Changes may be coming to public hearings

“Waiving” a hearing implies something else may have to take its place; not requiring public hearings means staff and council will opt-in rather than default to public hearings.

By Jennifer Wolowic and Megan Mattes

Introducing a Special Series

On October 26th, 2021 BC Minister of Municipal Affairs Josie Osborne announced she was submitting a bill to propose changes to the Local Government Act. If approved the bill will affect sections related to land use public hearings in British Columbia.

For those who don’t make a hobby of following land use public policy and procedures in British Columbia, the proposed changes could be confusing.

To help, we’re sharing our thoughts based on informal conversations last summer with more than 40 elected officials, housing organizations, bureaucrats, developers, residents, and solicitors, as well as our more recent deep dive into the research and history of public hearings in British Columbia.

As part of a series of posts related to the proposed change, here are our thoughts on the public hearing requirement amendment:

What exactly is the proposed change to public hearings?

In 2018, the Ministry of Municipal Affairs conducted an extensive review of Development Approval Processes. They consulted with municipalities across British Columbia to hear their concerns and suggestions for improving the current development approval process. The report presents a number of challenges that participants identified as obstacles to an efficient and effective public input process: that public hearings do not allow for discussion; that they occur late in the process; that they attract well-organized interest groups, but don’t always represent the general public; and they can add to projects costs and delay timelines.

According to the current text of the Local Government Act, public hearings are required for all development applications that seek to create or change zoning bylaws that are not consistent with the Official Community Plan (OCP).

This week’s announcement states that the Local Government Act will be updated to “remove the default requirement for local governments to hold public hearings for zoning bylaw amendments that are consistent with the official community plan” by changing section 464.

The announcement asserts that this and other changes “will support local governments to move forward more efficiently on developments, bypassing barriers and speeding up housing approvals,” as identified through the aforementioned consultations.

What you need to know is that this amendment does not make a substantive change regarding public hearings. The Local Government Act already lets municipalities waive public hearings if a development application is in accordance with the OCP.

Public hearings will still take place to discuss development applications that seek changes that are different from current bylaws and inconsistent with the municipality's OCP. Public hearings are still required for the approval of OCPs, so we can be sure that the public will still have the chance to participate in a public hearing during the OCP approval process and on any development that would deviate from the OCP.

Furthermore, this change is only being made to the Local Government Act, and will have no impact on the Vancouver Charter. The result is Vancouver residents may experience a bit of FOMO regarding these changes since it won’t impact how things are done in the city. But the changes may inspire future reform to require Vancouver to have an OCP, and may shift how all cities think about public hearings.

How will it affect how municipalities and citizens think about public hearings?

While the amendment to the Local Government Act only changes a couple of words, this change signals a shift in how councils and staff can and will think about public hearings.

The current language allowing municipalities to “waive” a hearing implies something else may have to take its place. Stating public hearings are “not required” means staff and council will have to opt-in rather than default to holding public hearings.

The development approval process is filled with back and forths between the planning staff and developers. Proposals are measured against metrics and principles set by council and known needs in the communities. Staff may do additional public engagement to support this negotiation. It is a way planning departments ensure community amenities are built into the growth of cities.

The Development Approvals Process Review (DAPR) notes that “many local governments have created their own processes for meaningful public engagement earlier in the process. Similarly, while there are no requirements for proponents to engage with the public at any point in the process, many choose to do so.”

Many municipalities expect developers to consult with the community in the pre-development process. Developers have to keep track of the comments they receive and subsequently submit a report to the city detailing how they are addressing community concerns or suggestions for changes. This is why approvals take some time.

Thus when we consider the proposed change to the Local Government Act, we need to think about in the context. A proposal only goes to council and a public hearing when local government staff deems it ready. It is already at municipal discretion to decide if the project is put before council and public hearings occur.

If proposals do not meet requirements, they never reach the climax of the pre-development process: the public hearing. When they do reach a public hearing, more often than not, very few people show up to speak. Only particular projects that cause controversy in the pre-development approval pipeline attract high numbers of attendees. And the projects that tend to be contentious also tend to unleash racism, classism and misinformation into the process.

What positive effects could it have?

In alignment with the DAPR, we heard in our background conversations a consensus that there were simply “too many public hearings.” They drain staff and councils’ emotional energy and rarely impact outcomes because they occur too late in the process.

Fewer public hearings will probably not change the way planning departments do their pre-development work. But fewer public hearings may lessen the harms created by these procedures for equity-seeking groups. Researchers have noted for decades that public hearings tend not representative of an entire community. They also often bring out citizen lobbyists with narrow motivations.

Fewer public hearings may also reduce the risk for developers and shorten timelines that add costs to for-profit and non-profit housing projects. Removing public hearings that comply with OCPs means there is less of a chance that interest groups in the city can stall or erase a project at the final steps. They also will not have to wait weeks or months to get on a municipal meeting calendar.

Fears of public hearings can also influence where developments tend to occur. The expectation of neighbourhood defenders or loud minority voices at public hearings can be a disincentive for starting development proposals in certain neighbourhoods. Removing the barrier could mean future density could be applied more equitably across municipalities.

Finally, the change will also increase the importance of the OCP engagement process. So much so that we are going to devote a whole separate post specifically to that topic.

What could go wrong?

Some may be concerned that these changes will lead to significantly fewer optional public hearings. What if a proposed development plan or zoning change is aligned with the OCP, but has a social impact that community members want to discuss, if not outright fight back against? If public hearings become an “opt-in” process, what legislated options will the public be able to use to ensure their interests are heard by staff and council? What checks and balances exist to address developer interests?

This ties into a more broad concern: that citizens may not have enough opportunity to voice their opinions on government decision-making in general. Is an OCPs engagement process and public hearing every five to ten years sufficient opportunity for citizens to help direct the course of their municipality’s planning?

In a time when scholars and practitioners say we should be increasing opportunities for meaningful citizen participation, this reform may not go far enough.

But all things considered, participants and researchers tend to agree that public hearings are a flawed model of participation. As acknowledged through the government’s consultation, they don’t allow for discussion, they don’t manage to engage people from all backgrounds, and they can occur too late in the process to meaningfully incorporate feedback into the proposal.

What do we need to do to prevent worst-case scenarios from this change?

Reform to the public hearing process is sorely needed. Perhaps it’s a reasonable idea to step away from them while we figure out what reforms can make them properly meaningful, impactful, and inclusive. If the changes are approved, municipalities will have to fill in a few legislative gaps to maintain trust among residents.

First, local practices for public engagement policies and practices will need to be clear and transparent. Nichols’ (2020) comparative jurisdictional review of practices for public participation in British Columbia found only eight of the 19 municipalities with populations over 50,000 have adopted citizen engagement frameworks to guide their planning departments. To appease resident concerns that removing public hearing requirements will benefit developers, municipalities will need to prioritize creating these policies sooner, rather than later.

Local governments will also need to embed Gender Based Analysis + (GBA+) into their engagement systems. Since the first zoning law was passed in Point Grey in 1922, racism, exclusion and rules to benefit some over others have been part of zoning legislation evolution. GBA+ has been embraced by the Canadian government as an effective approach for developing effective programs; these lenses should also be embedded in local government decision-making systems to avoid the mistakes of the past.

As we will unpack in a future post, engagement processes for OCP development will become more important with these changes. Ensuring those plans provide guidance and consensus among communities will smooth the process for individual applications that qualify for skipping a public hearing.

Finally, the public may have to come to terms with the reality that processes will be unclear for some time. Municipalities will need to iron out how to decide whether or not a project aligns with an OCP, and what constitutes a small change that can be delegated to staff. The proposed change leaves some room for interpretation.

Final Thoughts on the Proposed Changes

Ultimately, whether or not you view the proposed changes as positive rests with your pre-held beliefs. Do you tend to trust your elected officials and local government staff or not? Overcoming this motivated reasoning is a common challenge across our increasingly polarized democracy.

Motivated reasoning showed up among the authors as we drafted this post. Our previous personal experiences with public hearings and council decisions coloured our perspectives and a lively debate ensued among the authors about whether or not these changes were “good.” Did our values tend to align with direct democracy or representative systems of governance? That belief tended to motivate our analysis.

What brought us back into agreement was the recognition that the Local Government Act names the bare-minimum public engagement requirements. Some cities rise far above these requirements already, but we have concerns about how low this engagement baseline will remain.

In a world filled with participatory democratic innovations, we should continue seeking and legislating ways to ensure all jurisdictions have public participation; the public hearing is one form of that. But because it is not the best designed, nor ideal from a functional perspective, the desire for participation is perhaps not a strong enough reason to cling to these frankly non-essential public hearings.