This week on Legally Speaking with Michael Mulligan:
What’s the secret to unlocking more housing supply in municipalities like Oak Bay, Victoria, and Sanich? Today, we uncover the implications of BC Government’s Housing Supply Act and what it means for these targeted municipalities. We discuss the process that the government will undergo to set housing targets, including the appointment of an advisor who will act as a “mole” within the municipality, gathering vital information on housing development progress.
As we navigate through the challenges and delays in this process, we also tackle the implications of the Housing Supply Act on the power of municipalities to regulate the building of houses. We weigh the pros and cons of setting legislative time limits on processes such as rezoning and construction project approvals. Don’t miss our reflections on the image of provincial officials entering municipalities to write a report on why they are too slow in building houses, and what the next steps ahead may be for the Minister in terms of appointing an advisor and setting a housing target. Join us on this eye-opening journey into the world of housing development.
An automated transcript of the show:
Legally Speaking June 1, 2023
Ryan Price [00:00:00] I love our regular Legally Speaking segment with Michael Mulligan, and I have had occasion to speak to Michael Mulligan on this segment when I’ve been filling in and it’s always a wonderful chat. So, looking forward to today. Michael, hello, how are you?
Michael T. Mulligan [00:00:14] Good morning, Ryan. I’m doing great. Always good to be here.
Ryan Price [00:00:16] Yeah. And I’m also excited because one of the main themes of the show so far today, Michael, has been on the B.C. government announcing the list of which municipalities will be targeted by the Housing Supply Act. And locally, of course, as we’ve been saying over and over again, it’s it involves Oak Bay, as long as Victoria, as well as Victoria and Saanichton, Oak Bay is the other one, which I personally think is where the drama comes in locally. Victorian and Saanich sure are going to have a big part to play in this, but another municipality that historically has not been friendly to development of any kind is on the list, is on, is in the sights of the of the government. But anyways that’s one of the big conversations of the day. But you, I’m sure, have a slightly different take on it when it comes to the legalities of all of this. So where do you want to go with this today?
Michael T. Mulligan [00:01:08] Sure. Well, I’m sure we’re all anxiously waiting for the announcement of the 30-storey supportive housing tower somewhere in the Uplands. But before that comes about, I thought it would be useful to review what exactly does it mean to be targeted by this particular act.
Michael T. Mulligan [00:01:25] okay.
Ryan Price [00:01:25] Called the Housing Supply Act. How does that work? And it also answers why the government didn’t announce, what is your target? Which is naturally the question to be asked, right? These identify these various municipalities that what have you identified them to do? And looking at the legislation, it’s apparent what’s going on. And I think it will also allow people to assess whether this targeting under the Housing Supply Act is likely to have the desired result, which would be, of course, more housing supply, right?
Ryan Price [00:01:56] Yeah, that’s the goal.
Michael T. Mulligan [00:01:57] So that’s the goal. Right. And here’s sort of the big picture, of course. Right? Municipalities and governments don’t build houses. They don’t have a team of people with hammers. Nobody’s coming up out from the municipality to pour any concrete. What the municipal governments have the capacity to do is to stop people from building housing. Right? They don’t have people with hammers, but they’ve got an effective legal stop sign telling people, stop. And so, you know, there are a litany reasons why, of course, that happens. We heard some of those from people that called in earlier that I heard people talking about migratory birds and earthquakes and barking and all kinds of things.
Ryan Price [00:02:37] yep.
Michael T. Mulligan [00:02:38] People they come up with to stop anything being built anywhere near them. Right. And so, the purpose of this piece of legislation, I think, is to try to reduce those sorts of efforts to stop other people from building houses, because that’s all the government can do. They don’t build anything. And so, the way this act works is that indeed it is possible for the minister to set a housing target for a municipality, but they can’t just do that in the abstract. There’s a requirement and the requirement before they can even set a target is ser out in Section three of that act. And it provides that if they are things that are available, the Minister must consider a whole list of things before they even set a target. And that’s why we had this announcement of these are the ten municipalities, but no number listed next to them. Right. And when you go down in the legislation, the list of things that the minister must consider before they can even set a target, you sort of go along down, down, down the list oh ‘F’. ‘F’: A report made by an adviser under Section 10. Hmm. So, we have to look at what is this report. And so, you move ahead of the legislation. And indeed, Section 10 of this Housing Supply Act requires that before an adviser, that an adviser must, once they’re appointed, without delay, is the language, after conducting a review under Section 8. So if you go back to Section 8, produce a report for the Minister, which would set out a variety of things, including, for example, actions that may be taken by the municipality to meet housing needs, actions that might be taken by the Minister, various revisions to methodology that use by the minister, various things must be in that report. But before that report can be prepared back to Section 8. And that requires, first of all, that the Minister appoint one or more advisers to prepare this required report, which the Minister then must consider before they can even set a target. And so, the next thing to watch for is going to be, does the Minister do that? Do they appoint advisers? Are they, they’re maybe the former school bus drivers will take jobs as advisers. I don’t know.
Ryan Price [00:05:00] That’s where they all went through.
Michael T. Mulligan [00:05:02] They all went down wanting to be advisors. Maybe there’s a pay bump, I don’t know. Or they could do it between their split shifts. That’s possible too. So, these advisors would be appointed by the Minister. And then the concept, I must say, I smiled as I read the thing. They effectively act like a bit like a government mole being inserted into the municipality.
Ryan Price [00:05:26] Oh, interesting.
Michael T. Mulligan [00:05:27] Because the advisor who gets appointed by the minister then has powers that compel employees of the municipality to do various things for them, and the advisor can do things like enter the office of the municipality, requires employees to permit them entry, requires employees of the municipality to give the advisor every reasonable assistance, requires employees of the municipality to provide information to the advisor, requires employees of the municipality to provide access to records. So, what it seems to contemplate is that some person appointed as an advisor will turn up at a municipal hall and say “Hi, here I am the advisor, show me your records”. And then it permits this advisor to go through municipal records to review things, including actions that the municipality has taken towards meeting housing supply targets, reviewing policies on municipality, reviewing progress they’ve made, any actions they’ve taken. They can go through all the records of the municipality to get all of this information with compelled assistance from the municipal employees. Then, once that adviser person has gone through all those records they are required to, and the language in here is, without delay, produce a report for the minister, which would include various things like actions that have been taken, actions the minister might take so forth to then provide that to the Minister, who must review that report before the Minister is able to set targets. And that’s why we have a list of municipalities but no numbers next to them. The Minister needs to appoint this adviser mole person, send them off into the various municipalities. Somebody is going to show up at Oak Bay City Hall and knock, knock, knock, here I am and gather information. You can imagine that may not be the most welcoming attendance. You probably get a happy reception as the friendly school bus driver shows up and the provincially appointed advisor there to check up on what exactly Oak Bay is doing to help get out of the way of building things. They even have to prepare this report with all that information in it. Then they have to give that to the Minister. The Minister must review it and only at that point can the Minister write down a number or other policies. Right. So that’s why there is a delay. It’s going to be very interesting to see how long that takes. Right. How long does it take to hire these people? How long, what is … There’s this legislative requirement in section ten to produce the report without delay. Well, what does that mean? Right?
Ryan Price [00:08:20] Yeah, without delay. It’s a fairly flexible deadline.
Michael T. Mulligan [00:08:24] That’s right. You know, and you can imagine in some circumstances, like, you know, you can imagine a municipality that really doesn’t want anything built here like Oak Bay. Right. Maybe entirely hostile to the adviser showing up. You can imagine that not being a swift process. We’ll see. But the Minister is now waiting or has to wait for those things to happen. Hire the people, get them, help review the material, write a report, give it to the Minister. Minister, and then set these targets. But, of course, writing down a target for how many houses are going to be built in a municipality doesn’t cause any houses to get built in the municipality. Again, no one has any hammers. This legislation doesn’t provide money. It doesn’t involve hiring people. It doesn’t do any of that. Right. And really all that can be done is to try to force these municipalities to take the brakes off. Right. And so, it’s obviously going to take some time. This is hardly a swift answer to anything, because then after the municipality gets the report of the adviser. The Minister can then set targets and then the act contemplates the process to monitor sort of how the municipality is doing. Right. Have the advisers check up on that. You know, how many houses have been built in Oak Bay, how many townhouse units have been built, whatever is set out as a target. And it’s only after all of that that you could have a circumstance where the Minister would be permitted to do things like issue a specific permit or to amend the bylaw. And in some cases that can be done by the Minister. In other cases, it requires an order in council. But you need to think carefully about what does that really mean? Is the plan to have the, you know, the Minister or the cabinet sitting there with townhouse plans for various municipalities? What exactly is that going to amount to? Also interesting, is this. While the Minister can issue directives to do things like amend a bylaw or issue a permit. The there’s a limitation that one of the directives can be that it cannot, it can do nothing, the Minister can’t do anything which would alleviate other requirements like requirements for notice, a public hearing, consultation of minister approval this that all the kinds of things which act to put the brakes on somebody trying to build anything anywhere near anything. Right. All of that public input where people can show up and talk about there is going to be no parking. And what about the migratory birds? And what if there’s a what if there’s a tidal wave and, you know, this is going to shade my house, or what about the deer or, you know, whatever.
Ryan Price [00:11:18] yeah.
Michael T. Mulligan [00:11:18] what about that tree, we have to come down. All of that process is going to remain in place. And so, I’m hard pressed to see how with this legislative scheme, anything is happening anywhere, anytime soon. We’re likely to be months away by the time these people get out and prepare reports, so they get reviewed, and targets get set, things get reviewed further and so on. And maybe that’s intentional. Maybe that’s just considered an appropriate process because, of course, there’s politics behind all of this, right? Everyone agrees we need more houses for people to live in of all times. We should get on with building them. But as it’s apparent when you ask anyone about it, no one wants any of those things happening anywhere near them.
Ryan Price [00:12:06] We need a lot of housing. Just not in my neighbourhood.
Michael T. Mulligan [00:12:09] Everywhere except.
Ryan Price [00:12:10] Yeah, yeah.
Michael T. Mulligan [00:12:10] It’s like everyone wants the speed limit in front of their house to be 10km an hour. And they want, they want everything else to be the autobahn.
Ryan Price [00:12:17] Right. Exactly. Yeah. I mean I definitely want; I definitely want a 10km speed limit for everywhere that I’m not commuting. Yeah, that’s right.
Michael T. Mulligan [00:12:24] Yes that’s right.
Ryan Price [00:12:25] Yeah.
Michael T. Mulligan [00:12:25] Exactly right. So that’s human nature. And if you’re the government and you’re of course concerned with the political implications of all these things, you’re going to have a bunch of aggrieved people. You know, good luck getting votes in Oaky Bay if you order by legislation some power to be built that everyone is all grumpy about and complaining about their parking problems. Or what about, you know, what impact is that going to have on the owls that live down the road or whatever it might be? Everyone’s going to be aggrieved, right? And so, all politics is local. And if you’re the provincial government, you’re probably aware of all that. Right. And so, it’s going to be really interesting to see just the timing of this. It may be intended to be sort of a talking point. Look, we’ve got this thing. We set these goals for really cracking down on all this. But my guess would be looking at this scheme with the need to appoint people, review things, prepare reports, set goals, and review those all before anything is ordered to happen. Probably nothing happens, meaningful, meaningfully in terms of actually people with hammers and so on, constructing things until after the next provincial election. And maybe that’s just the way it is. Or maybe that was carefully thought about. It’s hard to say.
Ryan Price [00:13:41] Yeah.
Michael T. Mulligan [00:13:41] But if you expect that the Housing Supply Act to suddenly start having, you know, townhouses popping up on Oak Bay Avenue, you’re probably going to be disappointed, at least in the short term. If something is to be done to sort of overrule the natural inclination of everyone to protect their, you know, neighbourhood. It’s going to take some decisions that are going to aggrieved people in various neighbourhoods. It Just will, and this doesn’t seem to have quite the teeth one would expect if that was really what the goal was. Remember of course all these municipalities are just statutory creations of the provincial government. There’s nothing stopping the provincial government from just legislating away the power to have public hearings or legislate away zoning requirements. Or one thing that came to mind, I must say as I read all of this and all the process and so on, one idea that perhaps should be contemplated would be to set timelines, because one of the ways in which local groups stop development is just stopping it, slowing it down.
Ryan Price [00:14:55] Well, we had a story just on that point. I don’t mean to interrupt, but the fellow who owns the Roundhouse development. Who’s trying to get approval to continue along that process. They’ve done the Bayview Towers, but he was he put out a public letter pleading for the city to approve his latest phase quicker because he said something about how it costs $1,000,000 a month for him to sit on that thing. And the longer these delays go, the more he’s costing. So, but you’re right. If a municipality just kicks these things down the road enough, the costs get so prohibitive, nothing happens.
Michael T. Mulligan [00:15:27] You’re exactly right. And that impacts not only large developers, but small ones. You know, somebody wants to build a duplex or, you know, a little townhouse or something. Then the zoning process can take, you know, over a year, year, and a half more than that in some places. And all that time, some person who wants to build something is paying for the thing, and not doing anything and that drives up the cost of housing, slows everything down. So, if there is a, if somebody is asking me what might be an effective piece of provincial legislation that might meet some balance between permitting people to have some input into things, you don’t have a slaughterhouse going in, you know, next to the, you know, pool in Oak Bay or something. But without permitting things to be endlessly bogged down.
Ryan Price [00:16:16] Could have been a way to do it. Look, we’re extremely late for our break here. Michael Mulligan is here with our Legally Speaking segment. Hold on. We’ll be right back. And we’ll continue this line of thought. And you might have some other ones as well, if we can squeeze him in. So, we’ll get to that in just a moment here on CFAX1070.
Ryan Price [00:16:31] It’s Ryan Price filling in for Adam. We’ve got Michael Mulligan doing Legally Speaking. Michael, I got a text that just simply says, thank you. Michael Mulligan is brilliant. So, there you go.
Michael T. Mulligan [00:16:43] Well that is a good text. I would encourage more of them.
Ryan Price [00:16:45] More texts like that.
Michael T. Mulligan [00:16:47] More texts like that. That is great.
Ryan Price [00:16:49] I don’t know where we want to go from here, Michael, because you didn’t have a second possible topic, but I don’t know if we still have more to say on this housing issue, which really has been such a fascinating look into the BC government’s announcement that they have these ten cities around BC, including Victoria, Saanich and Oak Bay that are the first ones to get targeted by the B.C. Housing Act and the one day targets that will be placed on them for housing approvals. But as you’ve been explaining, the actual process that flows from here is, is quite detailed, interesting and will take a while. But do we want to say any more about that? Do we want to change topics? Where do you want to go?
Michael T. Mulligan [00:17:28] Sure. Here’s my final thought on that was that, of course, everything the municipality are doing. They’re just organs of the provincial government. All of their power is delegated, so any of it can be changed. And if there is a suggestion that I would have coming from reading this in part, is that if you wanted to make a meaningful change with respect to how many houses can be built or how many houses can the municipality stop, which is really all they can do. They can’t build anything would be to set legislative time limits on various steps, like, for example, how long rezoning might take or how long a municipality would have to approve a construction project. That would be something that the provincial government would be able to do that would avoid the slow walking that seems to go on in many places. And it would just be an amendment to the legislation that permits municipalities to do anything. You could give them 30 days or 60 days or whatever you thought was appropriate to approve a development request or to consider a rezoning application rather than having things potentially drag on for years. And so that, to my mind, reading this would be perhaps a more effective way of actually getting some things built by getting municipalities out of the way. So just a food for thought. And what might be more effective than the Housing Supply Act and the requirements to prepare reports in a timely way So we can see that that’s what that is.
Ryan Price [00:18:58] And you’ve painted this picture. Sorry, this is a little tongue in cheek, but after you described the special, special advisers going into these municipalities like moles, I just have this image of these, you know, men in black, guys in black suits and black ties and sunglasses marching into municipalities in their town halls saying, I’m here and I’ll look at your records and prepare the report.
Michael T. Mulligan [00:19:22] And imagine the municipalities are going to be just very fast in terms of providing material to the unwelcome provincial. They’re trying to write up a report about why they’re too slow and building houses on Oak Bay Avenue. So, that should make for some good some good comedy, if we could see what that attendance looks like.
Ryan Price [00:19:41] Yeah, it is an interesting thing. And that’s I guess, yeah, with the access is going to happen. So, we’ve got the list of ten municipalities that will be going through that. But as you’ve said, there’s not necessarily, not necessarily a timeline on that. Others, you know, just as soon as possible are given as the as the timeline. So how long does it take for those special advisers to get in there to investigate what each municipality is like? What kind of changes need to be done to stop those municipalities from putting on the brakes, as you’ve said? You know, that’s the only thing they can do there. These municipalities don’t build things. All they do is put the brakes on building things or, you know, making sure the right brakes are applied, depending on how that municipality feels about development. And so, it’s complicated that that’s what is going to have to happen. Then the Minister is going to have to make a decision. And you suggested it could even be, you know, after the next election that anything happens. And I wonder if maybe that’s the point. Maybe this is all just a bustle of activity to look like things are happening. Whereas, as you said, there were some simpler things that could have been done immediately, but those courses of action were not taken.
Michael T. Mulligan [00:20:47] I think you’re right. I mean, in a sort of this whole multi-stage process, there are no numbers because the Minister can’t a number because the Minister, first of all, has to get the mole, wait for the mole to prepare.
Ryan Price [00:20:59] Mole
Michael T. Mulligan [00:21:00] Then then prepare, then prepare a target, and then we can see.
Ryan Price [00:21:05] yep.
Michael T. Mulligan [00:21:05] How’s the target going? And only then might you be able to make some, you know, approve some particular project, or amend some bylaw but still can’t do things like you. What do you do if Oak Bay just decides yes, the public hearing on this unwanted seven-unit townhouse is going to occur in 2026 or something? Well, I guess you’re just stuck with that. And so, I don’t, it doesn’t seem to me that this particular piece of legislation is going to cause the brakes to come off very much at all, at least in the short or medium term. And there are, of course, other things like I just mentioned, that could be done.
Michael T. Mulligan [00:21:42] Yeah.
Ryan Price [00:21:43] And so it’ll be interesting to see whether the government does any of those things because if we don’t, I rather suspect the similar conversation is going to be had two years from now about, boy, do we all want more houses. But boy no one seems to want them near anyone. And so, there’s just a decision that has to be made about that, somebody is going to be upset. And so, we have a current circumstance which allows the local people who are upset to rule the roost and even more so in a place like Victoria where we have, what is it, 13 different municipalities.
Ryan Price [00:22:18] yep.
Michael T. Mulligan [00:22:18] So nobody has any particular concern that goes beyond, you know, a few blocks of or whatever. Right. Their concern is just what about Oak Bay? And nobody wants anything in Oak Bay. The Oak Bay councilor has no particular regard for, you know, what’s happening on the West Shore, what’s happening in the region, let alone the province. And so yeah,
Ryan Price [00:22:36] They’re responsible and the voters of Oak Bay and the voters of Oak Bay only if you’re a councilor there.
Michael T. Mulligan [00:22:41] That’s right.
Ryan Price [00:22:41] Yeah.
Michael T. Mulligan [00:22:41] So if you have 13 tiny municipalities and everyone in the municipality wants nothing, build anywhere near anywhere where they live, you end up with a circumstance where nothing gets built anywhere.
Ryan Price [00:22:50] Yeah.
Michael T. Mulligan [00:22:51] And so either we leave that alone or we make the decision to aggrieve the people locally. And this seems like it’s pretty obvious why this piece of legislation is so tentative because they don’t want to aggrieve people locally because that’s who elects them.
Ryan Price [00:23:06] Yeah, well, what if this were what if the moles go into the municipalities and come back with the suggestion, hey, what if we just put a timeline on this? What if it’s just six months? There you go. So maybe. Maybe we’ll get there anyways.
Michael T. Mulligan [00:23:18] Maybe we’ll get there. We can cross our fingers and hope for the best with them all.
Ryan Price [00:23:24] You crack me up. Michael Mulligan, thank you so much. This has been legally speaking. We’re out of time and I look forward to hearing from you again every Thursday at 1030. Thank you.
Michael T. Mulligan [00:23:34] Thanks so much. Have a great afternoon.
Automatically Transcribed on June 2, 2023 – MULLIGAN DEFENCE LAWYERS