On July 26th Salmon Arm’s City Council voted to allow SmartCentres to build a major new shopping centre outside of the City’s core on environmentally sensitive land adjacent to the Salmon River. That’s bad for the environment, and probably the community, for so many reasons (sprawl, storm water management, impact on fish habitat, etc.), and will doubtless continue to be fought by local environmental groups and the Neskonlith Indian Band, both of which have received grants from West Coast’s Environmental Dispute Resolution Fund.
So what exactly is a Phased Development Agreement?
In 2007 the BC Government amended the Local Government Act to allow municipalities to enter into Phased Development Agreements. PDAs allow municipalities to “lock-in” a current zoning for up to 10 years (20 years with provincial government approval) in return for parks and other amenities beyond what they could otherwise insist upon.
During the legislative debates on the amendments creating PDAs, Liberal MLA Joan McIntyre described the nature and purpose of PDAs as follows:
With this amendment, local governments can provide certainty to abide by zoning through all phases of a large development, ensuring that future councils or boards uphold the original agreement with the developer. In exchange, local governments can also likely negotiate greater or longer-term benefits for their communities. … [K]eep in mind that these phased development agreements are voluntary — the operative word being "voluntary" — and they are between two parties, each of which will bring something to the table.
West Coast Environmental Law did not take a position on the 2007 amendments to the Local Government Act. We did have serious concerns about allowing one City Council to arbitrarily prevent 10 years worth of future elected officials from representing the wishes of their constituents. However, we also recognized that, used effectively, PDAs could allow a city to obtain not just parks but a host of other environmental and community benefits.
In her speech to the Legislature, MLA McIntyre also acknowledged the risks of local governments entering into PDAs which did not live up to this vision of mutual negotiation for the benefit of the community, noting that “I also understand that the Ministry of Community Services will be developing advisory material for local governments to ensure phased development agreements are used appropriately.”
West Coast has asked the Ministry of Community and Rural Development (now responsible for the Act) whether such advisory material was ever developed, but have not yet received a reply. We have been unable to find such materials on the Ministry’s website.
So what did Salmon Arm do wrong?
Phased Development Agreements are intended to be negotiated between a municipality and a developer, with the developer gaining the security of a Phased Development Agreement in exchange for concessions that benefit the community. But in Salmon Arm there was no negotiation, and little discussion by Council or the City staff as to what concessions were even wanted.
Rather, SmartCentres, along with its request for a rezoning, simply proposed a PDA with limited benefits for the city, and asked that the city adopt it (which it did subject to minor amendments). The amenities proposed by SmartCentres, and accepted by the City, as the price for giving up the rights of future City Councils to represent its citizens in respect of the development are:
- A sign at a yet undetermined location, content to be negotiated, intended to encourage shoppers to also shop in the downtown core;
- Drainage systems, most of which would need to be installed in any case;
- A short trail running between the development and an existing green way; and
- A cash contribution of $100,000 which the City may use for various purposes specified in the agreement.
In essence, SmartCentres applied for a PDA at the same time, and in the same way, that it applied for a zoning change and an amendment to the Official Community Plan.
It’s clear from the Local Government Act that this is not how PDAs are intended to be used. The Act contemplates land owners applying for changes to bylaws related to zoning and official community plans, but not for applications to enter into PDAs. However, the Act does not explicitly prevent applications from developers.
West Coast wrote to Salmon Arm’s City Council to warn them that this was not an appropriate use of a PDA.
Phased Development Agreements are a new and powerful legal tool. However, local governments should not be rushed into using them before they have developed the knowledge and policies to ensure that they are using them well. Moreover, they should be certain that they are using PDAs to their full potential for their communities, and not allowing developers to lock in a controversial zoning with little in the way of benefit to the community.
Accepting a Phased Development Agreement on application is a dangerous precedent. We urge you to reject the Phased Development Agreement as submitted.
It’s not surprising that developers would like to have their desired zoning locked in for 10 years, and they have little to lose by “applying” for such an agreement. If other municipalities follow Salmon Arm’s approach, and entertain such applications, we can expect to see a proliferation of these agreements with communities gaining little from the loss of democracy.
How to make PDAs work
Despite the unfortunate use of a PDA in Salmon Arm, these agreements have a lot of potential. But how can we encourage City Councils to ensure that they work better for their communities?
A good first step would be for the Ministry of Community and Rural Development to release the advisory material that the Legislature was assured was under development in 2007.
But in the long run, West Coast would like to see the Local Government Act amended to require a four-step public process before a municipality enters into a Phased Development Agreement:
- Council should hold a public hearing at which the community at large can discuss whether the municipality should enter into negotiations with a developer regarding a possible PDA and, if it does, what amenities the developer should be asked to provide.
- Council, based on the public input, could then authorize the negotiation of a PDA and give direction to its negotiators about what the community would like to get out of the agreement;
- If a PDA is successfully negotiated, a second public hearing would be held at which the community would consider whether the agreement should be entered into.
- Council, after the public hearing, could choose to adopt the PDA through a bylaw.
Such a process would clarify that PDAs are to be negotiated based on a clear mandate from Council and with input from the public. It would also ensure that the negotiation of the agreements is transparent and that Council is aware of any public concerns or goals.
Update: The Ministry of Community and Rural Development did call me at the end of day today (August 11th) to confirm that guidance documents concerning PDAs have been drafted and are currently being reviewed by the Public Affairs Bureau. The date for the release of the documents has not yet been confirmed, but they will likely be available in the fall. We will have to wait to see what these documents have to say, if anything, about the type of situation that arose in Salmon Arm.
