Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
2004-09-27 Workshop Agenda and Reports
Corporation of the District of Maple Ridge COUNCIL WORKSHOP A GENDA September 27, 2004 9:00 a.m. Blaney Room, f' Floor, Municipal Hall The purpose of the Council Workshop is to review and discuss policies and other items of interest to Council. Although resolutions may be passed at this meeting, the intent is to make a consensus decision to send an item to Council for debate and vote or refer the item back to stafffor more information or clarUlcation. REMINDERS September 27 Closed Council Committee of the Whole Public Hearing; The ACT September 28 Council, The ACT (Studio) September 30 Special Council, The ACT Following Workshop 1:00p.m. 7:00 p.m. 7:00p.m. 7:00 p.m. - 9:00 p.m. 1 ADOPTION OF THE A GENDA 2. MINUTES - September 13, 2004 3 PRESENTATIONS AT THE REQUEST OF COUNCIL 4 UNFINISHED AND NEWBUSINESS 4.1 Lidstone Young Anderson Legal Seminar . Roles and Responsibilities of Council • Role of Approving Officer • Public Hearing Procedures • Private Property rights Council Workshop 1 September 27, 2004 Page 2 of 3 4.2 Developers Process Review Presentation of the Consultant's Report 4.3 Fireworks Task Force Report Staff report dated September 7, 2004 recommending that Council endorse the multi- faceted strategy recommended by the Fireworks Task Force. 4.4 UBCM Convention Debriefing 5. CORRESPONDENCE The following correspondence has been received and requires a response. Staff is seeking direction from Council on each item. Options that Council may consider include: Acknowledge receipt of correspondence and advise that no further action will be taken. Direct staff to prepare a report and recommendation regarding the subject matter. Fonvard the correspondence to a regular Council meeting for further discussion. Once direction is given the appropriate response will be sent. 6. BRIEFING ON OTHER ITEMS OF INTEREST/QUESTIONS FROM COUNCIL 7. MA TTERS DEEMED EXPEDIENT 8. ADJOURNMENT Checked bi: ' Date: /' - Council Workshop September 27, 2004 Page 3 of 3 Rules for Holding a Closed Meeting A part of a council meeting may be closed to the public if the subject matter being considered relates to one or more of the following: personal information about an identifiable individual who holds or is being considered for a position as an officer, employee or agent of the municipality or another position appointed by the murncipality; personal information about an identifiable individual who is being considered for a municipal award or honour, or who has offered to provide a gift to the municipality on condition of anonymity: labour relations or employee negotiations; the security of property of the municipality; the acquisition. disposition or expropriation of land or improvements, if the council considers that disclosure might reasonably be expected to harm the interests of the municipality; law enforcement, if the council considers that disclosure might reasonably be expected to harm the conduct of an investigation under or enforcement of an enactment; litigation or potential litigation affecting the municipality; an administrative tribunal hearing or potential administrative tribunal hearing affecting the municipality, other than a hearing to be conducted by the council or a delegate of council the receiving of advice that is subject to solicitor-client privilege, including communications necessary for that purpose; (I) information that is prohibited or information that if it were presented in a document would be prohibited from disclosure under section 21 of the Freedom of Information and Protection of Privacy Act; (k) negotiations and related discussions respecting the proposed provision of a municipal service that are at their preliminary stages and that, in the view of the council, could reasonably be expected to harm the interests of the municipality if they were held in public; (1) discussions with municipal officers and employees respecting municipal objectives, measures and progress reports for the purposes of preparing an annual report under section 98 [amival municipal report] a matter that, under another enactment, is such that the public may be excluded from the meeting; the consideration of whether a council meeting should be closed under a provision of this subsection of subsection (2) the consideration of whether the authority under section 91 (other persons CORPORATION OF THE MAPLE RIDGE incorporated 12 September, 1.874 TO: Her Worship Mayor Kathy Morse DATE: September 7, 2004 and Members of Council FILE NO: FROM: Chief Administrative Officer ATTN: Council Staff Workshop SUBJECT: Fireworks Task Force Report EXECUTIVE SUMMARY: As directed by Municipal Council, the Maple Ridge Fire Department established an Advisory Task Force to look into the possibility of a fireworks ban. This Task Force was comprised of local stakeholder groups including RCMP, BC Ambulance, School District 42, Municipal Bylaws, Park and Rec. and the Chamber of Commerce. After looking into the positive & negative impacts of the use of fireworks, the task force has recommended a multi-faceted strategy with four components: Public Education • The Fire Department work with School District No. 42 to develop public education programs aimed at grades 7 through 9. • Develop a program to educate purchasers on the safe discharge of fireworks. 2. Regulations • Amend our fireworks bylaw to ensure that: Firework.products, that have little or no visual effect and whose sole purpose is to emit noise, are not sold locally and Effective January 1, 2005 7 the permit fee be increased to $500.00. 3. Community Events • The Fire Department, in conjunction with the Parks & Leisure Services Department, research the feasibility of having a community sponsored fireworks event. 4. Monitoring • Continue to monitor the use of fireworks on an ongoing basis and make further recommendations on their use as necessary. RECOMMENDATION: That Council endorse the multi-faceted strategy recommended by the Fireworks Task Force. 4.3 DISCUSSION: a) Background Context: The use of consumer fireworks continues to be a major contributor to increased property damage and security costs during the Halloween season. The current Bylaw allows the .legal use of consumer fireworks on Halloween evening on private property. However the police and fire- departments respond to numerous situations where minors are responsible for the discharge of fireworks. This is also a major problem for the local school district. In 2003 the following changes were made to the Fireworks Bylaw: • Single or package sales of roman candles was restricted, making these products available only in family packs and limiting roman candles to 25% of the family packages. • Screechers and bottle rockets were added to the list of prohibited "firecrackers". The following additional changes came into effect January 1, 2004: • The sale of Fireworks from temporary structures and from any structure that does not have direct access to the outdoors was prohibited. • A fee of $150.00 for the issuing of a Fireworks Vendors Permit was established. This fee to be used to cover the costs of inspections and enforcement. • Identified that all costs of mitigating a fire, which has resulted from the misuse of Fireworks or firecrackers, shall be the responsibility of the person or persons responsible for the discharge of the Fireworks or Firecrackers. • Identified that the cost of mitigating fires will be assessed at the rate of $300 per hour for every, fire truck and $30 per hour for every fire fighter. Several communities around the Province have banned the sale and use of fireworks. In the Lower Mainland, this includes District of Mission and the City of North Vancouver. Most other municipalities have since changed their bylaws placing limitations.on the sale of family fireworks. Quite a few communities have also increased the vendors' license fee anywhere from $500.00 to $1500.00. Maple Ridge has increased its fee to $150.00. Here are the results of a recent survey that we did. OLD FEE 2004 PERMIT FEE Roman Candle Restrictions Langley Township $10 $1500 No Roman Candles - Abbotsford $175 $1500 No Roman Candles - Pitt Meadows $100 $100 No single sales— 25% in family pack - Port Coguitlam $150 $500 No Roman Candles Maple Ridge $0 $150 No single sales - 25% in family pack - Mission No Sales No Sales No Sales - the local school district. Their consensus is that we need to educate and keep the nuisance fireworks out of the hands of minors. The youth council also stated. as we have heard from other members of the public, that they like, and do attend the neighbourhood parties that include family fireworks, hotdogs, cocoa etc. V The stakeholders indicate that: • Fireworks that give a loud report only, with little or no pyrotechnic effect, need to be eliminated • That property sizes are really too small for citizens to safely ignite fireworks on their own properly • That a district wide event would not go over very well, as most people prefer to stay closer to their neighbourhood. • Community-sponsored event could be enabled to set up in the smaller community boroughs such as Albion, Hammond, Downtown-Haney, Yennadon, Websters' Corners and Whonnock for example. More and more seet parties are springing up and are even being advertised every year. b) Desired Outcome(s): These recommendations are designed to increase public safety and to reduce proprty damage that results from the use and abuse of fireworks. C) Strategic Alignment The recommendations contained in this report are aligned with Council's desire for a Safe and Livable Community. The recommendations are intended to develop preventative as opposed to remediation initiatives in the delivery of fire and police services. Citizen/Customer Implications: Last year, our fireworks bylaw was amended to require fireworks to be sold from permanent structures. The license fee was also increased to $150. These changes will take effect this year. The local business community as a whole has indicated that fireworks sales have little impact to their yearly bottom line. What they gain on sales they lose through theft or vandalism related to fireworks. Most only do it to stay in competition with others. We are recommending that the increase in the fee to $500 be effective January 1, 2005, to give adequate notice. Prohibiting the sale of nuisance type fireworks such as screecharoos, humaroos and air bombs has also been recommended.. These types of fireworks are largely misused. Many bf the fireworks seizures that are made involve these typoes of fireworks that are modified and therefore pose additional safety concerns. Policy Implications: The recommendations outlined herein will require minor amendments to our fireworks bylaw. 0 Alternatives: Continue as we are now with the current bylaw and enforcement. Further restrict the sales of fireworks so a gradual progression to eliminating sales altogether is reached as is the trend in the lower mainland. Revise the Fireworks Bylaw to restrict the use of fireworks to public displays only, supervised by Licensed Fireworks Technicians. The sale and use of consumers' fireworks would become illegal within Maple Ridge. g) Financial Implications: The recommendations outlined herein can be accommodated within existing buiget allocations. Additional monies generated by the fees will go towards public safety education programs.. io CONCLUSIONS: The sale and use of consumer fireworks at Halloween continues to cost the taxpayers of Maple Ridge by way of increased Police and Fire-Fighter staffing and damage to municipal and school property. It also results in damage to personal property, and personal injury. The business community indicated by way of survey that there is no real financial benefit in the sales of fireworks to their bottom line, conversely out of pocket expenses do result from related vandalism. The negative impact of fire works can be diminished by: • Increased public education of the hazards of fireworks. • Increased enforcement of the illegal sale and discharge of fireworks. Restricting the type of fireworks available for sale and controlling the location and timing of sales. Pursuing cost recovery for response 10 fireworks incidents. In the long term the lower mainland region is slowly limiting the sale and use of family fireworks. Currently there does not appear to be an appetite to make changes on a regional basis as a whole but again this is happening on a municipality/city by municipal ity/c ity basis. This negates the argument that if we have tighter restrictions than neighbouring communities it will have no effect. Our "home grown" solution to address the problem is at the leading edge of change in promoting a safe and livable community that is being mirrored by our neighbours. (',1 t Prepared by: 'Iark Smitton, Assistant Fire Chief Approved by: eter G rootendorst, Fire Chief Approved by: 1iaul Gill, General Manager .-'-- - Concurrence:, J.L. (Jim) Rule •/ Chief Administrative Officer MS:ch f LIDSTONE, YOUNG, ANDERSON THE LEGAL ROLE OF MAYORS AND COUNCILLORS December 6, 2002 By Bill Bu/iolzer LIDSTONE, YOUNG, ANDERSON The Legal Role of Mayors and Councillors Page 99 THE LEGAL ROLE OF MAYORS AND COUNCILLORS: NATURAL PERSONS PLUS Debates about giving "natural person" powers to local governments remind some of us of the reverse situation: there are some "natural persons" in the municipal law context to whom the Legislature has given powers that go beyond those of a natural person. These include councillors and mayors elected under the Local Government Act. This paper explores some of the special powers and roles that councillors and mayors have, principally under the Local Government Act but under several other provincial and federal laws as well. The paper does not deal extensively with regional directors and chairs of regional boards. As a general rule, the legal role of regional directors vis a vis their regional board parallels that of councillors vis a vis their municipal council. The role of a regional board chair is more limited than that of a mayor; some of these differences are discussed in the paper. I. COUNCILLORS As individuals, councillors are not accorded a very significant role under the Local Government Act or any other legislation. The Local Government Act gives councillors very few individual rights or powers that are not possessed by citizens generally. An example is the fact the mayor's expulsion power, discussed later in this paper, may be exercised to expel a councillor who is guilty of improper conduct in a council meeting; councillors have no special rights in this regard. The proposed Community Charter (s. 100) acknowledges the role of councillors, by providing a brief and uncontroversial list of "responsibilities" of council members. Receiving Notice of Council Meetings One of the rights of council members is the right to be provided individual notice of special council meetings under s.223. The requirement for this individual notice can only be waived by unanimous vote of all of the members of council. Thus, a bare quorum of the council cannot lawfully convene, waive notice of special meeting, and hold a special meeting, and thereby exclude from those particular council deliberations any member of the council. Calling Special Council Meetings Another individual power of the councilior is the power together with one or more other councillors, under s.224 of the Local Government Act, to request the mayor to call a special council meeting and, if the mayor within the next 24 hours refuses or neglects to make arrangements for the meeting, to call the special meeting themselves. Two or more council members may also call a special meeting if the mayor is "absent". What it means for the mayor to be "absent" for that purpose is an interesting question. It appears that two councillors cannot just wait for the mayor to leave the municipal hail and then purport to exercise this power; the mayor must be more "absent" than that, and likely must be absent from the municipality, or at least his or her whereabouts must be unknown. This prevents the mayor from bringing the conduct of the municipality's business to a halt by simply being unavailable to call a special meeting. LIDSTONE, YOUNG, ANDERSON The Legal Role ofMayors and Councillors Page 100 Speaking and Voting at Council Meetings It is only when they are assembled in a quorum of the municipal legislative assembly or "council", at a duly convened meeting, that councillors are endowed with significant powers. (In this setting, the mayor is a member of the council and everything that is described in this paper as the legal role of a councillor applies equally to the mayor.) The powers that they have when assembled as a quorum in a council meeting are what make councillors "natural persons plus"; each of them has powers accorded them by the Local Government Act that are not available to other natural persons who are not councillors. Central among these are the right to be recognized by the mayor or other person presiding at the meeting for the purpose of speaking; the right to put motions before the council; the right to appeal to the other council members present any decision on a point of order made by the mayor; and the right to vote in council proceedings. The conduct of council proceedings is dealt with only sparingly in the Local Government Act, so the legal rights and obligations of council members at such meetings fall to be determined mainly by meeting procedure bylaws that must be adopted under s.235. Most such bylaws deal with the manner in which council members must conduct themselves in order to be recognized for the purpose of speaking; how motions must be put before the council; and how votes are taken. One right that a councillor does not have is the right to abstain from voting if they are present when the vote is taken; for many years the Act has provided that a council member who is present at a meeting and who does not vote on a question is deemed to have voted in the affirmative. This makes it impossible for the number of votes recorded as having been cast on a particular question to be fewer than the number of council members actually present. Councillors (including mayors) abstaining should therefore be taken to intend their abstention to be recorded as an affirmative vote. Councillors who feel they ought not to vote on a question on account of a conflict of interest are required by the statute to make a declaration under s.23 1(2), state the reason for their declaration, and leave the meeting. This is the only way that a councillor's deemed affirmative vote on a question can be avoided. Councillors speaking at council and committee meetings have the privilege of speaking words that in another forum would be defamatory, provided that the words are not spoken maliciously, that is, spitefully, with ill will, or for a motive other than the proper conduct of the business of the municipality. For example, if a councillor believes that a certain lawyer is not fit to practice law, the councillor may state that with impunity in a council discussion on procuring legal services from that lawyer, even though if the same statement was made in the local café it might attract a defamation claim. This defence of "qualified privilege" is more limited than the absolute privilege that attaches to statements of elected officials in the House of Commons or the Legislative Assembly. Councillors therefore have a duty to ensure that the qualified privilege defence will in fact cover any statements they make in council proceedings that may have defamatory content. The statutory immunity of councillors from actions for damages (s.287) does not apply to actions in libel or slander, and a councillor should not expect that the council would necessarily indemnify them in relation to a defamation claim in which the defence of qnalifred..pñyiiege has failed, as that could imply that their conduct in council was improper. LIDSTONE, YOUNG, ANDERSON The Legal Role of Mayors and Councillors Page 101 Acting as and for the Mayor Councillors are eligible for appointment as a deputy mayor and as an acting mayor; each of these appointments is made by the council, and not the mayor. The office of deputy mayor, while identified in s.220, is not elaborated on to any great extent in the Local Government Act. It is implied in s.227 that a deputy mayor may preside at a council meeting if the mayor is absent. In fact, deputy mayors may carry out all of the functions assigned to mayors under provincial legislation as a result of s.23 (3) of the Interpretation Act, which is as follows: Words in an enactment directing or empowering a public officer to do something, or otherwise applying to the public officer by his or her name of office, include a person acting for the public officer or appointed to act in the office and the deputy of the public officer. The Interpretation Act goes on to specify that this applies whether or not the office of the public officer is vacant. Accordingly, a deputy mayor can lawfully exercise all of the powers of the mayor all of the time, with the result that a municipality with a deputy mayor has, for all practical purposes, two mayors. Municipalities considering making such an appointment should therefore carefully consider the consequences. To the extent that a few of the powers of the mayor arise under federal law, note that s.24 of the federal Interpretation Act is to the same effect. An acting mayor, on the other hand, has the powers of a mayor under s.220 only during the absence, illness or other disability of the mayor. The council has an obligation under s.220 to appoint an acting mayor if the office of mayor becomes vacant. An acting mayor must also be appointed to preside at a council meeting if the mayor, any appointed deputy mayor and any already appointed acting mayor are absent. Many councils appoint acting mayors on a rotating basis, so that there is automatically an acting mayor available if the mayor is absent from the community or is unable to attend an event at which the mayor's presence is expected. Sitting on Select and Standing Committees Councillors are, along with members of the public, eligible for appointment to standing committees of council established and appointed by the mayor, at least half of whose members must be council members, and for appointment to select committees appointed by the council itself; which must contain at least one council member. TO the extent that the council has delegated any of its powers to such committees, which it may do under s.176(l)(e), these committee roles may be significant. The meeting procedure bylaw enacted under s.235 must establish procedures for the conduct of the meetings of these committees. Sitting on the Local Court of Revision The local court of revision sitting to hear complaints respecting a parcel tax assessment roll and to authenticate the roll is comprised of all of the council members, unless the council appoints other persons to perform this duty. The activities of the court are governed by Part 10.1 of the Local Government Act and certain provisions of the Assessment Act that are made applicable by LIDSTONE, YOUNG, ANDERSON The Legal Role of Mayors and Councillors Page 102 s.361.4 of the Local Government Act. Each member of the court must take an oath, and the court must post a daily schedule of complaints that it will hear at the place where it meets. The chair of the court may determine the procedure to be followed at its proceedings. Each member of the court must authenticate the roll by signing the prescribed authentication certificate. Hearing from the Public on Bylaws Under Parts 26 and 27 Parts 26 and 27 of the Local Government Act establish a special quasi-judicial role for members of council in relation to the adoption of official community plan and zoning bylaws and certain kinds of heritage conservation bylaws: the local government must hold a public hearing on the bylaw. The holding of a hearing may be delegated to one or more council members, and if it is the delegate must report the views expressed at the hearing, either orally or in writing, before the local government adopts the bylaw.. Under s.890(3.1), the chair of the public hearing may establish procedural rules for the conduct of the hearing. Any member of council is eligible to act as the chair of a public hearing. It is clear that not all of the members of the council have to participate in a hearing in order for the hearing to be validly held, since the Act makes provision for a council member who was not present to vote on the bylaw once they have received an oral or written report of the hearing. It can be inferred, from the fact that the Act conceives of the holding of a hearing by one board member or councillor as a "delegation" of the hearing, that a hearing that has not been delegated must be held by a majority of the members of the council. The duty of councillors sitting at a public hearing is to hear; that includes a duty to be "amenable to persuasion" at the hearing as to the merits of the bylaw under consideration. This entails being in such a frame of mind that representations made at the hearing are capable of moving the individual councillor off previously held opinions on the merits of the bylaw, including previously held opinions that may have been made a matter of public record. To preserve a reasonable hearing climate, Councillors should not ask unduly hostile or provocative questions of persons making representations, turn their backs, roll their eyes, or otherwise indicate a non- neutral attitude to what they are hearing. Councillors are under no duty to explain to the public present at a hearing how they intend to vote, or to answer questions from the public about the bylaw under consideration. Once the hearing has closed, the case law indicates that the council as a body cannot entertain further representations from those in favour of or opposed to the bylaw before votes on third reading and adoption are held. Individual councillors are under no duty to close their eyes and ears to information concerning the merits of the bylaw during this period. To the extent that the receipt of such information by an individual councillor can raise a doubt as to whether the Council as a body has received such information, councillors should avoid receiving it if they reasonably can. II. REGIONAL BOARD DIRECTORS The powers of regional directors are very similar to those of councillors, with the minor difference that two directors have the authority to call a special meeting without first asking the chair to do so. LIDSTONE, YOUNG, ANDERSON The Legal Role of Mayors and Councillors Page 103 III. MAYORS The office of the mayor is an ancient office, apparently originating in the fifth century in Western Europe and imported to England in the twelfth century by the Normans. Early English mayors also had duties as magistrates, which may have led to the practice of addressing mayors as "Your Worship", a form of address used in Magistrate's Court. Attached to this paper is a summary of the history of the office of mayor taken from the website of the City of Nottingham, England. Despite its lofty origins over 800 years ago, the office of mayor in England today seems very similar to the office of Canadian and British Columbia mayors. (Particularly interesting in the context of Community Charter initiatives is the discussion in this summary of the negotiations on the contents of the City Charter that followed a change in the monarchy. Central government anxiety about the scope of municipal powers is clearly as old as municipalities themselves.) British Columbia and most other Canadian jurisdictions have what political scientists refer to as "weak mayor" systems. That is, mayors under local government enabling legislation do not have significant substantive powers that they do not have in common with other members of the municipal council. While mayors are endowed with a few special powers, these powers are not the local government equivalent of the powers of the head of the legislative council at the provincial or federal level. They are mainly ceremonial or honorific. Those that have substantive content, tend to be of the type that can only be exercised in emergencies, in circumstances where it is desirable that some ascertainable individual be "in charge" to make certain decisions or to act as the agent of the municipal corporation. Mayors in many U.S. jurisdictions, by contrast, have the authority to appoint a "cabinet" of department heads, and thereby to put their own political stamp on the administration of their municipality. This of course leads to wholesale changes in civic bureaucracies when a new mayor is elected. Mayors in "strong mayor" U.S. jurisdictions also prepare and administer the city budget, and generally play a strongly "hands-on" role in the day-to-day administration of the city. A. Mayors as Councillors The status and powers of the mayor as a member of council are not always well understood. Section 207 of the Local Government Act makes it clear that the mayor is a member of the municipal council; the councils of municipalities of various sizes are said to consist of "a mayor and" a specified number of councillors. Further, s.21 8, which gives mayors many of their special powers, begins with the words "in addition to the mayor's powers and duties as a member of council". As members of council, mayors have the right to make motions and vote in council proceedings even though they are presiding, and it is doubtful that a meeting procedure bylaw under s.235 can properly deprive a mayor of these rights, as they are matters of substance and not procedure. The procedure bylaw could, however, properly require the mayor to relinquish the chair when making a motion or speaking to a motion, as these are procedural matters. Mayors, as members LIDSTONE, YOUNG, ANDERSON The Legal Role of Mayors and Councillors Page 104 of council, are subject to the same rules as all councillors with respect to abstentions; if they are present and do not vote on a question, they are deemed to have voted in the affirmative. Mayors do not have a second, deciding vote under the Act and a meeting procedure bylaw cannot properly endow a mayor with a deciding vote or bar the mayor from voting except to break a tie. The composition of municipal councils is determined by s.207 so as to produce an uneven number of votes when the mayor's vote is included, and thereby diminishes the likelihood of a tie vote; further, s.230 specifies that a question in respect of which votes in favour and against are equal is lost. Many mayors, as a matter of practice, do not put motions, and second motions only when there is no other seconder, to ensure that the motion is dealt with on its merits and not lost for want of a seconder. This may result from a wish to be seen to be even- handed in presiding over the meeting, but could seriously interfere with the performance of other mayoral duties discussed below, notably the duty to recommend legislation. Similarly, many mayors do not vote except when it is necessary to break a tie. Over time these approaches may lead to an incorrect impression that the mayor does not have the power to make motions, or to vote except in the event of a tie. B. Special Mayoral Powers under the Local Government Act Beyond his or her powers as a member of the council, the mayor has a few special powers by virtue of specific provisions in the Local Government Act. The mayor is the "head and chief executive officer of the municipality" under s.218(l). What this means isn't entirely clear, but it does suggest that, beyond the mayor's legislative powers, this member of council has executive or administrative duties. This is elaborated on in s.21 8(2)(d): the mayor must direct the conduct of officers and employees and direct the management of municipal business and affairs. In any "organization chart" of the municipal administrative structure, the mayor would therefore be at the top. Recommending Legislation The mayor is expected to play a leading role in determining the legislative agenda of the council. Under s.2 1 8(2)(b) the mayor has the duty to recommend bylaws, resolutions and measures that, in the mayor's opinion, may assist the peace, order and good government of the municipality in relation to the powers conferred on the council by an enactment. In many municipalities, this power is exercised by means of consultation between administrative staff and the mayor on the contents of the agenda for each council meeting. The reference to the "peace, order and good government of the municipality" mirrors the wording of the federal "residual power" under the Constitution Act, 1867 under which the federal government has enacted a great deal of legislation. But it should not be taken to provide any substantive legislative power to municipalities, in view of the restrictive words that follow it. Inspecting, Directing and Suspending Staff The mayor has a duty under s.218(l)(d) to inspect and direct the conduct of the municipality's officers and employees and, if considered necessary, to suspend an officer or employee. Such a suspension must be reported to the next meeting of council, at which the couiicil may iethstate LIDSTONE, YOUNG, ANDERSON The Legal Role ofMayors and Councillors Page 105 the employee, confirm or extend the suspension, or dismiss the employee. The reservation of the dismissal option to the council confirms that the mayor has no power to dismiss an officer or employee on his or her own. The mayor also has a duty to see, to the extent that the mayor's power extends, that negligence, carelessness and violation of duty by an officer or employee is prosecuted and punished. The suspension power could clearly be used to punish officers and employees for these shortcomings; the mayor could also introduce resolutions to dismiss officers and employees, or impose other disciplinary measures as "chief executive officer", in the mayor's performance of this duty. Mayors must be cautious, in carrying out this duty, to respect the terms of the employment contract of their chief administrative officer. Ordinarily, the appropriate course of action for a mayor carrying out the duty to inspect and direct staff will be to do so through the CAO and not directly. For example, if the mayor considers that a municipal employee is being negligent, careless, or violating their duty, the mayor ought to bring that to the attention of the CAO, whose job description would ordinarily include dealing with such matters, rather than dealing directly with the employee. Repeated mayoral intervention in the day-to-day management of municipal staff could be a breach of the CAO's employment contract, perhaps as a form of constructive dismissal. CAO employment contracts should acknowledge the mayor's statutory duties so that the mayor can perform his or her statutory duties without provoking a breach of the contract claim by the CAO. Appointing Stan ding Committees Mayors have the power to both establish standing committees under s.239, and appoint their members, including persons who are not council members. (Select committees, on the other hand, are established and appointed by the council itself.) The power to establish and appoint standing committees may have become more significant, with the express power of councils to delegate some of their powers to their committees under s.176. Calling Special Council Meetings The authority of council members under s.224 to request the mayor to call a special meeting presupposes that the mayor has the power to do that. Such a power is not expressly set out in the Local Government Act, but it is reasonably to be implied from the mayor's duty to recommend bylaws, resolutions and measures for the peace, order and good government of the municipality. Issuing Summonses A little-used mayoral power is the issuance of summonses under s.240 to persons who the council or one of its committees wishes to examine under oath regarding matters about the administration of the municipality. Presiding at Meetings The most visible role of a mayor is their presiding role; generally, the mayor presides at all council meetings and public hearings. In that capacity the mayor had a duty to preserve order and LIDSTONE, YOUNG, ANDERSON The Legal Role ofMayors and Councillors Page 106 to decide points of order, and has the power to expel and exclude a person they consider guilty of improper conduct. There is a broad range of "points of order" that may arise at council meetings, all of which the mayor must decide. Mayors often rule on procedural points of order raised by members of council by having the municipality's legislative clerk consult the meeting procedure bylaw or the external rules (Robert's or Bourinot's) incorporated into that bylaw. Broader points of order (for example, a council member has put a motion before council on a question that is not within its jurisdiction and another member has raised that fact as a point of order) may also be the subject of consultation with municipal staff before the mayor decides the point. In either case, the mayor's decision is subject to appeal to council, to be deèided by majority vote. Reconsidering Questions The mayor's special role in determining the legislative agenda of the council is reinforced by the mayor's special power under s.219 to return a question to the council for reconsideration. The ordinary parliamentary rules about reconsideration impose limits on who may initiate reconsideration (usually it has to be someone who voted on the prevailing side on the question) and some meeting procedure bylaws require a reconsideration motion to be seconded (Robert's Rules does not). A mayor in B.C. may on his or her own bring a bylaw, resolution or other proceeding of the council back for reconsideration regardless of how the mayor may have voted on the question, and without the support of any other councillor. The mayor is required to give reasons for returning the question and the council must, as soon as convenient, consider the mayor's reasons and either reaffirm the original decision or reject question. Signing Minutes and Bylaws The mayor or other council member presiding at the meeting, or at the next meeting at which the minutes are adopted, must sign the minutes of council meetings under s.236. Under s.257 the mayor or other council member presiding at the meeting at which a bylaw was adopted must sign the bylaw. The mayor's signature on a bylaw does not signify the mayor's approval of it; it is a formality, and the mayor cannot prevent a bylaw from coming into force by refusing to sign it, because a bylaw comes into force on the date that it is adopted (unless a later in force date is specified in the bylaw) and not on the date that the mayor signs it. A court order can be obtained to force a mayor to sign a bylaw that the council has adopted, if he or she refuses to sign it. Resolving Interm uizicipal Questions Unless a particular procedure is provided by legislation, the mayors of the municipalities concerned must decide all "questions" between municipalities under s.221 and, if the mayors cannot agree, the Supreme Court must decide them. An example of a question for which legislation provides another dispute resolution process is the process in s.536 that gives the Minister of Transportation jurisdiction to resolve disputes in relation to boundary highways. New Duties Under the Gornin unity Charter The proposed Community Charter tinkers with the wording of s.2 18 of the Local Government and LIDSTONE, YOUNG, ANDERSON The Legal Role ofMayors and Councillors Page 107 "reflecting the will of council" - surely the essence of the art of politics. The Charter refers to the mayor "directing the management of the policies and programs of the municipality respecting its services and other activities", which might be thought to describe the responsibility of the CAO rather than the mayor. Again, the idea is presumably that this will be done via the CAO and not directly, except perhaps in very small municipalities. C. Mayoral Powers under other Provincial Legislation Declaring a State of Local Emergency For the purposes of the Emergency Program Act, the mayor is the "head of a local authority". In that capacity, the mayor may under s. 12 at any time that he or she is satisfied that an emergency exists or is imminent in the municipality, declare a state of local emergency relating to all or any part of the municipality. Such a declaration may also be made by bylaw or resolution of the council. The declaration of a state of local emergency must identify the nature of the emergency and the part of the municipality in which it exists or is imminent. If the mayor makes the declaration, he or she must, before making it, use best efforts to obtain the consent of the other members of the council to the declaration and must, as soon as practicable after making the declaration, convene a meeting of the council to assist in directing the response to the emergency. Inimediately after making a declaration of a state of local emergency, the mayor must forward a copy to the minister responsible for the Emergency Program Act, and cause the details of the declaration to be published by a means of communication mayor considers most likely to make the contents of the declaration known to the population of the affected area. Obeying Utilities Commission Orders Under s. 106 of the Utilities Commission Act, the mayor and each other member of the council of a municipality that fails or refuses to obey an order of the commission made under the Act commits an offence. The Commission has jurisdiction to make a range of orders concerning such matters as the use of highways by public utilities. Taking Statutory Declarations The provincial Evidence Act permits .a mayor to receive the solemn declaration of any person voluntarily making it before him or her in attestation of the execution of any writing, deed or instrument, or of the truth of any fact, or of any account rendered in writing (known generally as a "statutory declaration"). The Evidence Act makes the municipal clerk and the deputy clerk commissioners for oaths for taking affidavits for the purpose of exercising the powers and performing the duties of their office. The mayor's power to take statutory declarations is not so restricted but may be exercised for any purpose. LIDSTONE, YOUNG, ANDERSON The Legal Role ofMayors and Councillors Page 108 Chairing the Police Board Under the Police Act, the mayor of a municipality that is required to have a municipal police force is the chair of the police board. Municipal councillors are prohibited from being appointed to police boards. Accepting Service of Summonses The Offence Act requires service of a summons for prosecution of a municipal corporation for an offence to be served on either the mayor or the clerk. The mayor therefore has the capacity to accept service of a provincial court summons. The Local Government Act requires most other legal process to be served on the clerk. Sitting on the Railway Board Under s.94 of the Railway Act, the mayor of any municipal corporation in British Columbia holding stock in any railway company incorporated under the Act to the amount of $20 000 or more is, while the mayor holds office, one of the directors of the company, in addition to the number of directors elected under the Act. Municipalities on the line of the British Columbia Railway may be hopeful that this provision remains in the Act if the provincial government permits shares of the railway to be sold on the open market. The approval of the Inspector of Municipalities must, of course, be obtained before a municipality acquires shares in a corporation including a railway company. D. Mayoral Powers under Federal Legislation Taking the Oath of Chamber of Commerce Officers Under the federal Boards of Trade Act, which establishes the corporate structure of boards of trade and chambers of commerce, the officers of these organizations must take their oath of office before the mayor of the municipality in which the organization is established. Accepting Service of Federal Tickets Under s. 10 of the federal Contraventions Act, a ticket for a ticketable federal offence may be served on a municipal corporation by leaving a copy of it with the clerk or the mayor. Reading the Riot Act Section 67 of the Criminal Code is the authority for the mayor to "read the riot act". It is as follows: A justice, mayor or sheriff, or the lawful deputy of a mayor or sheriff, who receives notice that, at any place within his jurisdiction, twelve or more persons are unlawfully and riotously - - assembled together shItgttharptat ant after-approaeh4ng--as - LIDSTONE, YOUNG, ANDERSON The Legal Role ofMayors and Councillors Page 109 near as safely he may do, if he is satisfied that a not is in progress, shall command silence and thereupon make or cause to be made in a loud voice a proclamation in the following words or to the like effect: Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for lfe. GOD SAVE THE QUEEN. Every mayor, deputy mayor and acting mayor has presumably memorized this proclamation or has a copy in the glove compartment of his or her car, in case an occasion to make it arises. It may comfort mayors to know, that it is an offence under s.68 of the Code, also punishable by life imprisonment, for any person to oppose, hinder or assault wilfully and with force a mayor who begins to make, is about to begin to make or is making this proclamation. What may not be so comforting is that s.69 of the Criminal Code makes it an offence for a mayor who receives notice that there is a riot within his or her jurisdiction, to fail without reasonable excuse to take all reasonable steps to suppress the riot (including, presumably, complying with s.67 by reading the "riot act" in a loud voice). The maximum penalty in this case is two years. What constitutes a "riot"? According to s.64 of the Criminal Code, a riot is an unlawful assembly that has begun to disturb the peace tumultuously. IV. CHAIRS OF REGIONAL BOARDS Section 792 of the Local Government Act gives the chairs of regional boards the same powers and duties in relation to the regional district as the mayor of a municipality has under ss.218 and 219; these mayor powers have already been discussed. Section 218 includes the powers to recommend legislation and to direct the conduct of officers and employees, and s.219 if the reconsideration power. Regional boards must elect vice chairs, who have all the powers of the chair during the absence, illness or other disability of the chair. Section 793 makes applicable to regional districts and their chairs the mayoral powers discussed earlier in relation to presiding at meetings and deciding points of order. Regional board chairs must sign minutes and bylaws, may establish and appoint standing committees, and may summons witnesses to give evidence under oath to such committees. Most of the other powers of mayors under federal law and provincial law other than the Local Government Act do not attach to regional board chairs. Federal "tickets" may be served on the chair of a regional board. The chair has the power to declare a state of local emergency in respect of an electoral area, since for the purposes of the Emergency Program Act the "head of a local authority" means, for an electoral area in a regional district, the chair of the board of the regional district, or, in the chair's absence, the vice chair. LIDSTONE, YOUNG, ANDERSON The City of Nottingham Council House - a tour of Nottingham's Counc... http://www.nottinghamcity.gov.uk/coun/history/mayor/2.as 1r NottinghamCityCouncilOnline 41 ww.rjorrinm.goyjk Home I Log-in The Mayor The words "mayor" and "major" derive from the comparative (major) of the latin word "magnus" (great). The office of Mayor, together with the Domesday Book and the feudal system, were importations by the Normans of an office which had existed on the Continent at least since the 5th. Century. The first English Mayor was the Mayor of London appointed in 1189 by Richard I. The first Nottingham Mayor was appointed by Royal Charter of Edward I in 1284; the office, therefore, dates from 12th. February, 1284, or, more accurately, from the following Michaelmas, when the first election would take place. The wording of this Charter sets out clearly and simply the reason for making the appointment and the duties to be attached to the office. It says: "We have granted . . .for the alleviation of the estate of the Burgesses and other men (of Nottingham) that they shall henceforth have ... a Mayor (unum majorem) from amongst themselves whom the Burgesses... shall elect with unanimous consent and will, to be set over the bailiffs and others of the same Borough in everything pertaining to the government and advantage of both Boroughs of the same town". The phrase "set over, the bailiffs and others" was no idle one, but meant exactly what it Other history files... said, giving to the Mayor a very considerable power, which, through the following 600 years, successive holders of the office continued to exercise. The office carried with it Council House executive powers over the finances and affairs of the Corporation, and in these olden History days, the Mayor carried out many of the duties now attached to the office of Chief The Mayor of Executive/Town Clerk; for example, the authorisation of payments from the town funds Nottingham were sent under the Mayors signature to the Chamberlains for payment with the words • The Sheriff of added "Pay this, and it will be allowed to you in your accounts", and many hundreds of Nottingham bills of this kind are to be found in the archives of the Corporation. As well as presiding over the meetings of the Corporation, the Mayor also presided over the Bench of Hono a Magistrates as chief magistrate in the Borough Court, and his powers as a magistrate Aldermen are set out in the Charter of King Edward II of 1314. The Mayors powers were Thomas William increased by the Charter of Edward IV of 1339 which added that he should henceforth Hammond be joined to all Commissions of Array in the Borough, those royally appointed bodies, V Download these who visited centres of population to raise militia for war service. The most important ifies Town Charter, that of Henry VI, which gave county status to the Borough, and sheriffs instead of bailiffs, stated that the sheriffs must take their oath of office before the Coat of Arms Mayor; but a much more important part of this Charter was the appointment of seven aldermen, who were also to be Justices of the Peace, one of whom was to be selected yearly, to hold the office of Mayor. These aldermen were chosen for life, and, on the death of any, the Mayor and Burgesses chose a burgess to fill the vacancy, so that the members of this body of seven aldermen, once appointed, received power which could not be challenged, and, in process of time, the power of the burgesses at large was taken over by the "Livery" or "Clothing", i.e., those burgesses who had served the office of Chamberlain or Sheriff; the effect of this was the creation of the much hated "close" Corporation, against which so much resentment was felt by the burgesses at large, a resentment which, at times, reached the stage of riot and rebellion. Henry VIs Charter added to the Mayoral duties those of escheator, or Kings agent in connection with the reversion to the crown of properties which lapsed through death of their owners, intestate and without heirs. From the time of the Charter of Henry VI, the Corporation themselves appeared to have been satisfied with their very considerable powers, and did nothing to alter them, but took any new steps to preserve them, particularly in times of new successions to the thron.Charters, invariably said that they were given by the King on his own behalf and that of his heirs and successors, but no new king, in fact, considered himself committed by the decisions of his predecessors, and reserved for himself the right to cancel or 1 of 4 11/25/2002 4:521 The City of Nottingham Council House - a tour of Nottingham's Counc... http://www.nottinghamcity.gov.uk/coun/history/mayor/2.as alter any Charter privileges given by such predecessors. Sometimes, therefore, on the accession of a new King, the holder of the Charter rights would voluntarily surrender the Charter to the new King for confirmation, and would take the opportunity, if so wished, to ask for additional powers to be added. In most cases, the Charter would be confirmed by the granting of a new one for which a fee would be paid. In this way Charters were a source of royal venue. Sometimes the King would desire to punish a Charter holder by withdrawing it, and this happened in Nottingham under Edward I. In the reign of Charles II, considerable upset was caused by the calling in of the towns Charter for examination and alteration. Charles considered that the powers of towns were too great, and desired to curb them, and the Corporation of Nottingham was divided on the matter, and only agreed to the royal demand to surrender the towns Charter by the casting vote of the Mayor, Gervas Wylde, an ardent royalist. Charles sent down a new Charter which curbed considerably the powers of the Corporation, and a state of chaos in town government resulted. Two separate parties attempted to govern, one by the terms of the old Charter and the other by the terms of the new one, and both elected a Mayor of the town. What happened in connection with office and officials, and the decisions made by the two Corporations, we can only surmise, but we do know there was disturbance and riot. The Privy Council intervened by calling the old charter party to London to answer for their conduct and they were heavily fined and warned to discontinue their unruly activities, leaving the new charter party in control of the town affairs. A further local disturbance was caused by the next King, James II, who planned a more rigid supervision and control of elections to the Corporation, so as to make it subservient to his will, but his designs had not been completed before he was dethroned. Representations made by the citizens to William and Mary were successful in restoring to the town, under a new Charter, all the privileges of the Charter of Henry VI; these continued to be held until the Municipal Corporation (Reform) Act of 1835. The gradual evolution of a governing body for the town, consisting of elected representatives from the burgesses, appears to have begun in 1446, in which year the burgesses appointed a committee to manage minor affairs but continued to meet as a body for discussion of important matters. Power, in the town, was vested in twelve members and the Mayor. With the Charter of Henry VI the position changed to the appointment of seven of whom, one must be the Mayor, all seven were appointed Justices of the Peace; they were appointed for life, by and from amongst the Burgesses and all vacancies were filled by the Mayor and Aldermen. The Mayor and any two Aldermen were deemed to be competent to hold Quarter Sessions. Over the centuries the government of Nottingham grew increasingly oligarchic; the town being run by the Mayor and Aldermen and the elections to the offices of Mayor and Sheriffs being a mere rubber stamping of previous decisions of the Council. Admission to this "close" group became more and more difficult and led to more persistent wrangling between the Council and burgesses over the composition of the Council. All who were not burgesses were "foreigners" or "strangers" whether they lived in the town or not and had no say, whatsoever in the running of the town, The next important step was the gradual discontinuance of meetings of the Burgesses as a whole, leaving more important matters to be decided on by the Committee, assisted by the members of the "livery" or "clothing" (i.e. Burgesses who had occupied the office either of Chamberlain or. Sheriff). Protests against being ousted from taking part in the governing of the borough by the Burgesses at large were eventually taken to the Privy Council, who made a ruling that the ruling body was to consist of twenty four members, 18 of the "clothing" elected from and by themselves, and six commoners afterwards known as junior councillors and elected by the Mayor and Burgesses. Vacancies in the offices of the Aldermen continued to be filled by the "livery" or "clothing". By the ruling of the Privy Council, it could be held, as it sometimes was, that the Aldermen were excluded from membership of the Council, but, in practice, they were always included. The 1835 Act for Municipal Reform ended the "close" Corporation and opened out the election of councillors and aldermen throughout the wards, or sections, into which the town was divided; the Council was elected by rate paying male householders of twenty one or over. The new Corporation of 56 members - 14 Aldermen and 42 councillors - 2 of 4 11/25/2002 4:52 PT' The City of Nottingham Council House - a tour of Nottingham's Counc... http://www.nottinghamcity.gov.uk/counlhistory/mayor/2.as took office in 1835, and one of their first duties was that of appointing a mayor from their number, which they did on 1st. January, 1836; the first person to be selected, from the elected body, was Thomas Wakefield, who was succeeded by Richard Morley in November of the same year. At the time of her Diamond Jubilee, 1897, Queen Victoria conferred, on the Borough, the status of City, the news being sent, in a letter, dated 18th. June, 1897, from the Prime Minister the Marquis of Salisbury, to the Mayor Alderman Edward Henry Fraser (afterwards Sir Henry); a bronze plaque, commemorating this event, can be seen on the wall in the entrance to the Guildhall, Burton Street. In addition to this, the City Council bought a " proper badge" for the Mayor to wear on special occasions; this is worn by the Lord Mayor when in evening dress. By Letters Patent of George V, of July, 1928, "the chief magistrate of the City is to be styled henceforward as Lord Mayor". The first proud holder of this title was the Mayor for the current year Alderman Edmund Huntsman; he was later given the honour of "Freeman of the City". Following the approval, by parliament, of the Local Government Act, 1972, Nottingham ceased to be a municipal corporation and county borough, becoming one of the eight districts in the new Nottinghamshire. The City lost its ancient status and independence but, under royal charter and grant by the College of Arms, it does retain its Lord Mayor, Sheriff, and title of City; many of its important functions and responsibilities, however, were transferred to the new County Council. Under the provisions of the Local Government Act, 1972, it became necessary for any person having designs of becoming Lord Mayor to first become a member of the City Council. The election of the Lord Mayor takes place at the Annual Meeting of the Council, in May, and is the first item of business to be dealt with on that day. The primary function of the Lord Mayor, is to preside over meetings of the Council and, if necessary, he has a second, or casting, vote; he/she is an ex-officio member of all committees. As a result of the Act, of 1972, the Lord Mayor no longer has any duties or functions in connection with Local Government Elections. Duties of Lord Mayor and Mayors do not differ, but there is a difference in status. In joint assemblies Lord Mayors and Mayors, the Lord Mayors take precedence. When the Lord Lieutenant, of the County, is attending in his/her capacity representing the Queen he takes precedence over the Lord Mayor, as does the High Sheriff of the County; the letter by royal prerogative as set out in the Home Office Memorandum of January 1928. As the "first citizen" of the City, the Lord Mayor has precedence in "the district" and, arising from the importance of his/her office many schools, groups, organisations and people make requests for an attendance of the Lord Mayor at their functions or ask for permission to visit the Lord Mayor in the Council House. In addition, a Lord Mayor will, during his/her year of office, be called upon to meet important visitors from other parts of the country and, indeed, towns and cities of other countries, likewise, the Lord Mayor will represent the Council and City outside the "district" boundaries visiting towns and cities elsewhere in the country and overseas; the list of duties of a Lord Mayor is virtually never ending. In the absence of the Lord Mayor, the Deputy Lord Mayor is called upon to act and, on such occasions, is entitled to the precedence afforded the Lord Mayor within the City. Most people, in Nottingham, will have seen the Lord Mayor sometimes accompanied by the Sheriff, and their Ladies, attending or going to one of the many civic functions dressed in their formal attire and, of course, wearing their chains of office. Nottingham, like other historic towns and cities, has, over the years, acquired a large collection of fine "regalia" and "plate" much of which is Victorian but several pieces date back to the later Stuart period linking the City with its past; most of the items have their own history and much of this can now be seen when visiting the Council House. At the end of their year of office Lord Mayors, like Sheriffs, are presented with a jewel as a token of appreciation from the City Council; their Ladies also receive a smaller 3 of4 11/25/2002 4:52ri The City of Nottingham Council House - a tour of Nottingham's Counc... http://www.nottinghamcity.gov.uk/counlhistory/mayor/2.as jewel. You are viewing page 2 of 13 pages Back to INTRODUCTION Forward to THE GREAT MACE © Nottingham City Council - please view our disclaimer, copyright and privacy Nottingham*' We welcome your feedback please complete our feedback form Thank you rrnrstyIu.gnd.ry 87 users are viewing our website at the moment. E-mail this page to a friend 4 of4 11/25/2002 4:52 P The Legal Role of Mayors and Councillors Page 110 NOTES LIDSTONE, YOUNG, ANDERSON Responsibilities 1.1 Approval of T,and Title Act subdivision plans [L.T.A. Sec. 83]. 1.2 Approval of bare land strata plans [Cnndminiiim Act, Sec. 8(3); B.C. Reg. 75/78]. 1.3 Approval of phased strata plans (Fonn E and phase plans) [Cnndmininm Act, Secs. 77, 8(2)]. Appointment and Independence 2.1 Every municipality in B.C. has an approving officer, appointed by the municipal council [L.T.A., Sec. 77]. 2.2 A municipal council sometimes appoints more than one approving officer. - Genevieve Hokuings Ltd v. Kaminops (B.C.C.A., Vancouver Registry No. CA088791, April 25, 1989) 2.3 In rural areas, approving officers are appointed by Cabinet [L.T.A., Sec. 77]. 2.4 Pending amendments to the L.T.A. will allow regional district boards to make appointments, subject to M.O.T.H. approval of highway-related decisions. 2.5 Approving officers have statutory responsibility and discretion which must be exercised independently. - Genevieve Holdings Ltd v. Kamloops (1987) 18 B.C.L.R. (2d) 213 (S.C.) 2.6 However, improper deference to Council is difficult to prove. - Neiifeld v. Surrey (S.C.B.C., New Westminster Registry No. S023304, March 29, GAI12-97.01ah 1995) 3. Compliance With Bylaws and Statutes 3.1 The approving officer is charged with ensuring that proposed subdivisions comply with applicable enactments. [Land Title Act Sec. 87] 3.2 There is no authority to waive non-compliance with the Municipal Act, zoning bylaws or subdivision servicing bylaws. -Seaview Land Ftate Ltd v. South (1981) 28 B.C.L.R. 288 (C.A.) -White v. Raven (1984) 51 B.C.L.R. 382 (C.A.) 3.3 Therefore basic requirements such as minimum lot sizes, road widths and servicing requirements established by the elected officials must be satisfied. 3.4 Section 943 of the Municipal Act "freezes" the bylaws in effect when a subdivision application (including a preliminary application) is submitted. New bylaws have no effect for 12 months after enactment. - Femco Developments Ltd. v. Nanaimo (B.C.C.A., Victoria Registry No. VOl 106, July 26, 1990) GA/12-97.01ah 2 4. Highway Access 4.1 Section 75 of the I rncl Title Act empowers the approving officer to require that "necessary and reasonable" highway access be provided: to all lots within a subdivision; and through the subdivision to "lands beyond". 4.2 Required highways may include pedestrian or bicycle paths as well as vehicular routes. -Burns v. Da.le(S.C.B.C., Vancouver Registry No. A972311, Oct. 22, 1997) 4.3 The court will defer to the approving officer on the necessity of a highway if there is evidence of the need to extend or support an existing or planned highway network. - Aquarius Estates v. R (B.C.C.A., Vancouver Registry No. C.A.002864, Oct. 17, 1986) - cf Arhutns Bay Estates v. R. (1989) 43 M.P.L.R. 288 (S.C.B.C.) 4.4 Upon subdivision of waterfront land, highway access must be dedicated to the body of water at specified intervals [Land Title Act, Section 75(2), (3)] 5. Public Interest 5.1 The approving officer has an extraordinary power to refuse any proposed subdivision. which is contrary to the "public interest", notwithstanding compliance withail statutory prerequisits E and Title Act, Sectib1 85(3)]. 5.2 In B.C., there is no "right to subdivide". - Vancouver v. Simpson [1977] 1 S.C.R. 71 5.3 Lower courts often have difficult accepting that a single, non-elected official can GAJI2-97.01ah 3 determine the public interest and frustrate an otherwise lawful subdivision. - Morgan v. Vancouver (1987) 20 B.C.L.R. (2d) 118 (S.C.B.C.) - Hlynskyv. West Vancouver (1987) 18 B.C.L.R. (2d) 341 (S.C.B.C.) 5.4 However, the Court of Appeal has repeatedly held that judges are not to substitute their opinions for those of the approving officer. - Morgan v. Vancouver (1988) 32 B.C.L.R. (2d) 1 (C.A.) - Hlynskyv. West Vancouver (1989) 37 B.C.L.R. (2d) 79 (C.A.) - Darhyv. Vancouver (1990) 47 M.P.L.R. 241 (C.A.) 5.5 An approving officer's determination of the public interest is only to be overturned if the approving officer acts: on a "specious and inadequate factual basis"; in bad faith (e.g. for an improper purpose); or upon an error of law or otherwise in excess of jurisdiction, including in breach of procedural fairness. - Noort Holdings Ltd v. Dickinson (1995) 26 M.P.L.R. (2d) 79 (S.C.B.C.) [Appendix] - Cole v. Campbell River (1995) 27 M.P.L.R. (2d) 56 (C.A.) - Moore V. Saanich (1996) 30 M.P.L.R. (2d) 132 (S.C.B.C.) 5.6 The courts have tended to support the imposition of conditions (e.g. requirements for registration of restrictive covenants) in the public interest. - Neiifekl v. Siiirrey (supra.) - Rums v. Dale (supra.) - Homby Tsland Conseniancy Association v. Howaft (S.C.B.C., Courtenay Registry No. S4294, April 28, 1997) 5.7 Note that Section 93 1(6) of the Municipal Act prohibits an approving officer from I. GAJ12-97.01ah ru requiring the provision of any work or service, or the payment of any levy, except as expressly authorized by statute. 6. Appeals and Judicial Review 6.1 Section 89 of the I Sand Title Act confers a right of appeal to the Supreme Court on an applicant whose proposed subdivision has been refused (including upon a deemed refusal, which normally arises two months after a plan is submitted). 6.2 The limitation period for an appeal under Section 89 is one month. 6.3 A disappointed applicant may also bring a common law action for declaration. -Hodgins v. Delta (1995) 30 M.P.L.R. (2d) 237 (S.C.B.C.) 6.4 Judicial review under Section 2(2) of the Judicial Review Procedure Act is available to: an applicant who has missed the Land Title Act appeal period; -Granite Development Ltd v. R. (1981) 34 B.C.L.R. 220 (S.C.B.C.) a third party who opposes approval of a subdivision; an applicant for approval under the Condominium Act, including the Bare Land Strata Regulations. 6.5 Standing for a third party is not automatically given in judicial review. - Solex Developmentc v. District of Taylor (S.C.B.C., Vancouver Registry No. A972088, September 29, 1997) 6.6 Refusal of "preliminary approval" does not involve a statutory power and there is no basis for an appeal or judicial review in such a case. GA/12-97.01ah 5 - Shannon Woods Development Ltd. v. Dodds (S.C.B.C., Vancouver Registry No. A96 1932, July 9, 1996). GAJ12-97.01ah Appendix Noort Holdings Ltd V. Dickinson (1995) 26 M.P.L.R. (2d) 79 (S.C.B.C.), per Cohen J. at 88: "V. Summary of the Applicable Law Section 8 5(3) of the Act provides, inter alia, that in considering an application for subdivision approval, the approving officer may refuse to approve the subdivision plan if he considers that the deposit of the plan is against the public interest. Section 86(l)(c) of the Act provides that the approving officer may refuse to approve the subdivision plan if, inter alia, the development would negatively affect the established amenities of adjacent properties, or the subdivision is unsuited to the configuration of the land being subdivided or to the use intended, or makes impractical future subdivision of land adjacent to the subdivision. '[T]here is no longer a right to subdivide land. The [Land Title] Act requires that any subdivision must first be approved by the approving officer, a person designata under the [Land Title] Act (see s. 77).' See Cole v. Campbell River (District) Approving Officer (8 December, 1993), Vancouver A932798 (B.C.S.C.), at p.8. The approving officer acts in a judicial capacity in deciding whether to approve an application for a subdivision. See Riverside Terrace Realty Ltd v. North Vancouver (District) (1992),6 C.P.C. (3d) 376,6 Admin. L.R. (2d) 73 (B.C.S.C.). 'Section 85(3) casts an obligation on the approving officer to decide whether the proposed subdivision is in the public interest. In reviewing the decision of an approving officer, a chambers judge should have regard only to those factors mentioned by the Supreme Court in Vancouver v. Simpson, [1977] 1 S.C.R. 71..., and should assess the approving officer's decision by giving him considerable latitude. A chambers judge should not lightly, or arbitrarily, come to a conclusion contrary to that of the approving officer.' Hlynsky v. West Vancouver (District) Approving Officer, (1989), 37 B.C.L.R. (2d) 79, (sub nom. Hl)nsky v. 'Walker (Approving Officer)) 57 D.L.R. (4th) 751 (C.A.) at p. 84 [B.C.L.R.]. 'In reviewing the refusal..., a court should not subject his reasons to 'a careful, critical analysis'... .The reviewing court should allow the approving officer substantial latitude and should not be quick to find fault with his decision. The only concern of reviewing court is whether the approving officer based his decision (1) in bad faith, (2) with intent to discriminate GA/12-97,0Iah 7 against any property owner, and (3) made his refusal on 'specious and totally inadequate factual basis'.' See Hlynsky, supra, at pp. 84-85. '...[T]he words 'against the public interest' in s.85(3) are not of unlimited scope.' See Simensen v. Metchosin (District) (1990), (sub nom. Lrnidy v. Metchosin (District)) 44 B.C.L.R. (2d) 338, 49 M.P.L.R. 86 (C.A.), at p. 90 [M.P.L.R.]. However, the approving officer has the power to insist, in the public interest, upon subdivision requirements which are more restrictive than those set out in a current zoning bylaw 'where ... there is some reasonable factual foundation for his assessment of the public interest.' See Cole, supra, at p.5. The chambers judge cannot substitute his opinion for that of the approving officer. See Hlynsky, supra, and Darhy v. Vancouver (City) (1990), 47 M.P.L.R. 241 (B.C.C.A.). '...if the approving officer exercises judicially and reasonably the broad discretion which he has been given by statute, and if he does not abuse or exceed these powers, such exercise of discretion cannot be interfered with by the courts....' See Grosek v. Vanconver (City) (1981), 30 B.C.L.R. 5, 15 M.P.L.R. 153 (C.A.), atp. 6 [B.C.L.R.]. 'The approving officer is not a lawyer nor a judge. He is usually an experienced and well-educated municipal public servant who has expertise in other fields than the law and when he sets out, as best he can, the conclusions he has reached together with his reasons, the court ought to search for the overall theory and not simply dissect every word.' See Gray v. Vancouver (City), 5 B.C.L.R. 1, 82 D.L.R. (3d) 77 (S.C.), at p. 8 [B.C.L.R.]." GA/I 2-97.Olah