Staff Report - COVID-19 PUBLIC HEARING PROCESS OPTIONS

RECOMMENDATION

THAT Council follow the recommendation of the Provincial Ministerial Order M139 and hold an electronic public hearing as described within the report from the Community Planner entitled “COVID-19 PUBLIC HEARING PROCESS OPTIONS 1449 Burnside Road West – Eagles Nest” dated May 12, 2020.

CHIEF ADMINISTRATIVE OFFICER’S COMMENTS

I concur with the recommendation.

DIRECTOR OF DEVELOPMENT SERVICES’ COMMENTS

I concur with the recommendation.

PURPOSE OF REPORT

In the current COVID-19 environment the Province has provided direction in the form of Ministerial Order M139 on May 1, 2020, enabling Council to hold an electronic public hearing. This report will outline the details of Order M139 and options permitted therein (as well as alternatives to them) in relation to holding a Public hearing for Bylaw No. 900, 2014 Amendment Bylaw No. 1050, 2020 to rezone the Eagles Nest property.

BACKGROUND

The current application came forward to Committee of the Whole in March, 2020. The tentative timeline for first and second reading of the bylaw was April 21, 2020 Council, at which time a public hearing would have been scheduled.

ISSUES AND ANALYSIS

The holding of Public Hearings for the rezoning of property and/or the amendment of an Official Community Plan is central to the democratic operation of a local government. Section 464 of the Local Government Act requires that

…all persons who believe that their interest in property is affected by the proposed bylaw must be afforded a reasonable opportunity to be heard or to present written submission respecting matters contained in the bylaw that is the subject of the hearing.

We are living in an unprecedented moment regarding the ability of Council, staff, applicants and the public to participate in public hearings in person. Ministerial Order M139 provides additional options for Council to afford the public a ‘reasonable opportunity’ to be heard during a public hearing. The province issued the following statement regarding their order which would permit alternatives to the Local Government Act’s public hearing requirements:

The Province issued Ministerial Order M139 on May 1 to authorize local governments to hold public hearings electronically during the provincial state of emergency. The state of emergency has been extended to May 12 but may be extended again for a longer period.

The order replaces M083 to include all rules governing council and board meetings and hearings in one order. The new Order M139 provides that a statutorily required public hearing for an official plan, zoning, land use contract termination, phased development agreement, heritage revitalization agreement or heritage designation bylaw may be held by means of electronic or other communication facilities, such as teleconference, phone or internet conference. This applies despite the Local Government Act (LGA), council or board procedure bylaws or development procedure bylaws.

Local governments must be able to conduct their business in accordance with public health advisories to reduce the threat of COVID-19 to the health and safety of members and employees of local government and members of the public. In-person public hearings became a problem as of March 16, 2020 when the Provincial Health Officer issued a COVID-19 order prohibiting the gathering of more than 50 people. This prohibition, combined with 2m social distancing, resulted in the cancellation or delay of in-person hearings. Order M139 addresses this concern.

This order gives Council a fairly broad amount of latitude to carry out an electronic public hearing. By permitting electronic public hearings, the provincial government may be seen as endorsing the notion that the public’s input for this rezoning application can effectively be conveyed to Council within the context of an electronic public hearing where no members of the public, the applicant, or staff are physically present.

This application has been in the public eye for some time. Stakeholders, neighbours and the broader community has been introduced to the application in its previous and current iteration by both the development team at open houses sponsored by the developer and by the Committee of the Whole meeting in March 2020. Multiple perspectives about the application have been conveyed to Council.

Process alternatives to holding a public hearing have existed in legislation for years, and have occasionally been used in the Town. Where an application is consistent with the Official Community Plan Land Use Designation Council may waive the public hearing for the bylaw as per Section 464(2) of the Local Government Act:

464 (2) A local government may waive the holding of a public hearing on a proposed zoning bylaw if

(a) an official community plan is in effect for the area that is subject to the zoning bylaw, and (b) the bylaw is consistent with the official community plan.

The waiving of a Public Hearing does not absolve Council of hearing from the public. Rather it removes what is widely viewed as the last step to communicate with Council in a structured forum, traditionally at Town Hall and as part of a Council meeting. In situations where a public hearing is waived, members of the community continue to have the opportunity to provide their input to Council through letters, emails, and whatever other means the individual chooses. Waiving public hearings has traditionally been reserved for uncontroversial projects with no significant public or Council concern or objection. This has not been one of those projects.

Staff is of the opinion that delaying a public hearing would not be in the applicant’s or the public interest. The situation around COVID-19 is uncertain and could prevent individuals from appearing in public due to their own comfort levels even if some measures are lifted in the future. There is no clear, certain path to a traditional in person public hearing for the foreseeable future. This recovery could conceivably take a year or more.

In staff’s opinion the Town of View Royal must find a solution to holding public hearings to maintain business continuity and to assist in the economic and social recovery from this global pandemic which has affected every aspect of our society.

The questions in front of Council are several:

1. Does Council wish to waive the public hearing for this project, given the consistency with the OCP and the public input already received?
2. Does Council wish to waive the public hearing and instead substitute a non-statutory public process which makes a best effort to engage stakeholders in the confines of social distancing?
3. Does Council wish to suspend all public hearings until a traditional public hearing can be held?
4. Does Council wish to take the option provided by Order M139 and hold a virtual public hearing?

Other Municipalities

Other municipalities in the region are holding electronic public hearings, and these are taking various forms:

• The City of Vancouver is using Telus moderated teleconferences to hold Public Hearings.
• The City of Victoria is using Microsoft Teams videoconferencing and the option of teleconferencing (just telephone) for participants.
• The Town of Colwood is broadcasting Council meetings online and accepting comment and request to speak via email.
• The City of Langford is waiving public hearings which do not require an OCP amendment. Where an application does require a public hearing, it is delegating a Councillor to lead that meeting over a conference call.
• The District of Saanich is following the lead from the City of Vancouver and using Telus moderated teleconferences.
• The Township of Esquimalt is taking a cautious approach, undecided thus far as to whether the process can be fairly held in an electronic format.

Equity and Fairness

The concern around fairness for the public input must be balanced with applicants and the broader development community striving to develop in accordance with the Town’s established processes. The continuation of development activity in the Town is of great economic and social importance, with jobs created and maintained and housing, businesses and critical infrastructure built. Stopping all development for an indeterminate time would be a very significant blow to View Royal and is what Order M139 is designed to prevent. The province has described it as “helping BC’s recovery efforts”.

In terms of evaluating options for consideration, staff used the following criteria:

• Ease of use
• Readily accessible (access to technology and equipment)
• Stability of platform (consideration of bandwidth)
• Ability for public to easily participate/communicate verbally
• All members of the public communicating in the same way (equity)
• Quality of interaction
• Visual elements to the presentation and meeting

Staff recommends that any electronic public hearing be as close as possible to a traditional public hearing in terms of the information presented to and the public input received by Council. A significant part of this is creating a system which is easy and straightforward to use for the public with technology that is accessible and relatively easy to use. While new videoconferencing technologies are sophisticated tools designed for face to face meetings, staff believes that there are still limitations with the technology including:

1. A certain percentage of the public will not have the equipment or bandwidth to use a video conferencing only option
2. There are real or perceived security concerns with some consumer videoconferencing platforms, which will deter some members of the public.

There are two viable option for hosting an electronic public hearing—a teleconference or a combination teleconference/Microsoft Teams meeting.

Below is a table comparing the considered technologies against the evaluation criteria mentioned above:

Beta testing of both options is still needed, however staff are confident in recommending that an electronic public hearing is a viable option for the Town. Staff will continue to evaluate the options and will select one that meets our criteria for hosting a fair and equitable public hearing.

The requirements for notification of an electronic public hearing are similar to an in-person public hearing. Like electronic hearings held by other municipalities, the process that would be followed looks like this:

1. Advertise the Public Hearing as always – mailout to 400m, posting advertisement to two consecutive newspapers, post notices on the Town’s noticeboard and Town’s website.
2. Post all the agenda items on the website as per standard statutory practises.
3. Post reports, presentations, bylaws, and application materials on the Town website, both from Town staff and from the applicant. This could be PowerPoint and potentially video presentation. The Town has the application materials prepared and ready to post.
4. Consider delegating holding the public hearing to one member of Council with other members of Council having the option of listening in.
5. Members of the public wishing to participate in an electronic public hearing be given detailed instructions on how to access the hearing through pre-registration. The participants would be able to hear the meeting but only speak when the moderator allows.

RECOMMENDATION

THAT Council follow the recommendation of the Provincial Ministerial Order M139 and hold an electronic public hearing as described within the report from the Community Planner entitled “COVID-19 PUBLIC HEARING PROCESS OPTIONS 1449 Burnside Road West – Eagles Nest” dated May 12, 2020.

Council will note that under the Bylaws section of the May 19, 2020 Agenda staff are recommending 1st and 2nd reading of the Zoning Bylaw amendment pertaining to Eagle’s Nest development, and that we schedule an electronic public hearing for June 16, 2020.

ALTERNATE RECOMMENDATION

Alternative #1 (staff supports this alternative)

Does Council wish to waive the public hearing and instead substitute a non-statutory public process which makes a best effort to engage stakeholders in the confines of social distancing?

This is potentially the most flexible option, but it will also be the longest and potentially least definite process. Council could post presentations on the Town’s website and request public input over a period of days to Council’s satisfaction before formally waiving the public hearing and before giving the bylaw third reading and adoption (or declining the application).

Alternative #2 (staff does not support this alternative)

Does Council wish to suspend all public hearings until a traditional public hearing can be held?

Were there a near and definite end to this pandemic, staff may recommend this option. Unfortunately, the more vulnerable members of our community may not be comfortable with attending in-person meetings for the better part of a year (or more). Nevertheless, if Council does wish to hold traditional public hearings then the option to delay for a set amount of time (say, until September) and re-assess, that would be the staff recommended way to suspend.

Alternative #3 (staff does not support this alternative)

Does Council wish to waive the public hearing for this project and approve it, given the consistency with the OCP and the public input already received?

Should Council wish to waive the Public Hearing (as the City of Langford is doing) staff feels it can potentially undermine the democratic nature of local government embodied by the public hearing process and does not meet the Town’s historical standard of governance.

SUBMITTED BY J. Davison MCIP RPP, Community Planner

REVIEWED BY L. Chase MCIP RPP, Director of Development Services

ATTACHMENTS

1. Ministerial Order M139