Beedie vs. Vancouver — Developer takes city to B.C.’s top court

A major real estate developer took the City of Vancouver to B.C.’s highest court this week, the latest chapter in a years-long fight over a prominent Chinatown corner.

Beedie (Keefer Street) Holdings v. Vancouver (City) made its way into the B.C. Court of Appeal , more than five years after the vacant corner lot at 105 Keefer St. in Chinatown became a flashpoint in heated debates about one of Vancouver’s most historic neighbourhoods and the future of the city at large.

Beedie Group launched the lawsuit in 2019, about 20 months after Vancouver’s development permit board took the very rare step of refusing a project that conformed with local zoning rules. Beedie’s petition filed in B.C. Supreme Court sought to have the permit board’s rejection set aside and the city ordered to allow the project to proceed.

Coincidentally, this week’s hearing happens to land in court on the heels of the development permit board handing out another rare refusal: Last month, the board turned down another developer’s application for the first time since the 2017 rejection of Beedie’s Keefer proposal.

The rejection of Beedie’s Keefer project in 2017 and the board’s refusal last month, for Bastion Development’s proposal for an 11-storey mixed-use building in Kitsilano, are the board’s only two refusals in about 15 years.

Board applications are different from rezonings. Through a rezoning, a developer seeks to build something other than what zoning allows — which often means taller — which requires council approval in what can be high-profile and contentious decisions.

But the development board, which is made up of three senior city staffers, looks at significant projects that generally comply with existing zoning. Their meetings and decisions aren’t usually widely watched.

A rejection like Bastion’s last month — or Beedie’s one in 2017 — is uncommon because by the time a project reaches that stage, the developer has generally been working for years with different city departments and committees, said Michael Geller, a development consultant who served three terms on the board’s advisory committee. In Bastion’s case, the urban design panel and city staff recommended approval of the 11-storey building.

Sometimes the board might recommend changes to the project, but to simply refuse it — against the recommendations of the city’s own staff — is “highly unusual,” Geller said.

In the years leading up to Beedie’s rejection in November 2017, the developer had brought a series of reworked proposals for 105 Keefer to city hall, and the project’s various iterations had been the subject of raucous protests, marathon council debates, and widespread news coverage.

That 2017 decision was going to be controversial with different segments of the city whichever way it went. Some Vancouverites hailed the rejection as a win for the city, but figures in the development industry warned the decision undermined the city’s own planning and integrity. Gil Kelley — Vancouver’s chief planner until his abrupt departure was announced this week — cast the deciding vote against the Keefer project in 2017.

The ensuing litigation led lawyers for Beedie and the City of Vancouver to appear before a trio of B.C. Court of Appeal judges Tuesday, after Beedie appealed the B.C. Supreme Court’s earlier procedural ruling on the case. In that September judgment, a B.C. Supreme Court judge dismissed Beedie’s application to have the matter referred to trial, instead of being handled through the usual judicial review process.

The city had taken the position that Beedie was looking to “complicate an otherwise straightforward judicial review of the city’s decision,” the B.C. Supreme Court ruling says, seeking to “embark on a fishing expedition to locate documents in support of its baseless allegations of bad faith and procedural unfairness.”

Supreme Court Justice Shelley Fitzpatrick agreed with the city on that point, writing in September: “Beedie has not pointed to any evidence to support allegations of bad faith against the city which should be more fully investigated through full-blown pretrial procedures.”

But Beedie’s lawyers argued Tuesday in the higher court that the judge had erred and the matter should be referred to trial. One of Beedie’s lawyers, Howard Shapray, referred to the raucous nature of the 2017 board meetings, and the “great deal of hostility” from community members opposing the Keefer project.

There were “noisy protests demanding social housing rather than market housing,” Shapray said, “chanting ‘Beedie is greedy’ … no doubt intended to sway the … board.” But, he said, public opposition is not a factor the board is allowed to consider.

The City of Vancouver was not represented in Tuesday’s hearing by staff lawyers, but by a pair from the Vancouver office of Norton Rose Fulbright, a global firm with more than 3,700 lawyers and legal staff around the world.

Asked why city hall retained outside counsel, city spokeswoman Kirsten Langan said: “Unfortunately, the city does not comment on why it retains particular counsel.”

Langan also said the city could not provide any estimate of the cost to the city of this litigation so far, saying the “expenses related to any particular lawsuit are subject to solicitor-client privilege, and therefore cannot be shared.”

The Court of Appeal reserved judgment.

Neither Beedie nor Bastion replied to Postmedia’s requests for comment.

Unlike the massive controversy surrounding Beedie’s board rejection in 2017, last month’s rejection of the Bastion proposal largely flew under the public’s radar. But it has generated confusion and concern in some corners.

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