Does downzoning - reducing the uses or number of dwellings allowed on a property - open the possibility of a legal challenge?

The question was considered by the Official Community Plan (OCP) Volunteer Review Committee (VRC) at their Feb. 9 meeting.

Planner Patricia Maloney said that a landowner-initiated downzoning is possible, but if the initiative comes from the Trust, it opens the Trust up to legal challenge and a requirement to compensate the landowner. She said that case law supports the position that governments can’t decrease the value of someone’s land.

Trustee Sheila Malcolmson responded that in fact in a previous OCP Trustees had successfully downzoned the forest land in the centre of the island. She said they did this by setting up the ability to create a density transfer. Meeting attendee and Advisory Planning Commissioner Jacinthe Eastick added that the Province “had already downzoned forestry land in the first place”.

Malcolmson said: “In BC … we have been given, in our legal sections at Trust Council, lots of examples of when local governments have downzoned and how you do it, and the OCP review is definitely the time to do it and if you do it in the right way, and are not unreasonable (or) … malicious”, it is possible. She said Maloney was right that it has to be done very carefully and is certainly unpopular, and must be done with “vast public support” but it “doesn’t necessarily mean that you are going to compensate the landowner”. She said: “We’ve been told by legal council … that zoning is at the whim of local government”.