Supreme Court judgment released in WEN legal challenge to STIR, Rental 100: Initial response by WEN

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Judgment released in WEN legal challenge to STIR, Rental 100: Court finds that City has almost unlimited power to define Housing Affordability as “Affordable Housing is Housing Someone can Afford”

(Vancouver, 30-May-2014)  West End Neigbours reports today that the Honourable Madam Justice Susan A. Griffin has handed down her judgment on WEN Residents Society v. Vancouver (City) (2014 BCSC 965). In effect, she found that the City of Vancouver has virtually unlimited powers to give developers incentives without producing “affordable housing.”

This issue goes back to 2009 when City Council adopted the Short Term Incentives for Rental (STIR) program, replaced by Rental 100 in December 2011.

Virginia Richards, speaking as a Director of WEN, said as an initial response: “Our legal challenge was successful in forcing the City to make changes to bylaws in December, but we regret this Court decision today. We are residents who feel something is fundamentally wrong with City processes, and with the STIR and Rental 100 programs in particular. We were motivated to take action to challenge a City Hall that appears to be overstepping its boundaries in so many ways. We are grateful to the many people who gave us moral and financial support for our legal initiative, and for their understanding that this whole attempt has been done with considerable personal sacrifice. It is not something we started lightly. Though the judge’s opinion is that the City of Vancouver has not broken the letter of the law, we feel that this is very different from the spirit of the law.”

More initial comments:

  • WEN was successful in getting the City of tighten its loose and arbitrary approach to rental building incentives for developers, through Bylaw changes and clarifications Council adopted in December 2013. See “Yes, Vancouver, You can fight City Hall! Community group’s legal action forces City Hall to change Rental 100” (WEN, 3-Dec-2013) and “WEN rejects City of Vancouver’s bylaw tweaks on STIR/Rental 100” (1-Dec-2013, the first time the City declared dollar values for what it deems “affordable”)
  • The tightening [of Bylaws in December] included much more clarity on the types of rental units being created, and the rents involved. In fact, the bylaw changes exposed the reality that what the City is encouraging through incentives for developers is NOT inexpensive or “affordable” housing as the word is generally understood. Statements by politicians suggesting that these programs will assist with housing affordability are false.
  • The Judge notes the City’s contention that construction costs, and “maximum limits on average rents” at initial occupancy will be monitored. In reality, the City has failed to monitor occupancy in completed STIR projects to date.
  • Massive increases in density to create expensive rental housing costing up to $4 per square foot a month for rents is a misguided approach. (This is a real example — from The Lauren, at 1051 Broughton Street (formerly 1401 Comox Street) which is now advertising for renters as soon as construction is completed this year.) Also, the approach fails to balance the desire to create housing options with the impacts of on neighbourhoods of this increased density.

A major point made by Justice Griffin regarding “criticism of Council’s political choices” deserves highlighting: “That is not a matter on which the Court ought to weigh in. Instead, the forum for these arguments is at the ballot box.” She also pointed out this: “The City is not attempting by this program to create rental housing for low income households.”

Although the Court has determine that the City bylaws are lawful, WEN believes that market-rate rental housing for moderate income earners is not “affordable housing.” The judicial system has taken a very broad view of the powers of City Council. We may still challenge this decision, but perhaps more important is the court of public opinion.

WEN will issue a fuller response next week after further reviewing the Court’s judgment.

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