Arguments against public hearings: The current law fails to enhance democratic decision-making 

Critics of the current law often argue that it gives a greater say to a relatively small class of people, who often may not have views that are aligned with the opinions and needs of the broader community. This argument was featured in a recent report (PDF) on British Columbia’s housing crisis, which was critical of the current law on public hearings. 

“We believe that democratic processes are important,” the authors of the report said, “but that overreliance on public hearings to make land use decisions tends to favour certain voices over others.” Further, the authors noted that “those who support or stand to benefit from new housing supply often do not attend public hearings to voice their views and priorities,” while “the citizens most motivated and available to participate in the process generally oppose the development plans.” This disparity leads to a system in which “[s]uch proceedings contribute to a land use planning system that prevents new housing supply in two ways: first, by restricting or impeding growth as a consequence of lengthy, uncertain and costly processes; and second, by allowing anti-development interests to apply disproportionate political pressure on decision makers.” 

This line of criticism also appears prominently in many academic discussions of public hearings. As one law professor has concluded, “[l]and use law is structured to provide the most voice—and therefore the most power—to a small group of stakeholders: those who live nearest to a proposed development and bear the biggest potential burdens. Land use law, by design, activates a project’s fiercest opponents.” This commentator also cited “a study of public participation in the land use process,” which “showed, quantitatively, that those who speak at zoning hearings overwhelmingly live within a block or two of the proposed development and oppose it (speakers are also disproportionately white, male, and likely to own a home).” As another commentator has put it, “[t]he holding of a public hearing by itself will not attract the unorganized and the uninvolved”—even if their views may be in the majority. 

For more information on this topic—or to see the citations for the quoted material—read the Study Paper on Public Hearings: An Examination of Public Participation in the Adoption of Local Bylaws on Land Use and Planning. 

The post A Closer Look at the Study Paper on Public Hearings: Cons of Public Hearings  first appeared on British Columbia Law Institute.

Purposes: To provide a forum at which all aspects of the bylaw might be reviewed 

An early case on the duty to disclose documents in advance of a public hearing contained an influential statement of the legislation’s purpose. “In my view,” the court said, “the purpose of the Legislature in enacting s. 720 [now section 464 of the Local Government Act] was to provide a forum at which all aspects of the by-law might be reviewed so that members of the public, having become aware of the by-law’s purpose and effect, would be in a position to make representations to council of the manner and extent it affected property owned by them.” 

This passage has been quoted approvingly in a stream of subsequent BC court cases. The use of the word forum is telling, as it imports classical democratic ideas about the public hearing serving as “a meeting or medium for an exchange of ideas.” 

Broadening the scope of inquiry further, this idea of the public hearing as a forum for public participation in local-government decision-making has appeared in academic commentary on the law. 

For example, a law professor has characterized public hearings as “[a] device to achieve citizen participation.” Legislation requiring public hearings can be seen as supporting “the vitality of the democratic process” by advancing “the premise that decision-making should be kept responsive to the needs of widely representative groups and that arbitrary action of central planners in disregard of the legitimate needs and desires of the people they serve should be avoided.” In a similar vein, an urban-planning textbook has noted that public hearings can be “viewed as revitalizing democratic practice in general by giving opportunities for local self-government to the ‘average’ citizen.” 

Commentators have also speculated on the downstream benefits of providing such a forum for democratic public participation. Public hearings can be viewed as fulfilling a function to “help to maintain the stability of society” and guard “the public interest” by giving local residents a sense that they are involved in the decision-making process and “ensur[ing] that bureaucracies are responsive to the public. 

For more information on this topic—or to see the citations for the quoted material—read the Study Paper on Public Hearings: An Examination of Public Participation in the Adoption of Local Bylaws on Land Use and Planning. 

The post A Closer Look at the Study Paper on Public Hearings: Purposes of Public Hearings  first appeared on British Columbia Law Institute.

Town Planning Act (1925) 

In the early 20th century British Columbia’s local governments had rudimentary land use-planning powers that were “tightly worded to equip local governments to deal only with particular land use issues,” which meant that the governing provincial “legislation thereby reflected a prevailing view that local governments should be empowered to interfere with private land use decisions only sparingly.” But in 1925, BC changed course by enacting “[t]he first comprehensive delegation of legislative power to regulate land use in B.C.” 

This legislation, called the Town Planning Act, has been described as “provid[ing] the essential elements of the planning and land use regulation toolkit that exists to this day.” The tools in that toolkit were: “the official comprehensive plan, the zoning bylaw with a mandatory public hearing, the planning commission and the board of variance, protection for existing uses from new regulations, the withholding of building permits during preparation of a zoning bylaw, and a ‘no compensation’ rule for property diminished in value by a zoning bylaw.” 

The preamble to the act cited “large municipal expenditures [that] have become necessary owing to the fortuitous development of urban centres” as a reason for the act’s goal of “mak[ing] provision whereby the natural growth of cities and towns may be planned in a systematic and orderly way.” Planning for growth was then described as the means to secure a number of benefits, including reducing traffic congestion, encouraging economic development, preserving “the amenity of residential districts,” and providing “adequate areas . . . for protecting the health of and providing recreation for the public.” 

While the Town Planning Act heralded a major shift in policy direction, it’s possible to overstate the nature of this change. If the past is represented by a policy of deference to the property rights of landowners, then the Town Planning Act wasn’t a clean break with this policy. Its provisions instead appear to be more concerned with trying to strike a balance between the new powers delegated to local governments and the desire to continue to protect those property rights. 

This point can be seen from the list of tools in the “land use regulation toolkit” provided by the act, as described above. Some of these tools are clearly newly delegated powers for local governments (such as providing for the development of an “official comprehensive plan”). Others are more of check on the exercise of those powers (e.g., “protection for existing uses from new regulations”). 

What was described as “a mandatory public hearing” falls into this latter camp. The section creating the requirement provided that a municipal “[c]ouncil shall not determine the boundaries of any district nor impose any regulations,” by “passing a zoning by-law,” “until after all persons who might be affected by the proposed by-law shall be afforded an opportunity to be heard on the matters covered therein before the Council.” A parallel provision applying to amending or repealing a zoning bylaw is clearer on this point, describing the public hearing as a council meeting in which “all persons whose property would be affected by such amendment or repeal may appear in person or by attorney or by petition” (emphasis added). 

Even though the legislation at this point didn’t use the words public hearing, the hint of this idea was present. The notice requirement that went hand-in-hand with the hearing requirement called for broad notice to the public at large, through advertising “in not less than two consecutive issues of a newspaper published or circulating in the municipality.” This approach meant that notice of the public hearing wouldn’t just be given to neighbouring landowners. Instead, word of the hearing would be spread widely throughout the community. 

For more information on this topic—or to see the citations for the quoted material—read the Study Paper on Public Hearings: An Examination of Public Participation in the Adoption of Local Bylaws on Land Use and Planning. 

The post A Closer Look at the Study Paper on Public Hearings: Historical Legislation  first appeared on British Columbia Law Institute.