Reasons for judgement:
The Residents Association Mount Pleasant v. Vancouver (City), 2015 BCSC 551
In two decisions, the British Columbia Supreme Court refused multiple efforts by a residents’ association to halt a multibuilding, 258-unit project now called the Independent at Main. The project, developed by Kornfeld clients Rize Alliance (Kingsway) Properties Ltd. and Rize-Ayalaland Limited Partnership, has since emerged as the heart of redevelopment of the Mount Pleasant neighbourhood along the Broadway corridor, only minutes from downtown.
After years of study and extensive public hearings resulting in changes to the official community plan and local zoning, the residents’ association, dissatisfied with the proposed height and other elements of the project, petitioned to quash the development permit issued by the City, claiming that the City was obliged to conduct a further public hearing based on the “form of development”. The term refers to the general shape and form of a structure and its siting on the lot where it is to be constructed. The residents further submitted that the City had unlawfully delegated to the Development Permit Board its authority to approve the form of development. After hearing submissions from Kornfeld’s Dan Parlow and Neil Kornfeld, Q.C., the court concluded that the petitioners’ complaints could not be the basis for this court to quash the decision.
The residents’ association brought a second petition seeking judicial review of the rezoning bylaw allowing for the redevelopment, alleging that the City had failed to adhere to procedural fairness and accountability in the process leading up to the rezoning bylaw’s enactment, including the public hearing process. Kornfeld’s Dan Parlow then successfully applied both to have our clients added as parties to the proceedings, and to have the claims struck as an abuse of process. The Court held that those affected by the City’s decisions, have a right to come to court to review city decisions and to hold the City to account, but when they do so they must bring the entirety of their case and put their best case forward. The court held that developers are also entitled to a fair procedure, one that does not require them to be put through the expense and delay of repeated proceedings arising out of the same facts. Accordingly, based on either action estoppel or abuse of process, the petition was dismissed.