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IN THE SUPREME COURT OF BRITISH COLUMBIA Citation:

Pettersen v. Prince George (City), 2014 BCSC 792 Date: 20140507 Docket: 1342926 Registry: Prince George

Between: Tore Pettersen Petitioner And City of Prince George Respondent

Before: The Honourable Mr. Justice R. S. Tindale

Reasons for Judgment In Chambers Counsel for the petitioner:

R.J. Stewart Q.C.

Counsel for the respondent:

R. Young Q.C.

Place and Date of Hearing:

Prince George, B.C. October 1 and 2, 2013

Place and Date of Judgment:

Prince George, B.C. May 7, 2014

INTRODUCTION [1]

The petitioner resides on Purdue Road East in an area of the City of Prince George known as the Haldi Road area. The petitioner is concerned about a proposal to build a Therapeutic

Community Care Facility at 5877 Leslie Road which is also in the Haldi Road area. [2]

The petitioner seeks a declaration that the City of Prince George Zoning Bylaw No. 7850 (30 April 2007), Amendment Bylaw No. 8475, (2012) (“Bylaw 8475”) is invalid and that it be

quashed on the ground that it is inconsistent with the Official Community Plan of the City of Prince George. [3]

The petitioner also seeks a declaration that the City of Prince George Official Community Plan Bylaw No. 8383, (2011), Amendment Bylaw No. 8474, (2012) (“Bylaw 8474”) is invalid and

that it be quashed as its adoption makes the City of Prince George Official Community Plan Bylaw No. 8383, (2011) (the “OCP”) internally inconsistent with respect to policies affecting land located in Rural B areas of the City of Prince George and therefore incapable of consistent application. [4]

The petitioner seeks other declarations relating to Bylaw 8474, Bylaw 8475 and the OCP. The petitioner also seeks costs of this hearing.

BACKGROUND [5]

Until approximately 2002, the property at 5877 Leslie Road was a public school. It was then closed and sold to a private individual who used it as a single-family dwelling until the property

was again sold in 2011 to a company, 0911408 B.C. Ltd. [6]

On September 17, 2012 an application was made on behalf of 0911408 B.C. Ltd. to rezone 5877 Leslie Road to allow for a recovery center for women suffering from addiction issues. The

application was made by L&M Engineering Limited. The initial proposal was to create a new site specific zone – Z16: Therapeutic Community. [7]

The proposed Therapeutic Community Care Facility would have 30 residents and 10 support staff. The facility would be governed by a Board of Directors and managed by an Executive

Director. [8]

The City of Prince George Planning and Development Department felt a site- specific amendment to the existing AR2 Rural Residential zone would be more appropriate than creating a

new “Z” zone. [9]

On December 5, 2012 a document entitled “Staff Report to Council” was provided to the Mayor and Council from the Planning and Development Department. This document made

recommendations with regard to proposed amendments to the OCP as well as proposed amendments to the City of Prince George Zoning Bylaw No. 7850, (30 April 2007) (“Bylaw 7850”). [10]

The proposed amendments to the OCP were as follows:

(i)

It was recommended that the preamble to section 7.5 be amended by replacing the words “Non-Market Temporary” with the words “Temporary Housing for Vulnerable Populations”.

(ii)

It was recommended that the existing Policy 7.5.9 be replaced with a new Policy 7.5.9 that would read “Permit affordable housing and/or special needs housing, at densities council considers appropriate, in all the residential areas, including rural areas”.

(iii)

It was recommended that the description of the proposed use on the subject property be reflected in a new Policy 7.5.9a. The purpose of this new policy was to ensure consistency of the rezoning application with the OCP. The expanded definition applied only to the subject property:

Policy 7.5.9a. “Without limiting Policy 7.5.9, permit a Therapeutic Community Care Facility on Lot C, District Lot 1597, Cariboo District, Plan 20539 for the supportive residential care of up to 30 persons who receive care or support primarily related to substance dependence, mental health issues or both”. (iv)

It was further recommended to replace the existing definition of “Special Needs Housing” with the following definition:

Housing for persons with special needs, including supportive work transitional housing in which care, support and/ or training is provided to occupiers of the facility in which the housing is provided. This may also include, but is not limited to, seniors housing and accessible housing. [11]

The Planning Department noted that the Leslie Road property was zoned AR2: Rural Residential. The purpose of the AR2 zone is “to foster a rural lifestyle on properties larger than 2.0 ha.

The zone also provides for complementary residential related uses that are compatible with the rural character of the area.” With that in mind the proposed amendment was to add the following definition to Bylaw 7850:

Community Care Facility, Therapeutic: The supportive residential care of up to 30 persons, where residents are not related by blood or marriage (excluding children). Therapeutic care is provided to people recovering from a limited range of issues including alcoholism and substance abuse in addition to anxiety, codependency, avoidance, as well as recovery from grief and loss. Residents have access to education programs and


vocational skills training. [12]

The further proposed amendment to Bylaw 7850 was to amend Section 9.4.2 (Principal Uses) by adding the wording “Community Care Facility, Therapeutic on Lot C, District Lot 1597,

Cariboo District, Plan 20539”. [13]

The proposed amendments to the OCP are incorporated in Bylaw 8474. The proposed amendments to Bylaw 7850 are incorporated in Bylaw 8475. Both Bylaw 8474 and Bylaw 8475

were adopted by City Council on April 22, 2013. [14]

The petitioner filed his petition on May 9, 2013 and his Amended Petition on September 23, 2013. The respondent filed its Amended Response to Petition on July 23, 2013

[15]

There was a prior application to rezone the land to accommodate the same Therapeutic Community Care Facility. The bylaw relating to that application was quashed by this court. That

decision is indexed as Sevin v. Prince George (City), 2012 BCSC 1236. [16]

It should be noted that section 9.4.5 of Bylaw 7850 was not amended. In particular section 9.4.5 (1) reads as follows:

The maximum residential density is one principal dwelling and one secondary suite per lot. [17]

The following policies of the OCP are relevant:

Rural – Policy 8.1.17

This area functions as a transition between rural resource lands and urban areas, providing for rural residential and more active small–scale agriculture. It recognizes and affirms existing rural areas and activities. The City should support rural development as more fully described in the Land Use Section 8.3 F of this bylaw. General – Policy 8.3.6

The City supports the redevelopment and/or adaptive re-use of surplus school sites. Uses compatible with surrounding uses, providing community services, or enabling later conversion back to school use are preferred. A sustainability assessment of redevelopment options is desirable, incorporating consideration of potential long-term need for flexibility and adaptation. Rural and Rural Resources – Policy 8.3.109

Through rural designations and policies, the City should provide for development that addresses a desire for a rural lifestyle. Encourage development that supports rural uses such as small farms, contracting, forestry and similar activities that make good use of the land and rural context. Provide for very limited development, including low-intensity residential use, hobby farms and similar uses.

POSITION OF THE PETITIONER [18]

The petitioner argues that Bylaw 8475 is inconsistent with the purpose of the AR2 zoning area if the Therapeutic Community Care Facility does not foster a rural residential lifestyle or is

not compatible with the rural character of the area. [19]

The petitioner further argues that having up to 30 people in residential care is not consistent with the AR2 zone. That is to say that a rural residential lifestyle based on single detached

housing cannot co-exist with a facility holding up to 30 residents. [20]

The petitioner argues that since the Therapeutic Community Care Facility is site-specific to a particular parcel of land, Bylaw 8475 has effectively created a new zoning boundary which

has not been named. He says that is contrary to section 903 of the Local Government Act, R.S.B.C. 1996, c. 323 (“LGA”). Section 903 of the LGA reads in part as follows:

903 (1) A local government may, by bylaw, do one or more of the following: (a)

divide the whole or part of the municipality or regional district into zones, name each zone and establish the boundaries of the zones;

... (c)

regulate within a zone (i)

the use of land, buildings and other structures,

… [21]

The petitioner argues that the result of Bylaw 8475 is an illegal use of the land under the AR2 zoning district. Since the use is illegal it is thereby unreasonable and invalid.

[22]

The petitioner argues that the new use as provided for in Bylaw 8475 is not consistent with the OCP because the land located at 5877 Leslie Road is in an area designated by the OCP as

Rural B. [23]

Section 884 (2) of the LGA says that all bylaws adopted by a municipal council must be consistent with the OCP. In particular the petitioner states that Bylaw 8475 is inconsistent with OCP

policies 8.1.17, 8.3 generally, and 8.3.109. The petitioner questions how a facility that holds up to 30 people can be consistent with low–intensity residential use. [24]

Section 884 (2) of the LGA reads as follows:

All bylaws enacted or works undertaken by a council, board or greater board, or by the trustees of an improvement district, after the adoption of (a)

an official community plan, or

(b)

an official community plan under section 711 of the Municipal Act, R.S.B.C. 1979, c. 290, or an official settlement plan under section 809 of that Act before the repeal of those sections became effective,

must be consistent with the relevant plan. [25]

The petitioner reminds the court that Bylaw 8475 did not amend section 9.4.5 (1) of Bylaw 7850 which allows for a maximum residential density of one principal dwelling and one

secondary suite per lot. The purpose of the AR2 zone is “to foster a rural lifestyle on properties larger than 2.0 ha. The zone also provides for complementary residential related uses that are compatible with the rural character of the area”. The petitioner notes that a rural residential lifestyle is not defined in the zoning bylaw but there is a reference to “single detached or manufactured housing”. The petitioner argues that a rural residential lifestyle is a lifestyle associated with residences and that there are no references in section 9.4.2 (which deals with uses of the AR2 zone) to institutional users. [26]

The petitioner argues that the changes proposed by Bylaw 8474 would introduce into the Rural B area a use which is not compatible with established uses since institutional use is not a

rural residential use. The petitioner argues that the established uses in the Haldi Road area are rural residential. [27]

The petitioner further argues that patients in a treatment facility are not residential users. The petitioner goes on to say that the new policy 7.5.9a is not a policy but rather a description of an

institutional use on a specific piece of land. The petitioner points to s. 875 (1) of theLGA which reads as follows:

An official community plan is a statement of objectives and policies to guide decisions on planning and land use management, within the area covered by the plan, respecting the purposes of local government. [28]

The petitioner argues that the OCP cannot be a zoning bylaw pursuant to section 875 (1) of the LGA.


[29]

The petitioner also argues that if Council thought that the density requirements associated with the Therapeutic Community Care Facility were appropriate in the AR2 zone they should

have specifically said as much. [30]

The petitioner says that Bylaw 8474 creates internal inconsistencies in the OCP. The existing rural lifestyle policy statements are inconsistent with the location and proposed land use of

the facility. [31]

Creating internal policy inconsistencies means that Bylaw 8474 is not valid because it is not capable of being consistently applied.

[32]

The petitioner submits that it is self-evident that the institutional use of the Therapeutic Community Care Facility is not consistent with a rural residential lifestyle option. The petitioner relies

on the decision in Residents and Ratepayers of Central Saanich Society v. Saanich (District), 2011 BCCA 484 at para 39, leave to appeal ref’d [2012] S.C.C.A. No. 33 which states:

[39] As we have also seen, the chambers judge in the case at bar found it “difficult to understand” what distinction might exist between a bylaw that is “in absolute and direct collision” with an OCP, and one that is not “consistent with” the OCP. I share this reaction, and question the Court’s suggestion in McLean Lake [Residents’ Assn. v. Whitehorse (City), 2009 YKCA 11] that the Rogers [v. Saanich (District), [1983] B.C.J. No. 1744 (S.C.)] terminology implies that a council may act in a manner that is incompatible with an OCP as long as what it does is “not too incompatible”. As I read Rogers, the Court was simply using the “absolute and direct collision” terminology as a synonym for incompatibility and made no suggestion that the municipal council could act in a manner incompatible with an OCP. The point does, however, elucidate the fact that at least in this context, consistency or inconsistency with an OCP is usually likely to involve consideration of “guidelines” and expressions of policy rather than restrictions or mandatory rules. Thus the chambers judge’s observation at para. 41 of his reasons that the question of inconsistency is a “matter of interpretation” and that it is not possible to promote each of the objectives stated in an OCP equally in a single instance. [33]

The petitioner seeks special costs in his petition.

POSITION OF THE RESPONDENT [34]

The respondent agrees that all bylaws adopted by municipal council must be consistent with the OCP. Indeed this was the issue in Sevin, where the court quashed the amended zoning

bylaw because it was not consistent with the OCP. At that time, the OCP did not specifically address the acceptability of special needs and therapeutic institutional housing in rural areas. [35]

The respondent argues that the OCP is a guide to council’s future decisions: s. 875 (1) of the LGA.

[36]

The respondent further argues that the OCP is not a regulatory bylaw and that it does not regulate land use or any person’s right to use or develop land.

[37]

The respondent says that after the decision in Sevin, the City of Prince George amended its OCP to make it clear that in the rural areas special needs and therapeutic housing was a use of

land that would be permitted by subsequent zoning bylaws. [38]

The respondent argued that deference should be given by the court to the decisions made by an elected Council regarding the broad policy objectives of an OCP. The respondent says

that the only limitation on an elected council would be that their interpretation must be one that the OCP could rationally bear. [39]

The respondent argues that the amendments to the OCP in Bylaw 8474 were specifically designed to permit special needs therapeutic housing use in a rural area.

[40]

The respondent argues that an OCP can have both policies and objectives and that it is acceptable for one of these objectives to be the identification of a former vacant school as a future

site for a special-needs therapeutic housing facility. [41]

The respondent submits that it is common that an OCP may permit specific uses on identified parcels in a particular zone. The respondent further argues that the creation of a specific

objective in an OCP does not render the OCP a zoning bylaw. This is because an OCP does not have the legal effect of limiting the land-use rights of land owners. OCP’s can contain specific provisions. The respondent relies on para. 40 of the decision in Residents and Ratepayers of Central Saanich which reads as follows:

[40] This is an almost inevitable result of the fact that an OCP is intended to capture a long-term “vision” and provide “guidance” to municipal councils. Central Saanich’s OCP is, like most OCPs, not couched in the terminology of a statute or bylaw; it contains a “long-term vision” or “philosophy” and suggests values that should “provide the foundation for the objectives and values” it describes. It cannot and should not be construed with the scrutiny accorded to a statute. As the cases cited above at para. 37 illustrate, British Columbia courts have consistently recognized this principle in approaching bylaw challenges under s. 884 and its predecessors. Where on the other hand the OCP does contain a specific rule, a bylaw that contravenes it will likely be struck down, as occurred inWestern ARP Services [v. Capital (Regional District), [1986] B.C.J. No. 1405 (C.A.)]. In that case, an official settlement plan provided for a minimum lot size of 12 hectares but the bylaw in question increased it to 100 hectares. (Para. 38.) The Court found the bylaw to be “clearly in conflict” with the plan. [42]

Further in that regard the respondent relies on the decision of this court in Rogers v. Saanich (District), [1983] B.C.J. No. 1744 at paras. 44-45 (S.C.), which read as follows:

44 There has already been some apposite judicial comment on the interpretation of community planning documents. In Capozzi Enterprises Ltd. v. Regional District of Central Okanagan (1978), 94 D.L.R. (3d) 80 Gould J. considered the legislation which I have quoted previously in relation to an argument as to whether the Official Regional Plan descended to become in fact a zoning bylaw in disguise: the purported Regional Plan established a minimum lot size of 40 acres and Gould J. held that the Regional Plan could go some way in establishing constraints and detailing permitted uses along with specification but that that particular plant ought not to be considered in the exercise of zoning power. 45

I think the headnote accurately sums up the case: “An official, or regional plan, has no legal effect upon a private landowner. Zoning by-laws do have a legal effect upon a private landowner. A regional or official plan is implemented by zoning by-laws passed later by an appropriate authority. Thus, where a plan is enacted that is general in nature and has prospective application which will affect future developments rather than present rights and privileges, the Court will not find that the plan is a zoning by-law as opposed to an official plan even though the official plan goes some way in establishing constraints and detailed permitted uses...

[43]

The respondent argues that Bylaw 8475 does not create an unnamed zone contrary to section 903 of the LGA. The respondent argues that Bylaw 8475 creates a use described as

Community Care Facility, Therapeutic, and permits that use in the AR2 zone limited to one specific location in the zone. [44]

Section 903 (3) of the LGA reads as follows:

The regulations under subsection (1) may be different for one or more of the following, as specified in the bylaw: … (c) different locations within a zone; [45]

The respondent argues it is common that in zoning bylaws specific uses may only be allowed on identified pieces of land.

[46]

The respondent argues that Council’s legislative characterization of “special-needs therapeutic housing” as housing rather than “institutional” should be subject to deference. The validity

should only be challenged where it is so irrational that no reasonable council could have arrived at such a conclusion. [47]

The respondent says that there is no statutory requirement that an OCP be internally consistent. Subsequent bylaws have to be consistent with the OCP.

[48]

The respondent argues it is for the elected council to determine and weigh the benefits of policies which would include whether or not a rural lifestyle can also include special-needs

housing. Council is allowed to alter or amend its initial vision of what constitutes “rural”.


[49]

The respondent notes that the December 5, 2012 report from the Planning Department made the purpose of Bylaw 8474 and Bylaw 8475 clear.

[50]

The respondent disagrees that in permitting a Therapeutic Community Care Facility, Bylaw 8475 creates an inconsistency between this new use and other mandatory use and density

regulations contained in the AR2 zone. The respondent says this because the Therapeutic Community Care Facility incorporates its own density as it is defined as “A facility for the supportive residential care of up to 30 persons who receive care or support primarily related to substance dependence, mental health issues or both”. The respondent also says that section 9.4.5 (1) of the AR2 zone is not applicable to many of the principal uses permitted in the zone such as greenhouses, plant nurseries and “community care facility, minor”. Section 9.4.5 (1) does not establish a density requirement for these uses. [51]

Finally, the respondent argues that in the event that the petitioner is successful he should not be awarded special costs. The respondent argues that the evidence discloses that the

petitioner has a personal lifestyle interest and a pecuniary interest in the outcome of this litigation. The factors for special costs are set out in Schlenker v. Torgrimson, 2013 BCCA 395. The respondent also says the concept of OCPs and subsequent bylaws being consistent with one another has been thoroughly litigated in British Columbia and the legal principles are wellestablished in Sevin.

DISCUSSION [52]

The appropriate standard of review in this case is one of reasonableness: Residents and Ratepayers of Central Saanich at paras. 44-51.

[53]

In the decision of Catalyst Paper Corp v. North Cowichan (District), 2012 SCC 2, in discussing the standard of review of reasonableness at para. 13 the Court stated the following:

... If the applicable standard of review is reasonableness, the reviewing court requires that the decision be reasonable, having regard to the processes followed and whether the outcome falls within a reasonable range of alternatives in light of the legislative scheme and contextual factors relevant to the exercise of the power (Dunsmuir, at para. 47). [54]

The court went on to say the following at para. 24:

It is thus clear that courts reviewing bylaws for reasonableness must approach the task against the backdrop of the wide variety of factors that elected municipal councillors may legitimately consider in enacting bylaws. The applicable test is this: only if the bylaw is one no reasonable body informed by these factors could have taken will the bylaw be set aside. The fact that wide deference is owed to municipal councils does not mean that they have carte blanche. [55]

The statutory regime here is found in the LGA, in particular s. 884 (2).

[56]

Prior to the amendments made by Bylaw 8475, the principal and secondary uses for land in the AR2 Rural Residential Zone were:

9.4.2 Principal Uses § agriculture, general § agriculture, intensive impact only in the Agricultural Land Reserve § community care facility, minor § greenhouse & plant nursery § forestry § housing, manufactured § housing, single detached

9.4.3 Secondary Uses § agri-tourist accommodation § auction, major § bed & breakfast § equestrian centre, minor § home business 1 § home business 2 § home business 3 only in HBO § secondary suite

Zoning Bylaw 7850 Definitions [57]

There are a number of definitions in Zoning Bylaw 7850 that are useful in this analysis which were not amended by Bylaw 8475. These are:

Density: as defined in Section 872 of the Local Government Act, including the number of units on a site measured in units/area or floor area ratio, as the case may be. Dwelling: accommodation providing sleeping, washrooms, and a kitchen intended for domestic use, and used or intended to be used permanently or semi-permanently for a household. A dwelling does not include more than one room that, due to its design, plumbing, equipment, and furnishings, may be used as a kitchen (this does not preclude a kitchen in a secondary suite). This use does not include a camper vehicle (except in accordance with Section 5.14 of the Bylaw) or a room in a hotel or motel. Dwelling, Principal: either a dwelling that occupies the entirety of a building or a larger gross floor area than another dwelling in the same building. Household: means a) a person; b) two or more persons related by blood, marriage, common law relationship, or adoption, together with not more than two persons unrelated to such persons; or c) a group of not more than 6 persons who are not related by blood, marriage, common law relationship or adoption; all living together in a dwelling, comprising a single housekeeping group and using cooking facilities shared in common. Unrelated persons may include owners, renters, tenants, boarders, paid domestic servants, or foster children. Housing, Single Detached: a building containing only 1 dwelling exclusively used for occupancy by 1 household, except where permitted by this Bylaw a secondary suite may be within a single detached home. This use includes manufactured homes that conform to the CSA A277 standards. Secondary Suite: an accessory, self-contained dwelling within a single detached house, exclusively used for occupancy by one household that complies with the requirements of this Bylaw.

[58]

Section 872 of the LGA defines density as:

"density" in relation to land, a parcel of land or an area, means (a)

the density of use of the land, parcel or area, or

(b)

the density of use of any buildings and other structures located on the land or parcel, or in the area;

DECISION [59]

Deference must be given to the decision of the City Council; however, they do not have an unfettered discretion.

[60]

In Sevin, the court quashed an amendment bylaw authorizing the same facility because it was inconsistent with the OCP. At that time, the OCP made no mention of Community Care

Facility, Therapeutic, in rural areas. [61]

The City, since that decision, amended the OCP to include, among other things, a policy for a Therapeutic Community Care Facility on a specific piece of land with a specific density.

[62]

In general an OCP creates a vision for future goals and objectives of a community. Section 877 of the LGA establishes the mandatory statements that an OCP must contain. Section 877

reads as follows:

(1) An official community plan must include statements and map designations for the area covered by the plan respecting the following:


(a) the approximate location, amount, type and density of residential development required to meet anticipated housing needs over a period of at least 5 years; (b) the approximate location, amount and type of present and proposed commercial, industrial, institutional, agricultural, recreational and public utility land uses; … (f) the approximate location and type of present and proposed public facilities, including schools, parks and waste treatment and disposal sites; (g) other matters that may, in respect of any plan, be required or authorized by the minister. (2) An official community plan must include housing policies of the local government respecting affordable housing, rental housing and special needs housing. [63]

I cannot accede to the petitioner’s argument that the adoption of a site-specific policy for the Therapeutic Community Care Facility is invalid because that would mean the OCP has

become a zoning bylaw. An OCP does not commit or authorize a municipality to proceed with any project that is specified in the plan: s. 884 (1) LGA. An OCP has a plethora of goals and objectives. An OCP does not have any legal effect on a private land owner. Zoning bylaws do have legal effect on private landowners: Rogers v. Saanich (District) at paras. 44-45. [64]

In this case the OCP was specifically amended to allow for a Therapeutic Community Care Facility. The OCP has not in fact become a zoning bylaw in disguise.

[65]

I also cannot accede to the petitioner’s argument that Bylaw 8475 has created an unnamed zone contrary to s. 903 of the LGA. Section 903 (3) of the LGA allows for a local government

bylaw to create different regulations for the regulation of the land use in different locations within a zone. [66]

The petitioner also argues that Bylaw 8474 is invalid because it creates internal inconsistencies within the OCP. I do not agree with this submission. There is no statutory requirement that

an OCP be internally consistent. The real question is whether or not a subsequent regulatory bylaw is consistent with the OCP. [67]

Also, an OCP must include housing policies for special needs housing: see s. 877 (2) LGA. In this particular case the proposed site for the Therapeutic Community Care Facility was once

a school. OCP policy 8.3.6 provides for city support in the redevelopment of such sites for, among other things, “providing community services”. [68]

An OCP is not meant to be a static document but rather is fluid and develops over time. Surely a municipal Council can revise and change its policies and visions to accommodate an ever

changing community. Certainly one of the objectives of Council could be to provide special needs housing in a rural area. It is up to Council to determine whether special needs housing fits in the rural setting. [69]

The petitioner submits that the zoning amendments in Bylaw 8475 are inconsistent with the AR2 zone because, in his submission, having up to 30 people in residential care is not

consistent with the regulatory framework of that zone. The petitioner argues that a rural residential lifestyle is a lifestyle based on residences. In particular, an institutional user, which he argues, the Community Care Facility Therapeutic is, cannot coexist with a rural residential lifestyle. The petitioner points to the fact that section 9.4.2 of the AR2 zone makes no reference to any institutional users and section 9.4.5 authorizes a maximum residential density of one principal dwelling and one secondary suite. [70]

There are other principal uses in the AR2 zone that section 9.4.5 is not applicable to, for example greenhouse and plant nursery. That section is silent with regard to the density or storeys

of the greenhouse and plant nursery. The “community care facility, minor” is another principle use in that zone which does not have an established density or storeys for use. [71]

I agree with the petitioners that the Therapeutic Community Care Facility is not a residence in the sense of having some permanency for its occupiers. It also does not fit into the definition

of principal dwelling or single detached housing. [72]

It may be that the Therapeutic Community Care Facility is more properly referred to as an institutional use. It is, however, an institutional use which, pursuant to Bylaw 8475, has its density

established. [73]

The concept of density can refer to the number of people in a particular building or the number of buildings on a particular site. In my view, it is not offensive to the AR2 zone bylaw that the

Therapeutic Community Care Facility is an institutional use and has its density established. In that regard the petitioner also took exception to policy 7.5.9 of the OCP because it allows counsel to determine the density of special needs housing. The petitioner says this makes the OCP incapable of consistent application and therefore the policy is invalid. I do not agree with that argument. Such a policy allows for the exercise of discretion by council in future planning. There may be cases where a decision is made in which the density allowed by council is later found to be inappropriate or inconsistent but that does not mean the policy itself is invalid. [74]

I cannot say that the establishment of this facility would not foster a rural lifestyle nor is it incompatible with the rural character of the area. It is proposed to be housed in a building that was

the former school in the area. The developmental impact on the area would be minimal. Also the need for special needs housing does not only exist in urban areas and, in my view, the proposed use of the facility has a residential nature which is not incompatible with the area. [75]

Therefore I do not agree that Bylaw 8475 is invalid because it allows a new principal use which is inconsistent with mandatory use and density regulations contained in the AR2 zone.

[76]

The ultimate question is whether or not Bylaw 8475 is inconsistent with the OCP as amended by Bylaw 8474. The problem that the court found in Sevin with the OCP not containing any

policies relating to a Therapeutic Community Care Facility in a rural area has been rectified by these amendments. Bylaw 8475 mirrors in many ways the language of Bylaw 8474. [77]

The establishment of a Therapeutic Community Care Facility as a principal use with a specified density in the AR2 zone is consistent with the OCP objective of providing special needs

housing in rural areas. It is also, in my view, consistent with policy 8.3.6 in relation to school properties and providing community services. [78]

The petitioner also argues that Bylaw 8475 is inconsistent with the OCP and specifically with policy 8.3.109 of the OCP. He says the development of a Therapeutic Community Care Facility

is inconsistent with that policy because it is not limiting development or providing for low intensity residential use. [79]

I note that low intensity residential use is not defined in the OCP. In any event, each policy in the OCP is an objective or goal of the Council. As discussed in Residents and Ratepayers of

Central Saanich “it is not possible to promote each of the objectives stated in an OCP equally in a single instance” (para. 39). The proposed Therapeutic Community Care Facility is to be located in an existing building that has been used as both a residence and a school. It provides a community service and accords with the OCP mandate for special needs housing in a rural area. It is not inconsistent with a rural lifestyle. It is just an inevitable progression in an ever changing community. [80]

I find that Bylaw 8475 is not inconsistent with the OCP. Both Bylaw 8474 and Bylaw 8475 stand.

CONCLUSION [81]

The petition is dismissed. “R. S. Tindale, J.”

Haldi decision  

Justice Ron Tindale's Reason for Judgment in Haldi Road neighbours v. City of Prince George.

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