Canada: Challenging Zoning Decisions: Proper And Improper Considerations By Municipal Councillors

Last Updated: July 5 2015
Article by Olga Rivkin and Erika Lambert-Shirzad

What makes a municipal Councillor's vote "bad"? Where do we draw the line between proper considerations and malicious misuse of power?  The British Columbia Supreme Court examined these issues in a recent ruling in  Rodgers v. Sechelt (District), 2015 BCSC 687.  

The bistro and the liquor store

In 2005, Mr. Brock Rodgers applied to the District of Sechelt to re-zone certain lands in West Sechelt to permit the construction of a bistro.  Mr. Rodgers intended the bistro to operate with a liquor-primary license – a license typically issued for pubs, bars and other facilities engaged primarily in the sale of liquor. 

Together with the bistro, Mr. Rodgers wished to open a liquor store on nearby Sechelt Indian Band lands (the "Band Lands").  The bistro was crucial for this purpose: pursuant to the liquor laws in place at the time, the Liquor Control and Licensing Branch ("LCLB") would only issue the liquor store license to Mr. Rodgers if he also held a concurrent liquor-primary license. 

The District initially supported the rezoning bylaw which would allow the bistro (the "Bylaw"). However, after the public hearing, Council resolved that the bistro would be permitted only with a food-primary license – a license typically issued to restaurants.  This, of course, would thwart Mr. Rodgers' plan to open the liquor store on the Band Lands (which required a bistro operating pursuant to a liquor-primary license). 

A flurry of activity followed the District's decision, including a delegation from the Sechelt Indian Band, which asked Council to reconsider its decision.  Council agreed, rescinded the second and third readings of the Bylaw, and convened a second public hearing.

The second public hearing was more controversial than the first, with many people expressing concerns about the liquor store.  Ultimately, Council rejected the Bylaw.  After the vote, various Councillors made comments about the rezoning, with Councillor Thirkell stating that "although I am married to a native, I do not believe that the natives should be allowed to sell liquor". 

In mid-June 2007, the LCLB cancelled the liquor-primary license which Mr. Rodgers planned to use for the bistro and terminated the application for the liquor store license.

Was the vote "bad"?

Mr. Rodgers challenged the vote to reject the Bylaw.  Relying on Councillor Thirkell's statement (above), Mr. Rodgers argued that Council was motivated by an unlawful purpose - namely, limiting liquor store competition.  The District argued that there was no evidence to support Mr. Rodgers' argument.

Madam Justice Balance of the BC Supreme Court agreed with Mr. Rodgers that Council could not consider the desirability of the liquor store as part of the rezoning, even if members of the public commented on this point. 

However, Justice Balance found that, except for Councillor Thirkell's statement, there was no evidence to suggest that Council in fact considered this issue.  As for Councillor Thirkell's statement, while the Court found it to be "blatantly improper", it was made after the bylaw was defeated and – therefore – was not indicative of the reasons behind Council's decision.

Lessons learned

This case illustrates the deference accorded by Courts to elected officials. To establish that a municipal Councillor's vote is "bad", or that Council misused its power, there must be "a solid basis of proven facts" (to quote Justice Balance).

Also, this case serves as a helpful reminder that there may be a fine line between lawful and unlawful considerations at rezoning – especially when dealing with complex developments.  As a rule, the scope of rezoning is restricted to the site being rezoned, even if the project as a whole affects another site.  On this point, we refer you to the recent BC Court of Appeal decision in Community Association of New Yaletown v. Vancouver (City), 2015 BCCA 227 on which we previously reported here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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