In consideration of BCLI’s ongoing work as part of the Renovate the Public Hearing Project, this legislative comment will outline changes to the public hearings process introduced by the Act and consider the reasons for amendment and the consequences for public engagement going forward.

What Amendments Does the Act Make to Public Hearings?

Section 464 of the Local Government Act requires municipalities and regional districts throughout BC to hold a public hearing before they adopt an official community plan (OCP) bylaw or a zoning bylaw. The statute is clear that the purpose of holding a public hearing in these circumstances is to “[allow] the public to make representations to the local government respecting matters contained in the proposed bylaw.” Prior to the introduction of Bill 44, the Local Government Act provided one exception to this rule, allowing local governments the option to hold a public hearing on a proposed zoning bylaw if the bylaw was consistent with the area’s official community plan. Local governments were required to provide notice under section 467 when they chose to waive a public hearing according to this provision.

Changes introduced by the Housing Statutes (Residential Development) Amendment Act now limit the discretion that was previously afforded to local governments. Amendments to section 464 now state that a local government cannot hold a public hearing in two specified circumstances: first, where a proposed zoning bylaw permits residential development that is consistent with an existing OCP, and second, where a proposed bylaw relates to small-scale multi-family housing developments. Bylaws that permit the development of mixed-use projects are expressly caught by the first of these exceptions, so long as the residential portion of the development accounts for 50% or more of the total development area. Other amendments now require local governments to give notice when they are prohibited from holding a public hearing. The content of the notice to be given is the same as that required where a local government elects to not hold a public hearing.

Similar amendments have also been made to the Vancouver Charter. Like section 464 of the Local Government Act, section 566 of the Vancouver Charter requires Vancouver City Council to hold a public hearing before it “make[s], amend[s], or repeal[s]” a zoning bylaw. However, unlike the Local Government Act, the Charter does not include a provision that offers City Council the choice to waive a public hearing. Rather than limit any existing discretion, then, amendments introduced by the Housing Statutes (Residential Development) Amendment Act instead create a new exception where public hearings cannot be held. Specifically, amendments to section 566 now state that Council “must not” hold a public hearing on a zoning bylaw that relates to the development of small-scale multi-family housing. A framework for such zoning has been expressly set out in the addition of sections 565.03-565.09 to the Charter. As with the Local Government Act, Council is also required to give notice when they are prohibited from holding a public hearing.

What is the Reasoning Behind These Changes?

The Provincial Government introduced Bill 44 to streamline residential development and support the delivery of more homes, all in an effort to combat the housing crisis in BC. It is expected that these amendments to the public hearings process will aid in that goal. As the Minister of Housing, Ravi Kahlon, explained when introducing the bill for second reading on 7 November 2023, “public hearings can slow down getting approvals for new homes, delaying construction and adding costs to housing. These delays often result in fewer units being built or in developers making the units more expensive, to offset the added costs.” By barring local governments from holding public hearings on zoning bylaws that conform to an existing OCP, the Provincial Government seeks to eliminate redundant processes and increase efficiency in residential development.

What Are the Implications for Public Engagement?

Changes introduced by the Housing Statutes (Residential Development) Amendment Act do not seek to deny public engagement opportunities. Although local governments are now prevented from holding public hearings in prescribed circumstances, a public hearing remains mandatory where a local government seeks to adopt an OCP or a zoning bylaw that does not conform to an existing OCP (including where an OCP is not in place). In Vancouver, meanwhile, public hearings will remain mandatory for all zoning bylaws that do not concern small-scale multi-family housing.

Alternative forms of public engagement also remain available in those cases where public hearings cannot be held. The Local Government Act, for instance, still requires local governments to provide opportunities for consultation in the development of an OCP. This means that public engagement is not lost where local governments are precluded from holding public hearings. Rather, public engagement will take place earlier in the land use development process. And although other processes for public engagement are not mandated by legislation, they may well take on increased significance as the new framework comes into effect. In cases where public hearings cannot be held, the requirement for local governments to give notice will also ensure that residents remain informed of the developments taking place in their communities as projects proceed forward.

Even in the face of these statutory reforms, public hearings remain an important tool for public engagement and will continue to occur. There is still room, therefore, for discussion of the public hearing’s place in land use planning, and of public engagement more broadly. This is something that BCLI will be exploring further in its upcoming Renovate the Public Hearing Project consultation paper, due for release next week.

The post New BC Housing Legislation Brings Changes to the Public Hearings Process 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.