UBC Maximizing Housing Density by Minimizing Legal Compliance

How far will UBC go to fulfill their market housing ambitions? Sure, they’re willing to trample on the toes of students and residents alike, but are they willing to disregard the law?

The answer to that question appears to be a resounding “Yes!”.

Next week (April 25), UBC will be holding a public hearing regarding proposed amendments to the UBC Land Use Plan (LUP). This public hearing is needed to formalize the designation of Gage South as “Academic” land. However, at the last minute, UBC snuck in a second proposed amendment which is even more consequential than the Gage South one. Usually, when UBC does something sneaky in the campus planning realm, it’s viewed as being underhanded but technically allowed. This time, however, they’re on the wrong side of the law.

As a quick background, in 2010, UBC was given power over the development of campus lands, with only token oversight by the province, under the ironically-named Municipalities Enabling and Validating Act (MEVA). Under MEVA, UBC was given direct power to amend their Land Use Plan (LUP), a high level document which determines what parts of campus are to be used for academic uses, greenspace, market housing, and so on. Within MEVA, there is a set of protocols that must be followed to make amendments to the LUP.

According to the law, UBC is required to “provide one or more opportunities the board considers appropriate for consultation with persons, organizations and authorities the board considers will be affected by the proposed land use plan [amendment]“ and a subsequent Ministerial Order gave further instructions specifying that this consultation is in addition to a public hearing, and that said consultation must be “early and ongoing”. These are not simply suggestions, these are legal requirements.

The Gage South consultations that took place this year are an example of the required consultation. They went on for more than a year. As a result of these consultations, a LUP amendment is going to the public hearing next week to change the area’s LUP designation from “Area Under Review” to “Academic”. While the Gage South consultations were biased at many points, it is inarguable that early and ongoing consultation about the topic was indeed undertaken by UBC in accordance with MEVA and the ministerial order.

However, once the proposed LUP amendments arising from the Gage South consultation were presented to the Board of Governors in April, a new, largely unrelated, proposed LUP amendment was inserted into the package. This proposed amendment establishes minimum floorspace allocations to all private housing neighbourhoods on campus. Consultation on this proposal was neither early, nor ongoing. In fact, no consultation was done at all.

The surprise amendment would add a new section to the LUP:

Section 5.1.4 Neighbourhood Distribution
The UBC Board of Governors adopted residential floor space allocations for neighbourhoods on campus to ensure a future population that would support a sustainable community and to transfer the floor space that would have been accommodated on the UBC Farm and other areas to new neighbourhoods (see Land Use Plan Next Steps: Neighbourhood Distribution Report, April 2011 to Board of Governors). Achieving these floor space allocations is essential to UBC’s academic mission, student housing goals, faculty and staff housing goals, endowment value and sustainable community goals. All residential floor space not achieved in these neighbourhoods will be located to different parts of campus in future.

To reiterate: consultation on this proposal was neither early, nor ongoing. It was not done at all. The LUP amendment protocols set out in MEVA and the ministerial order were blatantly ignored. IANAL and all, but it definitely appears that UBC is violating the law by sending this amendment to public hearing at the current time.

This amendment is not a minor tweak. It’s a major amendment, much bigger in scope than the Gage South amendment. It fundamentally changes the way that housing density is treated in the LUP.

The current structure of the LUP uses the language of maximums. Buildings have a maximum height (65 m). There is a maximum overall density (2.5 FSR) and a maximum density for any single property (3.5 FSR). There is nothing in the document requiring a minimum amount of housing to be built, only a maximum amount. The effect of this amendment is to establish minimums. In the wording of the amendment, achieving these floorspace targets is “essential” and if not achieved, the housing will be built elsewhere, including on academic land.

Where this proposal crosses the line from highly inappropriate to outright offensive is that the floorspace allocations in yet-to-be-built neighbourhoods are equal to the maximum allowable densities. The minimums are the maximums.

“Stadium Road” is a neighbourhood that lies directly east of Thunderbird Stadium. It’s currently an empty practice field. There are 993,000 sq. ft. of housing allocated to it. In order for Stadium Road to achieve all 993,000 sq. ft. of floor space assigned to it, every single site must be developed to a 3.5 FSR. Every single building in the neighbourhood must be a large tower close to, or at, the 65m height limit.

This is also the case for the “Acadia East” neighbourhood which also hasn’t yet been built. In order to achieve the 2,594,000 sq. ft. allocated to it, every single development must have an FSR of 3.5 and be close to the max height. According to the amendment, if anything less than these amounts are built, if even a single building in either of these neighbourhoods doesn’t achieve 3.5 FSR, the shortfall will be placed elsewhere. However, it will be impossible to transfer this floorspace to any other piece of existing neighbourhood land, since those neighbourhoods are either fully built, or already committed to accommodating the absolute maximum floorspace allowed under the LUP. UBC would likely look to convert academic land to land for market housing and would be able to claim that this is required by the LUP, a requirement they are ultimately imposing on themselves.

This makes a mockery of neighbourhood planning exercises that are still to come for unbuilt housing areas. If UBC really wants to insert floorspace allocations into the LUP, the neighbourhood planning process is exactly the type of consultation UBC should be required to undertake prior to amending the LUP, to fulfill the conditions contained in MEVA and the ministerial order. When UBC revised the Wesbrook Place neighbourhood plan, they met stiff resistance from residents resulting in a rejigging of building orientations, spacing, and heights in the neighbourhood to change how the neighbourhood would look and function in the built form. The floorspace allocations for the unbuilt neighbourhoods were determined without seeing what it would look like in the built form or if the maximum floorspace allowable was actually feasible. It was simply a back-of-the-envelope calculation of what the maximum allowable floorspace was and setting that as the target. Why in the world should UBC be bound to these numbers as part of the LUP when they haven’t even been validated as being feasible, let alone practical?

A note should be made that UBC has attempted to deflect these sorts of problems by making it so that the floorspace targets are not hard numbers, but are in fact hard numbers with little asterisks beside them. The asterisks denote that “*Floorspace in these areas may be reduced [...] subject to Board approval,” although it then goes on to list other numbers as minimums even within Board-reduced scenarios. The problem is that the LUP and a board resolution do not exist in the same legal sphere. The standard to change the LUP (when that process is not being ignored) requires more time, more consideration, and more hoops to jump though. More key, however, is that while UBC’s Board proposes changes to the LUP, the province is ultimately the authority that enacts those changes.

The standard to modify, repeal, or pass a new board resolution is much lower than for amending the LUP. It can be done privately via email. So even if the board approves a resolution to approve a reduced floorspace target, in theory it shouldn’t actually change the LUP because the standard required to change the LUP was not upheld. The asterisk represents the board attempting to claim that powers held by the province (namely the ability to amend the LUP) have been delegated to itself and that a BoG resolution should be as binding as provincial legislation. The act is clear on the amendment process, and there’s no provision in the act to create a new process by way of the plan itself. The power of amendment is given to the minister, and the minister cannot delegate that power to the board.

This whole situation is yet another example of UBC’s failure to adequately govern campus with the powers given to them in MEVA. Consider this entirely speculative, but likely highly accurate scenario. When UBC and Metro Vancouver were having difficulties and in the midst of their divorce, UBC probably had direct contact with provincial government officials in charge of drafting MEVA. They would have had the ability to influence the way MEVA it was constructed. They were essentially allowed to dictate the terms of their independence. Less than two years later, they seem to have decided that even the rules they agreed to follow need not apply to them.


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