Here are a few questions — linked to their answers, below — which should give you the start of what you need to know about third-party appeals and the Board of Variance:

All property owners have the right to build within the "outright" provisions of the Vancouver building bylaws. A planning decision occurs when an application is not considered "outright".

City Council has delegated its authority to the Director of Planning over these decisions.

Subsection 572 of Section XXVII of the Vancouver Charter spells out the authority of the Board of Variance.

What is a third party?

The way a city evolves and matures matters to its citizens, and it is crucial to have effective avenues for citizen input!

Third parties represent grassroots, neighbourhood democracy. If Justice Goepel's decision is allowed to stand, the only parties permitted to appeal decisions of the Planning Departmentto the Board of Variance are owners of the property in question — that is, the developers — while the immediate neighbours and concerned citizens in the community have no say whatsoever.

That depends. A builder is permitted to build — "outright" — a structure that adheres to the property's zoning restrictions.The constraints are outlined by the City of Vancouver Building By-Law and the BC Building Code. Such a structure can simply be built with a building permit issued by the Planning Department. There can be no third-party issue in such a situation, and the building permit will be granted to the applicant without challenge.

If however the property is being developed — that is, going beyond the property's zoning restrictions — the Planning Department needs to consider the application and may, at its discretion, allow certain relaxations. Until recently, concerned citizens have been able to appeal these relaxations at the arms-length City of Vancouver Board of Variance.

For example, a large building is being proposed next to your property; it is much larger than the previous building that occupied the site, and the developer of the property had to apply to the City Planning Department for a development permit and a relaxation of zoning requirements in order for this construction to be allowed to proceed. You happen to use a portion of your property to grow food on, and you can see that this new building will severely limit the available sunlight, effectively removing your ability to use your property as you have been for some time. As always you are free to voice your frustrations and concerns to whomever will listen at City Hall. Because of this ruling, however, this is now your only option, and your concerns will be listened to but not necessarily acted upon. You will no longer have the right to appeal to the Board of Variance to request reconsideration of an approved development permit in order to preserve your right to use and enjoy your property as you have.

Note that the Board of Variance appeal option has only been available if the permit involved a conditional use or relaxation of guidelines.

The Board of Variance is an impartial, quasi-judicial body appointed by City Council that acts as a check and balance to the Planning Department: it provides a mechanism for citizens — be they developers or neighbours — to appeal decisions made by the City Planning Department or the Director of Planning. It is a place to be heard and, if the Board finds that concerns are warranted, to have development permit decisions altered or overturned. Members of the Board of Variance are appointed by Council for a three year renewable term. They cannot be a member of the Advisory Planning Commission or hold any appointed or elected municipal office. As such they are intended to be non-partisan in their decision-making duties; the nature of the appointment process indicates that this may be a challenging condition.

What triggered this loss of third party voice?

The Friends of Salsbury Garden, along with hundreds of community residents, began working in early 2005 to save a quasi-public space in the Commercial Drive area of East Vancouver. The property, listed in Heritage Vancouver's Top Ten Endangered Heritage Sites for 2006, included two 1907 workers' cottages and a large community garden with several hundred-year-old trees and a unique cob-construction shelter. The property was purchased by a Richmond developer, Richard Niebuhr, in January 2005, and members of the community were immediately concerned about the development plans. However, despite widespread community objection, Niebuhr was granted a development permit by the Director of Planning in June 2005. The permit allowed for the construction of two giant faux-heritage duplexes on the site and the destruction of all but three of the trees.

In August 2005, the Friends of Salsbury Garden launched an appeal against the granting of this development permit through the City of Vancouver's Board of Variance. In a decisive victory for the community, their appeal was successful and the permit was quashed by the Board.

In December of 2005 Niebuhr launched an appeal of the Board of Variance decision to the BC Supreme Court.

Meanwhile, the City Council fired the entire Board of Variance. That firing has also been the subject of a separate BC Supreme Court Appeal.

Basically, Justice Goepel's ruling says that no one except a property owner is an aggrieved party. If the Planning Department has allowed significant relaxations, including building height and/or side-yard setbacks, unless you own the property in question, even if you are an immediate neighbour, you are no longer allowed to appeal the decision to the Board of Variance. Apart from the potential of an appeal of a Planning Department decision to the BC Supreme Court (a challenge which could possibly cost a concerned citizen tens of thousands of dollars), with Justice Goepel's ruling, the citizens of Vancouver have effectively lost their right to appeal. With an affordable fee of $81, an appeal to the Board of Variance has for decades been an affordable appeal route for nearly anyone.

If this decision is allowed to stand then only property developers will be given further opportunity through the Board of Variance to challenge the Director of Planning's decisions (if for example, they feel that their development plans were unfairly compromised in some way by his decisions). It will be a closed process consisting of the input of the following parties: the Director of Planning (appointed by City Council), the Planning Department (City employees), the Board of Variance (also appointed by City Council), and property owners/developers. There will be no opportunity for members of the community at large to participate in this process - period. Moreover there will be no elected or appointed officials charged with the specific duty of ensuring that private interests are balanced with public interests in regards to development.

There does remain some opportunity for public involvement in the planning process. Citizens may sit on advisory committees and task groups and/or participate in various public consultation processes such as the Neighbourhood Visioning processes that help shape City policy. The Vancouver Charter requires that public hearings must be advertised and held whenever property is rezoned or designated for a heritage purpose, and the Planning Department is obligated to notify neighbours about such development and to consider public concern. And, of course. there is also voting, which may, in fact, be the only opportunity most of us take to have any actual input.

Despite this, there remains limited accountability on the part of the City and its Planning Department to necessarily consider citizen concerns. Many public processes are hollow exercises in meaningful public engagement, as many of us know who have ever attended public consultations or have spoken to council on an issue we are concerned about. In addition to the firing and replacement of the entire Board of Variance, we have also recently seen the elimination of many citizens' advisory committees.

The more important concern in this matter is that the Planning Dept, under the Director of Planning, has broad discretionary powers that cannot easily be overturned. Without third-party appeals to the Board of Variance, there are no checks and balances of this power. Where there are developments that citizens consider inappropriate or grievous, of which there will probably be many in Vancouver's frenzied development environment (especially in the next couple of years, building up to the 2010 Olympics), they can send in letters, attend public hearings, and speak to council or the Director of Planning, but these efforts have no legal teeth. The Board of Variance provided citizens the only meaningful means for challenging development decisions and the Planning Department's discretionary powers.

Besides an appeal to the Board of Variance, the only other means of appealing a decision of the Director of Planning is through a Supreme Court Judicial Review. Clearly this mechanism is neither timely nor affordable and does not provide an accessible avenue for citizen appeal of City power.