FINAL EXAMINATION APRIL Law 374 Municipal Law TOTAL MARKS: 100

Transcription

1 THIS EXAMINATION CONSISTS OF 8 PAGES INCLUDING THE COVER PAGE PLEASE ENSURE THAT YOU HAVE A COMPLETE PAPER THE UNIVERSITY OF BRITISH COLUMBIA FACULTY OF LAW FINAL EXAMINATION APRIL 2014 Law 374 Municipal Law Gregg Cockrill and Sukhbir Manhas TOTAL MARKS: 100 TIME ALLOWED: 3 HOURS ************************************************ Note: 1. This is an open book examination. Students may refer only to (i) the Statutory Material, (ii) the Case Book; and (iii) class notes THIS EXAMINATION CONSISTS OF 4 QUESTIONS. STUDENTS MUST COMPLETE ONE OF QUESTIONS 1 AND 2 AND ONE OF QUESTIONS 3 AND 4. NOTE: DO ONLY 2 QUESTIONS (ONE OF QUESTIONS 1 AND 2 AND ONE OF QUESTIONS 3 AND 4)

2 In July 2013, ABC Co. purchased Lot A in the Town of Blackville. At that ANSWER THIS QUESTION OR time, Lot A was zoned C-i Commercial. The only use permitted in the C-i zone was Major Recreation, a use defined in the Town s Zoning Bylaw as follows: QUESTION 2 Major Recreation means the use of land, buildings or other structures for the purpose of commercial undertakings involving the delivery of recreational services to the general public. At the time ABC Co. purchased Lot A, the east 34 of Lot A was unimproved, vacant land not being used for any purpose, but the west 34 of Lot A was being used for a BMX bicycle race track open to the general public. ABC Co. intended to use the existing BMX race track for motocross racing purposes after it first constructed a parking area for its motocross race customers on the east 34 of Lot A. In the meantime, ABC Co. would continue to operate the BMX bicycle racing operation, converting to the motocross racing business once the new parking area is constructed. In October 2013, ABC Co. began clearing trees on the east34 of Lot A, without first obtaining a tree removal permit as required by the Town s tree removal bylaw. When the Town planner saw the tree removal taking place, he immediately phoned ABC Co. to advise ABC Co. of the need for a tree removal permit and to ask about ABC Co. s intentions. When ABC Co. advised the planner that it intended to convert the BMX race track to a motocross track and was clearing trees to facilitate the construction of the new parking area, the planner was alarmed, as Lot A was surrounded by residential development. He advised ABC Co. that he would be recommending to Council a zoning amendment to prohibit motocross racing on Lot A. ABC Co. immediately stopped removing trees from the site, electing instead to await the outcome of Council s deliberations on the planner s recommendation. On December 15, 2013, the planner presented a bylaw to the Town Council, Bylaw No. 1, that would amend the definition of Major Recreation in the Zoning Bylaw to expressly exclude any activity that produces excessive noise.

3 3 At the December 15, 2013 meeting, the 7 member Town Council voted 5-2 in favour of giving Bylaw No. 1 first reading. Among the five Council members voting in favour of first reading were Mrs. Smith, who owns one of 23 houses bordering on Lot A and Mr. White, who is married to Mrs. Smith s sister. On January 15, 2014, the Town held a public hearing on Bylaw No. 1, after publishing a notice of the hearing under section 892 of the Local Government Act. The notice described the bylaw s purpose as being to amend the Zoning Bylaw to prohibit motorcycle racing on Lot A. On January 30, 2014, the Town gave second and third reading to Bylaw No. 1 and adopted it. One Council member was absent from the meeting. The votes on the January 30, 2014 readings and adoption of Bylaw No. 1 were 4-2 in favour, with Mrs. Smith and Mr. White again voting in favour. ABC Co. wishes to continue with its plans to use Lot A for motocross racing and to construct and use the new parking area, including by challenging the validity of Bylaw No. 1 if necessary. Advised ABC Co. of its legal position and best course of action Marcello Farzari is a lawyer in the Town of Highville. After her call to the Bar in 1998, Ms. Farzari practiced at the law firm of High, Moral and Standard, being a partner in that law firm for the last five years. She has ANSWER THIS developed a successful criminal defence law practice, with many of her QUESTION OR clients being producers of medical marijuana. The other partners of High, QUESTION 1 Moral and Standard recently became concerned about the nature of Ms. Farzari s clientele, and evicted her from the partnership. Dejected, Ms. Farzari set up an office at her house and began operating her law practice from her basement. In the last two months, Highville has received a number of complaints from Ms. Farzari s neighbours about members of motorcycle gangs attending at Ms. Farzari s house. The neighbours are concerned about their safety with such unsavoury people being in their neighbourhood. Also, the neighbours are very concerned about the noise created by the motorcycles that these unsavoury people are riding to Ms. Farzari s house, especially given that are there in the early morning and later afternoon hours before and after the court day.

4 4 In response to the complaints it received, Highville directed its bylaw enforcement officer to investigate the complaints and report back to Council on the issue. The bylaw enforcement officer, having confirmed the substance of the complaints, reported back to Council and recommended that the Council consider the revocation of Ms. Farzari s business license. As a result, Highville sent a letter to Ms. Farzari inviting her to attend at the next meeting of Highville s Council to show cause as to why her business license should not be revoked. In that letter, Highville summarized the complaints received by it from Ms. Farzari s neighbours. At the next meeting of Highville s Council, the Mayor invited Ms. Farzari to come forward and show cause as to why her business license should not be revoked by the Council. In her submissions to the Council, Ms. Farzari spoke of the importance of the availability of medical marijuana and the public service that her clients were providing. Ms. Farzari attempted to persuade the Council that her clients were not motorcycle gang members, but were law-abiding citizens. In support of that position, Ms. Farzari had a number of her clients attend the Council meeting with her. After hearing from three of those clients in support of Ms. Farzari, the Council indicated that it had heard enough and would be deliberating on the issues. Council then asked all members of the public to leave the Council chambers. Once all members of the public had left, the Council discussed the revocation of Ms. Farzari s business license. In the context of that discussion, Council asked a number of questions of Highville s bylaw enforcement officer. After considering the matter, Council invited the public back into the Council chambers and passed a resolution to revoke Ms. Farzari s business license. Ms. Farzari was outraged at the decision of Highville s Council and advised that she intended to defy its decision and continue to practice law from her home. At that same time, Ms. Farzari chastised the Mayor for participating in the decision in light of the fact that she had known the Mayor for a number of years, as he was a client of High, Moral, & Standard, and had represented, although unsuccessfully, the Mayor s son when he was charged with possession of marijuana. You are the lawyer for Highville and have been asked by Highville s Council to advise it as to whether it would be successful in legal proceedings brought to require Ms. Farzari to cease operating her law practice from her home. In providing your advice, you should address the test to be applied by the courts in any legal proceedings brought by Highville against Ms. Farzari, as well as any issues that Ms. Farzari may raise in defence of those legal proceedings, and the impact of those issues on the likeliness of

5 5 success of those legal proceedings The Town of Smallville owns a large parcel of land, Lot B, which contains a large gravel deposit. It is surrounded by five other large parcels with similar gravel deposits, Lots C, D, E, F and G. ANSWER THIS On June 1, 2010, the Town met in camera to consider a draft soil removal QUESTION OR QUESTION 4 bylaw, Soil Removal Bylaw No. 1, that had been prepared by the Town Engineer. Bylaw No.1 contained the following two sections: 1. This Bylaw applies only to Lots C, D, E, F and G as shown on Schedule A. 2. No more than 5,000 cubic metres of gravel may be removed in any calendar year from each of the lots to which this Bylaw applies. At the in camera meeting, the Town Engineer recommended that Bylaw No. 1 should be adopted for the purpose of limiting the nuisance aspects of the large volume of heavy truck traffic that might be experienced in the area in the absence of the soil removal limits in the bylaw and for the purpose of increasing the value of the municipal gravel deposit on Lot B. On June 15, 2010, the Town Council met in public and resolved to give Bylaw No. 1 three readings. At the June 15 th meeting there was no discussion by Council members at concerning the bylaw, but the Town Engineer presented a brief staff report recommending the bylaw as a means of dealing with potential nuisance issues relating to anticipated truck traffic. He noted that the Town had received numerous complaints from residents in the area complaining about truck noise and excessive damage to roads in the area resulting from the large number of trucks removing gravel from Lots C, D, E, F and G. He pointed out that in the past two years alone the owners of those lots had removed some 300,000 cubic metres of gravel. The Town Engineer made no specific mention about the effect of the bylaw on the value of the municipal gravel deposit on Lot B, although he did remind Council that it had met earlier to consider the merits of the bylaw. He added that without the bylaw gravel removal might rise to twice the historic levels if Council proceeded with plans to remove gravel from its own Lot B. He indicated that as much as 300,000 cubic metres could probably be obtained in each of the next 5 years from Lot B alone and suggested that significant restrictions should therefore be placed on gravel removal from Lots C, D, D, F and G if Council wished to keep gravel removal in the area to a level similar to that to which residents

6 6 in the area had been exposed in recent years. He pointed out that while the Town s Official Community Plan designated Lots C, D, E, F and G as generally suitable for commercial gravel pit use, it did not define the term commercial. On June 20, 2010, the Town Council adopted the bylaw at a public meeting, without discussion. On June 1, 2011, the Town Council passed the following resolution: 1The Town Engineer is hereby authorized to enter an agreement on behalf of the Town to sell the right to remove up to 300,000 cubic metres of gravel from Lot B before July 15, 2012 at a price determined by the Town Engineer that is not less than $2.00 per cubic metre. On July 1, 2011, the Town Engineer executed, on behalf of the Town, an agreement with ABC Co. containing the following clauses: 1. ABC Co. may remove up to 300,000 cubic metres of gravel from Lot B on or before July 15, Whether or not ABC Co removes gravel from Lot B under section 1, ABC Co. shall pay $50,000 to the Town on or before the 15 th day of each of the twelve consecutive months commencing in August The Town shall not, before July 15, 2012, give first reading to any bylaw that would amend Bylaw No. 1 to increase the amount of gravel that may be removed from any lot to which that bylaw applies unless the Town has first given ABC Co. advance written notice of its intention to do so. 4. If a court declares Bylaw No. 1 invalid before July 15, 2012, this Agreement is immediately terminated without prejudice to the right of the Town to recover amounts that have become payable to it prior to the date of termination. Shortly after the Agreement was executed, the owner of Lot C, concerned that Bylaw No. 1 would unduly impact the viability of his commercial gravel removal operation, filed a petition in the Supreme Court of British Columbia seeking a declaration that Bylaw No. 1 is invalid. In the face of the petition, ABC Co. has refrained from removing gravel from Lot B or paying any money to the Town under section 2 of the Agreement.

7 7 Assume a decision in the Court case is given on October 15, 2011 and that ABC Co., regardless of the outcome of the case, repudiates the agreement immediately thereafter, having removed no gravel under it and having made no payment to the Town. If the Town elects to sue for damages for breach of contract, what amount of damages, if any, should the Town expect to be awarded. Your answer should be based on your view of the outcome of the petition brought by the Lot C owner and should assume that ABC Co. will challenge the validity of the Agreement The District of Youngville is largely rural in character, being for the most part made up of large undeveloped parcels of land. Despite this, Youngville provides its residents with a very high level of services. ANSWER THIS Recently, the residents of Youngville have fallen on difficult times, and it QUESTION OR has become increasingly difficult for them to pay the property taxes QUESTION 3 necessary to support the level of services that they receive. As a result, Youngville s Council instructed its administrator to identify additional revenue streams available to Youngville to reduce the amount of property taxes it imposes on its residents. As the administrator was up to his eyeballs in Youngville s budget process, the administrator issued a request for proposals for consultant services to undertake a study of additional revenue streams available to Youngville. The administrator received four responses to that RFP, the most cost effective of which was received from the Mayor s stepdaughter, Ms. Hanna McLale. The administrator immediately awarded the contract to Ms. McLale and directed that she begin her work under the contract as soon as possible. In her report to Youngville s Council, Ms. McLale identified a number of potential revenue streams for Youngville, the most promising of which being for Youngville to dispose of its significant land holdings within its territorial jurisdiction. Shortly after receiving Ms. McLale s study, Youngville s administrator brought a report to Youngville s Council recommending that Youngville consider disposing of its land holdings to offset property taxes that would otherwise be charged to Youngville s residents. Youngville s Council was very receptive of the idea and directed its administrator to offer for sale a number of those holdings, which Youngville s administrator did. In response to that offer, Urban Developments Ltd. offered to purchase a large parcel of land held by Youngville for $3,000,000.00, subject to Youngville rezoning the land from Rural Residential Use (which allowed a single-family dwelling on the parcel) to Small Lot Residential Use, which

8 8 would allow the parcel to be subdivided into 100 city sized lots). When Youngville s administrator received this offer, he was ecstatic and immediately contacted four of Youngville s Council members. Youngville s administrator and the four Council members met later that day and all of them agreed that the offer was more than generous, and decided to move forward with bringing it to Council for consideration. At that same time, the four Council members directed Youngville staff to bring forward the necessary amendments to Youngville s official community plan and zoning bylaw to allow for the condition to the sale to be met. The issue of the sale of the parcel to Urban Developments Ltd. was brought before Youngville s Council at its next meeting, with the staff report recommending that Youngville move forward with the sale, which would require both an official community plan amendment, as Youngville s official community plan designates the subject property as Rural Residential (which would permit only a single-family dwelling on the parcel), and a rezoning bylaw. As Youngville s Council wished to ensure that there can be no legal challenge to the steps that it takes towards the sale of the subject parcel, Youngville s Council directed its administrator to seek legal advice as to any potential issues affect the sale of the property to Urban Developments Ltd., and all steps necessary to be undertaken by Youngville in order to legally complete the sale. You are Youngville s solicitor and it s administrator has contacted you for advice in respect of any issues that you see arising from the circumstances of the potential sale to Urban Developments Ltd. as at this point, and for advice as to all steps necessary to be undertaken by Youngville to complete the sale, including the necessary official community plan and zoning bylaw amendments. END OF EXAMINATION