Issuance Of A Development Permit: Not Taking “No” For An Answer
Developers have to deal with the requirements imposed by a municipality through the development permit process. These requirements can be onerous and time consuming, and sometimes appear to the developer as unreasonable or arbitrarily applied.
One land owner decided to push back against the denial of a development permit that the District of Squamish refused to issue. The land owner sought a declaration from the court that Squamish was required to issue the development permit in the case of 0742848 BC Ltd. v District of Squamish.
The Local Government Act permits a municipality to designate development permit areas (DPA) in an Official Community Plan (“OCP”) for a number of purposes. Developers commonly must obtain a development permit for the form and character of the development, but may also need a development permit relating to other issues like the protection of the natural environment or protection from hazardous conditions.
If a municipality designates a develop permit area, it must establish guidelines in the OCP setting out the objectives of the development permit and how the objectives will be addressed.
Squamish established a DPA in its OCP for the “protection of the natural environment, its ecosystems and biological diversity”. The guidelines established in the OCP relating to the DPA included to “minimize the visual and environmental impact of any development” and “to ensure that fish and wildlife conservation and protection of habitat are given priority over other values”.
The 0742848 BC Ltd. (“074”) owned a parcel of land that consisted of 78 acres which was included in the DPA set by Squamish. The Squamish River ran along the western boundary, with about 15 acres located to the west of a dike that ran through the property on a north-south alignment. 074 applied for a development permit to place a modular home on the land between the Squamish River and the dike. 074’s application met all zoning bylaw requirements.
Squamish refused to issue a development permit. The discussion of the councilors at the council meeting focused on the flood risk of permitting development on the western side of the dike, and not on the matters set out in the guidelines.
The Court found that the decision to not approve the issuance of the development permit was not based on the guidelines but on extraneous considerations outside the guidelines. The Court went on to find that even if the decision was based on the guidelines, the decision was unreasonable, even allowing for the considerable deference councils are provided when making a decision.
On that basis, the Court made an order that Squamish was required to issue the development permit.