A group of residents in Vancouver’s Kitsilano neighbourhood has won a court battle against a proposed social-housing project after the B.C. Court of Appeal ruled that the provincial government had violated their rights by trying to force it through with legislation.
The appeal court ruling won’t halt construction of the 129-unit supportive-housing building intended for residents with mental-health issues, including drug addictions. But it does strike down the hastily crafted provincial law aimed at prohibiting a court challenge of the city’s approval for the development.
The residents, who have mounted a years-long opposition to the Arbutus Street project, maintain that the building is a massive, challenging development that is too big and in the wrong place, located directly across the street from an elementary school.
The group is prepared to restart its request for a judicial review once its lawyer has gone over the ruling.
“We’re prepared to carry on,” said Karen Finnan, a spokesperson for the Kitsilano Coalition for Children & Family Safety Society. “Social housing is fine there but it has to be successful for the community and for the people who live there.”
The decision is likely to have effects both for this project and for others the province has proposed, such as one in Richmond that the NDP government “paused” just before the recent provincial election as community opposition was starting to build.
The B.C. Court of Appeal decision, issued Dec. 24, said the provincial law, passed in the spring of 2023 at the request of the City of Vancouver, was unconstitutional. It said that the government had exceeded its authority by passing legislation that prohibited anyone from challenging council’s approval.
The ruling from the three Court of Appeal judges said that the province would have been on acceptable legal ground if it had taken away the city’s rezoning power for that site.
But the province’s law didn’t do that. Instead, it prohibited anyone from suing to try to overturn the city approval on the grounds that the city didn’t run a valid public hearing, as the coalition claimed. The judges stated that it is the court’s job, not the government’s, to decide whether a public hearing is valid.
The law “interferes with the Court’s adjudicative function by commandeering its power to grant orders entirely,” Court of Appeal Justice Mary Newbury wrote.
If the coalition proceeds with its effort to get a judicial review, it will delay any start of the project’s construction – something the legislation was designed to avoid. The project has not yet received any of the necessary city building permits.
“It stops the project for now,” said lawyer Peter Gall, who mounted the coalition’s successful Court of Appeal suit. He called the decision very significant constitutionally.
“We have separation of powers between the courts and the legislature. The legislature makes the law, the courts apply the law. Here, the legislature didn’t change the law. They took over the role of the courts.”
The project, near the new SkyTrain station currently under construction, generated huge opposition from a group of local residents almost as soon as it was proposed.
At 13 storeys and with 129 studio units, the proposed Arbutus project is the largest and most challenging social-housing development ever seen in the neighbourhood, known in the 1960s and 70s for its hippie vibe. (In response to community opposition, BC Housing eventually changed the mix to 50 per cent for people needing supportive housing and 50 per cent for low-income people needing inexpensive housing.)
Kitsilano saw a lot of social housing built in those early years, more than many other west-side neighbourhoods, but it was typically co-ops or seniors’ housing, not a supportive-housing tower.
The site is across the street from a private Catholic elementary school, and close to a women’s shelter and blocks of early 20th-century houses.
When the public hearing for the project was held in June and July of 2022, about 300 people showed up to speak. Many were opposed but some residents also spoke in support of it.
The coalition filed a lawsuit in October, 2022, saying the city’s approval should be overturned because the public hearing was invalid for multiple reasons. These included the refusal to give residents a copy of the memorandum of understanding between the city and BC Housing outlining operation of the project.
The suit also claimed the city breached the rules of procedural fairness.
The City of Vancouver, the province and BC Housing all said they are reviewing the decision.
“We’ve spent the last few years working with local governments to speed up the construction of new homes and supporting sustainable growth. And we’re going to continue building our reputation as leaders in tackling the housing crisis and delivering more homes people can afford,” said Housing Minister Ravi Kahlon.