Summary

On November 6, 2017, the Development Permit Board refused a development application for a 9-storey mixed-use building at 105 Keefer Street with ground-level retail and eight levels of dwelling uses above, containing 111 dwelling units. The application was the fifth attempt since 2014 by the Beedie Development Group to seek approval for development on the vacant former gasoline station site near the Chinese Veterans’ and Workers’ Monument and Memorial Plaza, and across the street from the Dr. Sun Yat-Sen Classical Chinese Garden and the Chinese Cultural Centre.

Neighbourhood opposition had been substantial and persistent since the first design was proposed. The refusal was unprecedented, as development applications undergo an intensive review process during which concerns are addressed and typically give rise to conditions being attached to the approval.


Development Permit Board REFUSES development application at 105 Keefer Street in Chinatown

Description

On November 6, 2017, the Development Permit Board refused a development application to develop a 9-storey mixed-use building at 105 Keefer Street with ground-level retail and 8 levels of dwelling uses above containing 111 dwelling units. The application was the fifth attempt by the Beedie Development Group to seek approval for development on this former gasoline station site near the Chinese Veterans’ and Workers’ Monument and Memorial Plaza and across the street from the Dr. Sun Yat-Sen Classical Chinese Garden and the Chinese Cultural Centre. Neighbourhood opposition had been substantial and persistent since the first design was proposed.

DPB refusal of a development application is exceptional, as applications undergo an intensive review process during which concerns are addressed and typically give rise to conditions being attached to the approval recommended by City staff. In this case, in casting the tie-breaking vote, the City’s chief planner and chair of the Board stated that the design did not fit the cultural significance of the site, and later raised the question of the discretion of the Board to interpret matters of cultural context and fit.

 

Significance

This decision of the Development Permit Board appears to have possibly a three-fold significance. In the first instance, the decision of the DPB to refuse a development application is unprecedented since the establishment of the Board in 1974. The process for DPB decision-making typically includes extensive staff analyses, open houses and other public consultations, Urban Design Panel review, review by heritage, historic and/or other civic advisory committees as may be appropriate, and advice from the Development Permit Board Advisory Panel.

The well-established approval process for major developments involves the Development Permit Staff Committee preparing recommendations for the DPB to approve the application subject to a number of conditions, some of them to be met through revisions of plans ‘prior-to’ development permit issuance. Occasionally, some conditions might be tweaked, or additional conditions added, in DPB meeting itself. Through this approval process for major developments, applications generally do not go to the Board unless they are supported by staff and are very likely to be approved by the Board. Occasionally staff will first report an application to City Council for advice and direction when established City policies and guidelines do not fully address the issues or opportunities it raises.

The failure of an application to obtain DPB approval, in spite of a process designed to ensure that development proposals respond effectively to City plans, policies, guidelines and regulations, presents a curious circumstance. On the one hand it is a unique event, as are most milestones, but it is difficult to identify or foresee what could be transformative and influential in this unprecedented refusal of a major development application.

Second, the DPB decision was clearly significant, and transformative, in the Board’s refusing the application on the basis of the proposed design’s lack of ‘cultural fit’. Because the design did not fit the cultural significance of an important Chinatown site, the Chief Planner felt that the application had not met the design test for major development applications. The significance of this lies in the introduction of social and cultural factors, or ‘cultural significance’, in the approval process for major development.

The many opponents of the Beedie Group proposals were concerned that social housing was not incorporated and the proposed market housing would contribute, even accelerate, gentrification in the area. Some argued the site should be exclusively for social housing. Many opponents insisted that the proposals were too large and out of character for the neighbourhood and the cultural and historical context of the location. As one observer remarked, the developer didn’t respond to community concerns, they “just painted the door red”.

However, as noted earlier, the proposed building height and land uses were acceptable under the regulations. It was in the domain of external design that the application could be challenged. The appeal to ‘cultural significance’ is something new. There is something of a precedent in the adjoining Downtown Eastside neighbourhood where the Director of Planning in early 2016 published guidelines “to help new development and businesses to fit better into the neighbourhood” (see “Neighbourhood Fit Considerations – Helping Development And Businesses To Meet Social Impact Objectives In The Downtown Eastside (Dtes)”). While the concern and emphasis in the Dtes is social impact, defined primarily in terms livability and affordability, the Chinatown situation involves cultural impact and suggests that design guidelines need to be reviewed and enhanced to better reflect the cultural and heritage values of Chinatown residents.

A third point of significance is the highly significant role which the public appears to have played. The very strong, deep, widespread and sustained opposition from neighbourhood residents and supporters appears to be been a major factor in the City Council turning down the rezoning application after a Public Hearing. There were many opportunities for the concerned public to express opinions and have its views heard, including open houses, written communications and presentations to City Council at Public Hearing. The extent of public input is suggested by this evidence from the rezoning process: “The following correspondence was received since the application was referred to Public Hearing and prior to the close of the speakers list and receipt of public comments:

  • 151 pieces of correspondence in support of the application;
  • 1693 signatures on three petitions in support of the application;
  • 542 pieces of correspondence in opposition to the application;
  • 3092 signatures on two petitions in opposition to the application; and
  • 199 pieces of correspondence related to other matters.”

Similarly there was much public input, most of it opposed, in response to the subsequent development application where most of the 95 speakers who spoke to the Board were opposed to the application. In both cases there was much greater majority of people opposed than were supportive. This seems to speak to the success achieved by persistent and widespread public agitation — much like the debates and protests which succeeded in 1972 in halting plans announced in 1967 for a freeway through the Strathcona and Chinatown neighbourhoods.

One commentator remarked that the foregoing suggests that the DPB’s decision was essentially a political one rather than the customary negotiated decision. The controversial application should perhaps have been referred to City Council for advice. The DPB was created to depoliticize the permitting process, and so this refusal decision could undermine trust in and the legitimacy of the Development Permit Board.

 

Background

Established in the 1880’s, Chinatown is one of the formative communities of Vancouver. It has an evolving and enduring cultural identity, with many active community organizations, a distinctive urban and cultural landscape, and a unique vernacular architecture. Zoning regulations, guidelines and policies for Chinatown generally seek the scale, architectural language and design quality of new development to be responsive to and compatible with the community’s established cultural and historic identity. Recent projects and proposals have failed to provide the neighbourliness and respect, the ‘contextualism’, which the community expected after several years of consultations.

Amendments to the regulations in the HA-1A zoning districts schedule to allow increased building heights in the Chinatown Historic Area were approved by the City Council in October 2012, following an extensive ten-year process of consultations with local Chinatown stakeholders and residents and the adoption of several policy documents, including:

  • Historic Area Height Review (HAHR) (pdf) In January 2010, Council adopted most of the recommendations of the HAHR, a key objective of which was to bring new residential development opportunities to revitalize Chinatown. The recommendations included the adoption of a rezoning policy (see below), amendments to the HA-1 and HA-1A Districts Schedule, and amendments to the Chinatown HA-1 Design Guidelines and Chinatown South HA-1A Design Guidelines. The zoning amendments increased allowable building height in the HA-1A district from 21.3 m (70 feet) to 27.4 m (90 feet) and the rezoning policy allowed consideration of still greater buildings heights in Chinatown South, a small part of the HA-1A district.
  • Rezoning Policy for HA-1A District Chinatown South (pdf) On April 19, 2011 Council approved a rezoning policy to provide guidance for staff and developers for proposals to increase height beyond provisions of the base zoning: to 36.6 m (120 feet) throughout the HA-1A area and further to 45.7 m (150 feet) on sites between Keefer and Union Streets fronting on Main Street. The objective is to direct growth to Chinatown South, which has fewer heritage buildings than Pender Street, and to leverage public benefits from new development, including innovative heritage, cultural and affordable and social housing projects.
  • Chinatown Neighbourhood Plan and Economic Revitalization Strategy Adopted in June 2012, in recognition that residential intensification alone cannot bring back a vibrant Chinatown, the Plan and Strategy direct City staff to work with groups in the area to comprehensively address community aspirations. The Plan and Strategy were the result of over a decade of community work and lessons learned to encourage investment in the community and to improve conditions for those who live, work and visit the area.

Rezoning applications for three sites in Chinatown South were submitted on the basis of the 2011 rezoning policy. Two rezonings in early 2013, at 611 and 633 Main Street, were highly controversial but were approved by the City in spite of considerable opposition. Perhaps because of the experience to date, the third application, submitted by Merrick Architecture in 2014 on behalf of the Beedie Group encountered stiff opposition both initially and in its subsequent three revisions. The fourth proposal to rezone the site from HA-1A to a CD-1, to permit development of a 12-storey mixed-use building with height of 36.0 m (118 ft.) commercial uses on the ground floor, 25 social housing units for seniors on the second floor and 106 strata residential units on the higher levels, was referred to Public Hearing three years after first being submitted. At the end of the hearing, which stretched over several days (May 23, 25, 26 and 29, 2017) in order to hear an unprecedented number of speakers mostly against the application, Council voted to defer discussion and decision to its meeting of June 13, 2017, where the application failed to obtain Council support, by a margin of 3-8.

In July a development application (DP-2017-00681) was submitted proposing a 9-storey development. The proposed height of 27.1 m (88.86 ft.) was below the maximum allowable of 27.4 m (90 ft.) and the proposed uses (Retail Store and Dwelling Uses) are Outright Approval Uses in HA-1A. [To note, the HA-1 and HA-1A, and the HA-2 (Gastown), zoning regulations do not have a maximum floor area or floor space ratio as do other zoning district schedules in the city.]

The only discretionary element in play was External Design, as provided in section 4.17 of the HA-1 and HA-1A Districts Schedule (Chinatown Historic Area):

4.17 External Design

All new buildings and alterations or additions to existing buildings require the approval of the Development Permit Board or the Director of Planning for the design of buildings or alterations to elevations facing streets, lanes, and adjacent buildings. The Development Permit Board or the Director of Planning may approve the design of such buildings, alterations or additions provided that he first considers the following:

(a) the intent of this Schedule and all applicable policies and guidelines adopted by Council; and
(b) the submission of any advisory group, property owner or tenant; …

The application did not seek an increase above the height limit or any land use not permitted outright in the zoning. Not only did the proposed development conform with the zoning regulations, it went beyond with a proposal to provide a neighbourhood amenity in the form of meeting space for Chinatown seniors. The project received the unanimous support of the Urban Design Panel on August 9, 2017 but was not supported by the Chinatown Historic Planning Committee on Oct 12, 2017. When staff analysis of the application was completed, it earned the support of the Development Permit Staff Committee with a recommendation that it be approved subject to various conditions. In a memo dated October 27, staff informed City Council that an agreement with the Beedie Development Group could not be reached regarding a potential land swap or an outright purchase of the site by the City.

At the DPB meeting of October 30, 2017 to consider the DPSC (Development Permit Staff Committee) report on the application, it took more than eight hours to hear the staff presentation, advisory panel comments and almost 100 members of the public. In a rare move, the Board then approved a motion to close the speakers list and defer discussion and decision of the application to its meeting of November 6, 2017.  The Board also asked staff to come back to that meeting with information such as whether cultural aspects could be considered.

Gil Kelley, Vancouver’s Chief Planner and General Manager of Planning, Urban Design and Sustainability, after the meeting is quoted to have said “There were many questions that came up during the public testimony about our ability to interpret things more broadly with a cultural context and cultural fit for a project, beyond the physical guidelines,” he said. “The question I’d like staff to answer is: How narrow or how broad is our discretion as a board under our city rules?” he said. “Should this matter be referred to city council?”

At the DPB meeting of November 6, Planning staff informed the Board to the effect that height was not something for which there was DPB discretion – it was not something they could reduce. Deputy City Manager Paul Mochrie supported the application to build the proposed nine-storey building. He noted that several members of the Chinatown community supported the condo project, and he said he doesn’t believe that Chinatown’s future hinges on just one building. Jerry Dobrovolny, the City Engineer and General Manager of Engineering Services, moved to reject the application on the grounds that its design did not fit the cultural context of the site. He indicated that the building would have to be much smaller and would require a lot of changes to provide an appropriate backdrop to Memorial Square.

This left Chief Planner and Chair of the DPB, Gil Kelley, to break a tie. [Note: If the votes of the 2 Board members present at such meeting are equally for and against a staff recommendation, the Chair shall have the right to exercise the casting vote.]  Kelley voted with Dobrovolny, saying that the current design does not fit the cultural significance of the site. “Because this is such an important site, with such design significance to Chinatown, and because I feel that the application has not met the design test in my view, I’m going to support the motion to refuse the application,” Kelley is quoted to have said. He noted that the Board does not have the power to determine what kind of housing or retail would be allowed in the building. Many opponents of the application wanted it be all social housing and with retail chains excluded from the ground-floor commercial space.

In its 1-2 vote, the Board effectively decided that the application did not meet the guidelines for external design. It was subsequently reported that this was the first time since 2006 that the DPB has rejected an application. Further investigation by this author, in consultation with City staff, confirmed that the 2006 application in question had not been refused but was  sent back to the drawing board for revisions. It was reconsidered by the DPB at a later date with the same development application number.

Subsequently, a representative of the Beedie Group is said to have stated in an emailed statement that the company was “extremely disappointed” that the permit board “undermined” support for the project from the City’s planning staff and Urban Design Panel. Further, “Like many people, we are uncertain what this unprecedented decision will mean for these civic institutions.”

Anne McMullin, Urban Development Institute president and CEO, is said to have made a statement that “This project denial sends a negative chill throughout the industry. Our members … are concerned this decision undermines the integrity and reliability of the city’s rigorous planning regime, and puts into question future projects, not only in Chinatown, but across the city.”

Gil Kelley is quoted to have said it doesn’t. “I would not make this into a precedent in the sense that somehow the zoning only goes so far and all development is up in the air again,” said Kelley. “That I don’t think is the case. It was certainly not an anti-housing vote or an anti-development vote. It was really a question that was very site-specific about the design.”

Contributing to the context for the Development Permit Board meeting of October 30 and then the follow-up on November 6, and perhaps having some influence on the comments of the public made at DPB meeting and indirect influence on the deliberations of the DPB, was a near-concurrent decision by City Council regarding the historic discrimination against Chinese people in Vancouver. In Committee on October 31, 2017 and approved at a meeting of Regular Council the following day, City Council received “Preliminary Research on Historical Discrimination Against Chinese People in Vancouver”, a report on historic discrimination against Chinese immigrants by former municipal governments. Council the approved a recommendation of the Historical Discrimination Against Chinese People (HDC) Advisory Group that requests a public acknowledgement and a formal apology for past legislation, regulations and policies of previous Vancouver City Councils that discriminated against residents of Chinese descent. Council further approved that the apology in its Chinese version be delivered in a dialect that was spoken by early Chinese residents (‘Toishanese’). Other measures included redesigning Memorial Square and applying for Chinatown to be a UNESCO heritage site.

PostScript

Following the surprising decision of the Development Permit Board to refuse DP-2017-00681, there was much speculation about how the Beedie Group might respond. Would it sue the City? Would it appeal the DPB decision to the Board of Variance? They chose the latter.

In their Notice of Appeal, dated December 6, 2017, Beedie Holdings Ltd. state that the DP Board refused to approve the application on the basis that the proposed development failed to meet the design guidelines of section 4.17 (External Design) of the HA-1A zoning, “notwithstanding that the Board could have approved the application with conditions that would result in correction of any matters of design as this was already addressed in the recommendations of the City staff and accepted by the applicant.”

The Vancouver Charter sets out the duty of the Board of Variance to “hear and determine appeals

(a) by any person aggrieved by a decision on a question of zoning by any official charged with the enforcement of a zoning by-law;” and “(e) by any person aggrieved by a decision by any board or tribunal to whom Council has delegated power to relax the provisions of a zoning by-law;”.

A BOV meeting to hear the Beedie appeal was scheduled for March 6, 2018 but later cancelled. On February 23 the Board announced that legal consultants had determined that the Board cannot hear the appeal. On that day Beedie Development Group received a letter from Alyssa Bradley of Young Anderson Barristers & Solicitors, lawyers representing the City of Vancouver’s Board of Variance.

“We write to advise that the Board of Variance considers that it does not have jurisdiction to hear and determine this appeal,” reads the letter from “The Board considers that it does not have the jurisdiction … to exempt the appellant from the requirement in s. 4.17 of the HA-1A zone that the design of a building be approved by the development permit board. The Board of Variance only has the jurisdiction to hear appeals from decisions of the Development Permit Board engaging its power to relax the provisions of the City’s Zoning and Development By-law.”

Essentially the outside legal opinion said that the BOV could hear appeals about design based on hardship related to the City’s Zoning Bylaw, but it can’t hear appeals about design decisions made under the special zoning bylaw that was specifically written for Chinatown.

In another significant follow-up, following the Public Hearing in May, 2017, Vancouver city planners had indicated that the City would revisit Chinatown rezoning policy, and likely rescind the rezoning policy which allowed developers to build higher than existing zoning rules in exchange for providing social housing and other community benefits.

On June 5, 2018, City Council considered a staff report which recommended amendments to the Chinatown HA-1 and HA-1A Districts Schedule, Design Guidelines and Policies. The most important recommendation was to revoke the rezoning policy whereby buildings exceeding 90 feet could be considered — to a height of 120 feet in the area known as Chinatown South and height of 150 feet in an area along Main Street. Interestingly, support for revoking the rezoning policy was relatively muted compared to the opposition. Staff reported the following written communications received since June 5:

  • 116 pieces of correspondence in support of the application;
  • 1 petition with 1,165 signatures in support of the application;
  • 150 pieces of correspondence in opposition to the application;
  • 2 petitions (69 signatures and 252 signatures), both in opposition to the application; and
  • 14 pieces regarding other aspects related to the application.

At the Public Hearing of June 28, Council heard from 73 members of the public – 37 spoke against the application (53 percent) while 34 spoke in support. At its meeting of July 10, 2018, City Council approved the staff recommendations generally as proposed.

 

Sources

Media and Other Commentary


Prepared by: Phil Mondor, Vancouver City Planning Commission Chronology Committee
Last Revised: Thursday, August 30, 2018