Staff Report: Public Hearings (Waiver/Delegation during COVID-19)

Staff Report

to
Council

Date: April 6, 2020
Department: Planning
Subject: Public Hearings

Background

Section 464 of the Local Government Act (see Appendix “A”) requires that Council hold a Public Hearing before adopting an OCP amendment, a zoning bylaw, or a bylaw under section 548 (early termination of a land use contract). The Local Government Act permits Council to waive the holding of a Public Hearing if the area being considered for rezoning is subject to an Official Community Plan, and the zoning proposed is consistent with the OCP. As all of the City of Langford is encompassed by its Official Community Plan, Council may waive the requirement for a Public Hearing for any zoning amendment that is consistent with the OCP (ie: does not require a concurrent OCP amendment).

Section 469 (see Appendix “A”) of the Local Government Act allows Council to delegate a Public Hearing to an individual or individuals, subject to Sections 154 and 155 of the Community Charter (see Appendix “A” also).

Both of these parts of the Local Government Act have been in place for many years. Council has, on occasion, used Section 464 to waive a Public Hearing. However, there is usually little or no practical benefit in doing so, as notices that a Public Hearing is being waived must still be sent to residents and owners who may be affected, and the public is still afforded an opportunity to speak to Council (as they would at a Public Hearing) during the Public Participation part of a Council meeting.

Council has not, to the best of staff’s knowledge, ever delegated its Public Hearing authority.

Commentary

The current COVID-19 pandemic and directions from the Province’s Chief Medical Officer have propelled Council to amend its procedures bylaw and begin holding Council Meetings with phone-in or internet, rather than public, face-to-face interaction. Staff has made an enquiry with the City’s solicitors as to whether new Provincial orders which allow Council to meet electronically would extend also to Public Hearings. It is the opinion of our solicitor that they do not, and that if Council (or its delegate) holds a Public Hearing, that it must be open, in public, and face-to-face.

In order to be compliant with the Provincial Health Officer’s direction to avoid public congregations through the duration of this pandemic, Council may wish to pass a resolution to the effect that the City waive all public hearings for zoning bylaw amendments that are consistent with the OCP until the end of the current pandemic.

For zoning bylaw amendments which must be considered concurrently with an OCP amendment (at the present time this only includes three properties on Langshire Drive and Westshore Parkway, and one application on Awsworth Road) Council may wish to delegate its Public Hearing authority to one Councillor to limit the face-to-face aspect of a Public Hearing. Council may wish to consider delegating this authority to Councillor Blackwell, as Chair of the Planning and Zoning Committee and designating Councillor Wade as an alternate. It appears that “special rules respecting delegation of hearings and other proceedings” found in Sec. 155 of the Community Charter allows Council to make this delegation by a simple resolution.

In order to continue moving the City’s business forward and comply with the Provincial Health Officer’s orders and/or recommendations Council may wish to pivot, temporarily, to receiving public input with respect to rezoning applications via written or electronic means. Switching to waived public hearing still requires the City to provide written notice of the public hearing being waived as well as undertake the same type of newspaper advertising as if there were a public hearing. Staff can use these as opportunities to inform the public of alternative methods of making their concerns known (eg: letters and email) as well as provide information about how they can connect with staff to discuss an application in more detail.

Financial Implications

The City collects a Public Hearing fee of $2522 with each rezoning application. This fee represents the City’s costs associated with notifying the public, placing an ad in the newspaper and erecting a sign on the subject property. The City’s fee schedule allows this Public Hearing fee to be reduced to $2047 if a Public Hearing is waived. This savings to the applicant represents the cost of ordering and erecting a Public Hearing sign on the subject property, something that is not required under the Local Government Act, if a Public Hearing is waived.

Legal Implications

The City of Langford is authorized under the Local Government Act to waive the requirement for a Public Hearing and to delegate its authority to hold a Public Hearing.

Holding a Public Hearing, per the City’s usual procedures, under the present pandemic state of emergency could expose the City to a claim of procedural unfairness as the public may feel as though they could not, or should not attend a public gathering in light of the Provincial Health Officer’s orders and/or recommendations.

Options

1. That Council direct staff to waive all Public Hearings for any zoning bylaws which receive 1st reading on, or before, the World Health Organization rescinds the COVID-19 pandemic;

2. That Council pass the following resolution:

“Whereas Section 154(1)(a) and 155(2)(a1) of the Community Charter (SBC 2003) permits Council as a whole to delegate its authority with respect to council hearings that are required by law or authorized by enactment; and

Whereas a Public Hearing under Sec. 464 of the Local Government Act does not constitute a power or duty established by an enactment that council hear an appeal or reconsider an action, decision or other matter;

a) That Council delegate its authority to conduct a Public Hearing to Councillor Denise Blackwell in those instances where a zoning amendment is to be considered in conjunction with an Official Community Plan amendment; and

b) That Council delegate its authority to conduct a Public Hearing to Councillor Roger Wade in those instances where a zoning amendment is to be considered in conjunction with an Official Community Plan amendment and only when Councillor Denise Blackwell is unable to exercise her delegated authority;

c) That this resolution be in effect until the World Health Organization rescinds the COVID-19 pandemic.

Respectfully submitted,

Submitted by:
Matthew Baldwin, MCIP, RPP Director of Planning - Emailed Approval

Concurrence:
Adriana Proton, Manager of Legislative Services - Emailed Approval

Concurrence:
Chris Aubrey, Fire Chief - Emailed Approval

Concurrence:
Lorne Fletcher, Manager of Community Safety and Municipal Enforcement - Emailed Approval

Concurrence:
Michelle Mahovlich, P.Eng, P.Geo, Director of Engineering - Emailed Approval

Concurrence:
Leah Stohmann, MCIP, RPP, Deputy Director of Planning - Emailed Approval

Concurrence:
Michael Dillabaugh, CPA, CA, Director of Finance - Emailed Approval

Concurrence:
Braden Hutchins, Director of Corporate Services - Emailed Approval

Concurrence:
Darren Kiedyk, Chief Administrative Officer - Emailed Approval

:mgsb