Opinion

Vancouver's 'Spot Zoning' Is Corrupting Its Soul

No more one-off deals with developers. Invite citizens to help zone the whole city and everyone wins.

By Patrick M. Condon 14 Jul 2014 | TheTyee.ca

Professor Patrick Condon is chair of the urban design program at UBC's School of Architecture and Landscape Architecture. Find his previous piece on The Tyee here.

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Who decides, and why? Spot zoning and the lust for Community Amenity Contributions money is driving a conflict-ridden, biased towards big approach to development in Vancouver. Photo by hradcanska from Your BC: Tyee's Photo Pool.

Why is Vancouver a place where developments increasingly spark conflicts, where frustrated developers must gamble millions of dollars on projects before knowing if they will meet city approval, and where developer money floods the political system? Is that just the way modern cities operate, or is there something unusual about Vancouver?

There is indeed something uniquely troublesome about how city building is done in Vancouver and my aim here is to identify the problem and propose a solution that brings sanity, predictability and transparent democracy to the process.

This is going to require a short course in some history, policy, and two related villains. Please settle in.

A culprit called CAC

We begin with our first villain, something called the Community Amenity Contributions (CAC) -- a seemingly golden source of revenue that instead is crippling Vancouver's civic future.

What's CAC? For over two decades the City of Vancouver has been financing the construction of its public amenities with a negotiated and variable tax on development called a Community Amenity Contributions. Vancouver, because of how it was formed by the crown in 1898, is the only city that can levy such a negotiable tax, where some projects are taxed at one rate, others at a different rate. Vancouver enjoys this freedom because it is a charter city and exempt from many of the regulations imposed on the other communities of the province by the Local Government Act. Other communities must use a more narrowly constrained tax on development called the Development Cost Charge. The DCC is not a negotiable tax. It is a narrowly defined tax on development charged to the developer based on the number of new units built or the number of square feet of built space added. It must be evenly applied, and cannot be used for purposes other than the narrow ones described in the Local Government Act.

Why does this matter? It matters because the CAC tax fuels the palpable dissatisfaction now rampant in B.C.'s major city, and in many ways stands in the way of a future we may prefer. Here is how.

CACs paid for building beloved parts of Vancouver, so what's the problem?

The history of Vancouver's unique relationship with the CAC is long and twisting. The CAC is not a fixed tax but a variable tax on development that is triggered only when a change is requested to existing zoning on an existing parcel, changes that are negotiated on a case by case, parcel by parcel, basis. The flexibility of this tax on development made the modern pieces of the Vancouver seawall possible, and increased Vancouver's worldwide fame as a result. But many now fear that what was once benign has turned malignant, and that the entire policy framework underlying the CAC mechanism needs revision.

That is because, under present circumstances, there is a powerful incentive for Vancouver developers to propose really big projects, as the possibility for large profit outweighs the risk associated with an increasingly uncertain rezoning approval process.

On the other side of the table, the "city" (by this I mean citizens, staff, and elected leaders) also has good reason to favour big projects over small, as under present circumstances, only in projects worth hundreds of millions can the city reap tens of millions of dollars in CAC fees.

These large "contributions" often help mollify the resistance of area residents to those gigantic projects, through the provision of neighbourhood amenities like libraries, community centers, day care centers and parks. Those are all good things indeed. So what's the problem? The problem is that throughout North America the process of approving "one off" projects through the vehicle of zoning changes has a long and corrupt history. This rebuff to best practice has a name. This second villain in our tale is called "spot zoning."

The soft corruption of spot zoning

Spot zoning is when, for whatever reason, a city is willing to repeatedly allow changes to its own zoning map on a site by site basis. Because it is necessarily one proponent who requests the spot zone change, the practice has traditionally been criticized, both for negating the document that in ordinary circumstances governs municipal development (the zoning map), and because it quite obviously allows some voices to speak louder than others when development decisions are made. After all, with spot zoning, tens of millions of dollars in potential profits or losses can rest on one decision made on one parcel by one city council on one day. And in Vancouver, there are no limits on the amount of money that development corporations can supply to political parties. Those two facts leave politicians and their donors open to at least the appearance of conflict of interest when spot zoning occurs.

In such a game the smaller players complain that they have no chance. And here we arrive at why almost all the discussion in our city about what to develop almost exclusively pertains to large projects. They include ones near existing or proposed SkyTrain stations at 41st and Cambie, Marine Drive and Cambie, and Main and Broadway, to name but a few. All of these projects are over 300,000 square feet, dwarfing their much smaller neighbours.

Other ways of achieving city improvement goals are certainly possible and brilliant examples exist, albeit overshadowed, literally and figuratively, by the larger projects. Notable as an exception is Arbutus Walk at 12th and Arbutus, a project that expresses a rich diversity of architectural expression at highrise equivalent density, all without breaking the 10 storey mark. It is worth looking at: an ensemble of buildings, most of them smaller than 100,000 habitable square feet, designed by some of the city's best architects, create a rich palette of housing choices in a lively mixed use neighbourhood -- all without overshadowing surrounding blocks. But this is not the current game. No other Arbutus Walk scale proposal is anywhere on the civic horizon.

The rules for development in Vancouver appear to have become: Go big and cough up lots of CAC, or go home.

Lacking: a legal baseline

Another concern here is legal. While Canadian cities have a lot of authority over what private property owners can and cannot do with their land, such powers are not unlimited. Cities can only limit or enhance property rights if there is a clear public benefit to be gained.

We've seen an example in the codification of the City of Vancouver "view corridor" policy. Claiming a clear public benefit to be gained, the city enacted regulations that resulted in a characteristically Vancouver skyline, and a deliberately qualitative visual urban experience. This was a departure from spot zoning. The "view corridor" policy established the legal basis for zone change approvals, approvals grounded on a transparently legislated and publicly available set of policy documents. Thus grounded, the city was on firmer legal ground when limiting how high and where developers could and could not build.

But the downtown is, in the minds of many people, "finished," and it's now time to build up the other parts of the city. What are the similarly firmly legislated city design goals that apply to the parts of the city outside the urban core? Many would argue that for most of the remaining city there are none, or at least none that are remotely close in depth and detail. Thus rezoning applications are now entertained for areas of the city that have no local area plans, no qualitative urban design vision (such as view corridor policies), and no comprehensively revised zoning plan.

Increasingly, the city and its leaders are making decisions in the absence of a transparent city building policy, running the risk of eroding public confidence in the transparency of their actions and even potentially opening themselves up to challenge. That Vancouver, famous around the world for good city design, would now fail to meet the most fundamental benchmarks for professional and defensible city planning, is more than ironic. Spot zoning is frowned upon throughout North America, and selling zoning, absent a clearly defined and legally defensible public benefit rationale is, in most jurisdictions, illegal as well.

A solution

Vancouver, because of its unique status as a charter city, is the only municipality in the region that does not have to have an Official Community Plan (OCP). All 20 of the other municipalities in our region must formally adopt such a plan, and must update and submit said plan to the province for review every five years. These plans provide a detailed and legally defensible policy framework that governs allowable future land uses and identifies the infrastructure necessary to support them. Civic goals around health, safety and welfare are also articulated in these plans, as are goals for environmental protection. The city zoning maps must be updated now and then to be brought into conformance with the official community plans. Vancouver has no such obligation. Vancouver has no such plan.

What? Vancouver has no plan?

That Vancouver has no plan and that it is the only city in the region without one comes as a shock to most people. Most people assume that we simply must have one, and are unconvinced when they are told the contrary. "Certainly there must be a plan! What of the massive CityPlan effort back in the mid-nineties? Surely that is our plan?"

Sadly no. After an effort that consumed over a million dollars and involved thousands of citizens, the CityPlan initiative never achieved what surely should have been its most fundamental goal: a revision of the City of Vancouver zoning map. This is truly tragic, since citizens did the right thing. Offered the choice of no growth, or growth only downtown or growth throughout the city in neighbourhood focussed community hubs, a clear majority chose the latter. But then a strategic mistake was made. Rather than immediately moving to redraw the city-wide zoning map in conformance with the CityPlan vision, city leaders chose a piecemeal approach -- working on local area plans, one neighbourhood at a time. Neighbourhoods now dealt with in an isolated fashion behaved differently than when part of a citywide initiative. Feeling unfairly isolated, they lost enthusiasm for the agreed to goals, while residents of untouched parts of the city wrote off the exercise as a waste of time.

As a sad result we find ourselves, 20 years later, under tremendous developmental pressure, with no plan. We find ourselves in a city that is addicted to spot zonings, and the CAC tax windfalls they produce, as the answer to any and all city building questions.

Put the plan in CityPlan

In my humble opinion, the solution to these linked problems, as painful as it might be to contemplate, is to pick up the dropped thread of CityPlan. But this time let's put the plan in CityPlan. This time let's change the zoning map. Let's pre-zone the entire city in conformance with our collective vision. Impossible? No. Cities do this all the time. In fact every city in our region besides Vancouver does it routinely. A pre-zoning of the city would hopefully end the practice of spot zoning. If a particular intersection is appropriate for highrise densities, then let's figure that out ahead of time. If mid-rise structures along our 200+ kilometres of arterial roads are a suitable for aging in place, let's discuss. If we want to really address the affordability question by using a city wide development cost levy to require 10 per cent of all new housing units be publicly owned, let's do it.

Abandon the CAC for the DCL

We have a way to do this. In fact we already use it. There is another tax on development called the Development Cost Levy (DCL). This tax was authorized by the province when the "Downtown South" area of Vancouver was developed. It was used because the area, unlike the previously redeveloped Coal Harbour or Yaletown areas, was made up of hundreds of individual parcels owned by hundreds of owners, not just one or a relative few. Given this complexity, the area was "up-zoned" ahead of time, and a fixed per square foot development tax, the DCL, was established. The DCL is now used throughout the city and applies to big and small projects alike. The amount is fixed, levied on a square foot basis. No negotiations required. The city has the power to raise or lower this tax in a way that captures as much of the new value generated by development as it chooses.

So if development brings with it a new need for parks, affordable housing, and other public infrastructure, let's figure this out. Not on a spot zone basis, but citywide (or at least district wide). Let's get bankers and developers of all kinds of projects, big and small, at the table. Let's add transportation experts, citizens, teachers, police, the deputy fire chief, the board of trade -- in short everyone who has a stake in Vancouver. There is a collective and collaborative vision out there. For all its faults the CityPlan process proved it.

And Vancouver City Council does not lose by this strategy. It gains. Council will be the ultimate authority to pass, reject, or amend the city plan. And once it's adopted we can put a stop to the interminable conflicts that development proposals increasingly spawn. Developers will have a literal road map of what they can and can't build. Small projects can compete fairly with the large. The anxiety felt by developers, who currently never know if their proposals will be approved until years have passed and millions spent, will be allayed. And most importantly, our elected officials can finally get out of the trap they have made for themselves, constantly under pressure to approve or reject plans where millions of dollars are at stake, yet there is no articulated public purpose to guide them. This obvious "soft corruption" is undercutting the reputation of our elected officials just by the general appearance it creates, no matter what level of personal rectitude they adhere to.

There are no winners in this game. Not at present. Not the citizens, not those in need of housing, not the developers, not our political leaders. We find ourselves in a lose-lose-lose situation. Surely it's time for a change.  [Tyee]

Read more: Municipal Politics

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