Call rejected for legal opinion on White Rock highrise moratorium

White Rock council votes 5-2, with mayor citing ‘foregone conclusion’

White Rock Coun. David Chesney’s attempts to argue for a moratorium on further highrise and multiple-residence development in the city – at least until after October’s civic election – hit a wall for a second time Monday.

A majority of council voted against a revised version of Chesney’s motion being sent on for a legal opinion, following a detailed staff dissection of both the proposal and its premise.

“I don’t want to waste any money on this, it’s a foregone conclusion,” Mayor Wayne Baldwin said, just prior to the vote, adding that “a couple of months before the election there is not going to be much coming forward, I can assure you of that.”

Chesney had predicted Monday’s 5-2 decision to Peace Arch News last week, after he learned that a request to city staff for a legal opinion on his revised version was going straight into the council agenda as a notice of motion.

He told PAN last Friday that he had modified the original call for a moratorium to specify development that would call for zoning changes or OCP amendments, after the first motion was termed ultra vires, or outside the law, at the May 28 meeting.

That opinion was expressed, at the prompting of Baldwin, by city administrator Dan Bottrill, who told council that it would be opening itself up for litigation for refusing to consider a development application or building permit that met the requirements of the zoning bylaw and the OCP.

Before Monday’s meeting, Chesney told PAN that he had revised the moratorium call accordingly “since those were the two points that were belaboured to me by Mr. Bottrill and the mayor.”

Chesney said he was surprised to see the revision appear as a notice of motion for council to vote on, since he submitted it to staff last week to see if he could get a legal opinion on it.

“The fact that our CAO was unwilling to forward it to the city solicitor strikes me as a little strange,” he said.

Instead, Chesney and the rest of council heard a further lecture on the illegality of the motion Monday, this time from planning and development services director Carl Johannsen.

Johannsen’s comments, at the invitation of Coun. Lynne Sinclair, also took aim at a Peace Arch News editorial last week that had wondered why White Rock could not entertain such a moratorium when Surrey had taken similar measures in Rosemary Heights and Sunnyside Heights.

“Could you explain why it was legal there and isn’t here?” she asked.

Johannsen explained that the Local Government Act gives councils the authority to make land-use decisions, including zoning and issuing building permits based on form and character. He said that there are provisions in the act that, “if a plan is under review, a building permit could be held for 30 days, and maybe 60 days beyond that until the plan review is resolved.”

“Once council has zoned or rezoned a property for the density and use and height, and issued a form and character permit, that project can proceed to building permit… if you have zoning and land use on your property, you have property rights in terms of bring forward an application to build a certain building of a certain height, whether it’s a highrise or a lowrise.”

Johannsen said that in the Rosemary Heights issue, there was a council resolution to withhold the processing of applications for six months “until a comprehensive review of the Rosemary Heights plan was completed” noting that the plan has to be under review at specific direction from council.

“In Coquitlam there was a ‘tacit’ moratorium where council directed staff not to process highrise applications until such time that staff brought back updates to the neighbourhood plan or the OCP regarding height,” Johannsen said. “If the OCP is not under review or the zoning bylaw is not under review, council, (through the act), does not have the ability to hold up an application from proceeding.”

Coun. Grant Meyer questioned Chesney’s premise for a moratorium, that the current council had approved “15 highrises in the last three years.” That led to a further analysis by Johannsen, which whittled the number down to 11 buildings, based on a review of past and current applications.

Johannsen added that five of these buildings – three for the Foster Martin project, plus one each for the Oceana PARC, and the RDG project – had required only issuing a development permit “as the zoning on those properties was already there to provide that” under CR1 zoning approved by council in 2013.

“The decision council made in 2013 on the Sausalito development would have demonstrated the folly of trying to stop a building process at the permit stage which cost the city untold money in court cost and punitive costs,” Baldwin commented.

Lone support for Chesney’s motion came from Coun. Helen Fathers, who said he was within his rights as a council member to request a legal opinion.

“A quick communication with our legal team, which we spend hundreds of thousands of dollars on, would not have been a big deal,” she said. “I support his right to obtain that on behalf of the citizens of White Rock.”

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