A decision expected Monday about a controversial building project in Vancouver's Chinatown will be a history-making one.
If the city's development-permit board decides to allow the nine-storey condo proposal by Beedie Development to go ahead next to Chinatown's war memorial on Keefer Street, it will prompt outrage from the opponents who turned out to speak against it last week at an unusual nine-hour hearing.
But if the board were to reject the proposed building, it would be "unprecedented," according to a former city planning director.
That's because the building was redesigned to strictly comply with the Chinatown zoning bylaw, after an earlier version of the building – which needed special permission because it was planned to be higher in exchange for including social housing – was rejected by city councillors.
It's now up to the development-permit board, a group of city top managers, to decide the fate of the proposal, which now has no social housing incorporated.
That group has limited scope. It can't redo zoning or turn down a project except if it hasn't complied with the zoning bylaw.
The board "is not designed to turn it down if [the developer] followed the guidelines. They can't reject it for a political decision," said Ray Spaxman.
Other former development-permit board members and lawyers also said that the board will have to be extremely cautious in its decision or risk a lawsuit by the developer.
The board does have some discretion in its decisions, they say. But, more typically, it is likely to require certain design changes to a building rather than rejecting it outright.
"If there's a staff recommendation for approval and everything is complying, it would be very unusual for them to reject it outright," said Michael Geller, an architect and developer who has been on the advisory committee to the board.
He said the board could set some conditions. However, most of the opponents didn't make arguments about the zoning or changes they wanted to see. They argued that the building should be rejected outright because the site it sits on is too important to the future of Chinatown.
Even when the board sets conditions, those can end up being challenged by a developer.
In a 2005 case that many lawyers look at, Vancouver was sued by a property owner and lost when it tried to get an oil company to remediate a street near the gas station it owned.
Imperial Oil argued, successfully, that the board had gone too far with its conditions.
"If they go overboard, the developer can challenge that. It's not absolute discretion," said municipal-law specialist Olga Rivkin.
On the other hand, she said, there is a grey zone in Vancouver's zoning bylaws. One section says the board has the discretion to refuse a project if it would "adversely affect public amenity."
That's not defined and there are no cases anyone can remember where that section was used.
"The board may consider the effect on public amenities, which may be significant," said Ms. Rivkin.
Mr. Spaxman, the city's planning director in the 1970s and 80s, has remained connected to Chinatown and the Downtown Eastside, sometimes as a city consultant, sometimes as a participant in community efforts to shape planning in the area.
He says the city made a mistake when it approved the overall plan for Chinatown in 2011 that allowed taller buildings in some areas, even though Chinese business groups had pushed for that and many other Chinese community organizations had supported it.
But, he said, the city never did a thorough study to look at the pros and cons of that plan. If that had been done, it could have identified the problems that emerged later.
The Beedie project became a target of opposition the last three years, after three condo projects were built on Main Street that many came to see as too big, out of keeping with Chinatown character, and not providing the kinds of community benefits people thought would come with development.
As well, a new group of young people, many of them second- and third-generation Chinese, has emerged as a force trying to save the traditional Chinatown that they remember.
The opposition has been successful in one way. City staff are working on modifications to the Chinatown zoning plan, something that even original supporters in Chinatown say is needed.
But there are still at least two buildings – the Beedie project included – where developers have applied under the current zoning bylaw.