairness because public was not notified of intention to rely on reports
Zoning- Procedural Fairness Rocky Point Metalcraft Ltd. v. Cowichan Valley Regional District, 2012 BCSC 756 District rejected a development permit and then passed a bylaw rezoning land from Heavy Industrial to Forestry Industrial Permit decision quashed for unreasonableness as the reasons did not make it clear how to comply, and Rocky Point was not given opportunity to respond Bylaw quashed for not disclosing during public hearings a rezoning application of one of the other properties subject to the bylaw
Zoning Procedure PSD Enterprises v. New Westminster (City), 2012 BCCA 319 Lawsuit filed against City because bylaw to amend zoning to allow liquor store failed Proponent made submissions to Council after third reading, which caused third reading to be rescinded City found not liable for representations to proponent or allowing him to make submissions.
Zoning Latecomer Agreement Okanagan Land Development Corporation v. City of Vernon, 2012 BCCA 332 Latecomer bylaw for sewer extension Court found municipalities have discretion of when and how to collect service extension fees Bylaw not uncertain. What is required is that a reasonably intelligent person be able to determine the meaning of the bylaw and govern his or her actions accordingly.
Zoning Bylaw Enforcement T.S.G. Sales v. Vancouver, 2012 BCSC 1177 City attempting to enforce zoning bylaw against adult retail store T.S.G. argued enforcement was discriminatory Court held for the City Selective bylaw enforcement by itself not discrimination
Zoning Bylaw Enforcement District of Lake Country v. 0793873 BC Ltd., 2012 BCSC 1493. Land zoned for a single dwelling or group home was being used as a recreational property for a group of families, including RVs with constructed decks The use as a recreational property was not a permitted use under current or former zoning bylaws Owners argued accessory use, but it was found to be the primary use and did not qualify as an accessory use
Bylaw Enforcement - Occupy The Corporation of the City of Victoria v. Thompson, 2011 BCSC 1810. Occupy movement was in Centennial Park City sought to enforce its Parks Regulation Bylaw using s. 274 of the Community Charter Court held in favour of the City - the balance of convenience favoured the municipality being able to regulate park space (did not rule on constitutionality of bylaw)
Bylaw Enforcement Discretion Burke v. Sunshine Coast Regional District, 2011 BCSC 1636. Burke sued the District for negligently failing to enforce a bylaw against neighbours performing automotive repairs on a lot zoned residential. Court struck claim because Courts cannot review enforcement decisions unless there are unusual circumstances or bad faith
First Nations Consultation Neskonlith v. Salmon Arm (City), 2012 BCCA 379 Proposed development adjacent to Neskonlith reserve that might effect river The Court found that municipalities generally do not have a duty to consult Even if there was a duty to consult, City fulfilled it
First Nations Consultation Adams Lake Indian Band v. Lieutenant Governor in Council, 2012 BCCA 333 Province incorporated Sun Peaks Resort Municipality Provincial government has a duty to consult in incorporating a municipality Consultation required at the low end of the spectrum Duty to consult met in this case
Discretion on Taxation Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2 Dispute over industrial tax rate paid by Catalyst Paper Tax rate upheld Courts will grant a large amount of discretion to municipalities in deciding whether a rate of taxation is reasonable
Taxation 911 Fees Canadian Wireless Telecom Association v. Nanaimo (City), 2012 BCSC 1017 Nanaimo passed a bylaw requiring wireless companies to enter an agreement to collect a monthly levy from each subscriber for 911, or pay a fee for each 911 call received from a subscriber Bylaw was quashed as fee for each call was found to be an unauthorized tax, and the fee provisions could not be severed from the bylaw
Privacy Breaches Skakun v. Prince George (City), 2011 BCSC 1796 Councilor convicted because he released an investigation report on workplace conflict Public bodies may only release personal information by following FOIPPA