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08May
2014

Court Upholds Prince George OCP and Zoning Amendments Permitting Rural Area Recovery Facility

On May 7, 2014, the Supreme Court of British Columbia released its decision in Pettersen v. Prince George dismissing a challenge to two City bylaws, an OCP amendment bylaw and a site-specific zoning amendment bylaw, both designed to permit the establishment of a therapeutic community care facility on an old school site in a rural part of the City.

The amendment bylaws at issue in the Pettersen case had been adopted following the Court’s 2012 decision in Sevin v. Prince George quashing an earlier zoning amendment bylaw to permit the facility, on the ground that the bylaw was inconsistent with the City’s Official Community Plan. In Sevin, the inconsistency between the zoning amendment bylaw and the OCP arose because the OCP contained policies specifically identifying urban areas as suitable for recovery facilities without any similar policies applicable to rural areas. The OCP amendment bylaw at issue in the Pettersen case addressed this issue by adding language to the OCP specifically identifying the old school site as a site on which a therapeutic community care facility could be established. It was this amendment and the companion zoning amendment bylaw (which was similar to the bylaw at issue in Sevin) that were challenged in the Pettersen case.

The Petitioner challenged the OCP amendment bylaw primarily on two grounds: first, that the level of specificity in the OCP amendment was appropriate only for zoning bylaws, not official community plans; and second that the amendment at issue was inconsistent with other provisions of the City’s OCP, unduly limiting the proper application of the statutory rule that subsequently adopted zoning bylaws must be consistent with an official community plan. The Petitioner challenged the zoning amendment bylaw on the ground that it was inconsistent with the OCP, a challenge that appeared largely dependent on a successful challenge to the OCP amendment bylaw.

The Court rejected the Petitioner’s claims. The Court held that the adoption of a site-specific policy for the therapeutic community care facility did not transform the OCP into a zoning bylaw, since, like other policies in the OCP, the site-specific policy had no legal effect on private landowners. The Court also rejected the internal consistency argument, noting that there “is no statutory requirement that an OCP be internally consistent” and that the “real question is whether a subsequent regulatory bylaw is consistent with the OCP.” Finally, the Court rejected the argument that the zoning amendment bylaw was inconsistent with the OCP, finding that the problem the Court found in Sevin had been rectified by the OCP amendments.

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