Challenging Zoning Decisions: Proper And Improper Considerations By Municipal Councillors

What makes a municipal Councillor's vote "bad"? Where do we draw the line between proper considerations and malicious misuse of power? The British Columbia Supreme Court examined these issues in a recent ruling in Rodgers v. Sechelt (District), 2015 BCSC 687.

The bistro and the liquor store

In 2005, Mr. Brock Rodgers applied to the District of Sechelt to re-zone certain lands in West Sechelt to permit the construction of a bistro. Mr. Rodgers intended the bistro to operate with a liquor-primary license - a license typically issued for pubs, bars and other facilities engaged primarily in the sale of liquor.

Together with the bistro, Mr. Rodgers wished to open a liquor store on nearby Sechelt Indian Band lands (the "Band Lands"). The bistro was crucial for this purpose: pursuant to the liquor laws in place at the time, the Liquor Control and Licensing Branch ("LCLB") would only issue the liquor store license to Mr. Rodgers if he also held a concurrent liquor-primary license.

The District initially supported the rezoning bylaw which would allow the bistro (the "Bylaw"). However, after the public hearing, Council resolved that the bistro would be permitted only with a food-primary license - a license typically issued to restaurants. This, of course, would thwart Mr. Rodgers' plan to open the liquor store on the Band Lands (which required a bistro operating pursuant to a liquor-primary license).

A flurry of activity followed the District's decision, including a delegation from the Sechelt Indian Band, which asked Council to reconsider its decision. Council agreed, rescinded the second and third readings of the Bylaw, and convened a second public hearing.

The second public hearing was more controversial than the first, with many people expressing concerns about the liquor store. Ultimately, Council rejected the Bylaw. After the vote, various Councillors made comments about the rezoning, with Councillor Thirkell stating that "although I am married to a native, I do not believe that the natives should be allowed to sell liquor".

In mid-June 2007, the LCLB cancelled the liquor-primary license which Mr. Rodgers planned to use for the bistro and terminated the application for the liquor store license.

Was the vote "bad"?

Mr. Rodgers challenged the vote to reject the Bylaw...