Preventing Southlands greenhouses could force lawsuit: municipal report

Greenhouses at Boundary Bay Airport stretch as far as the eye can see.

Adrian MacNair photo

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Delta council has learned that any attempt to rezone Century Group's Southlands properties to prohibit the building of greenhouses, should their housing application be denied a second time, could result in a significant risk of legal action.

The municipality received three separate legal opinions suggesting Delta could become embroiled in a lengthy and expensive court battle that could result in a substantial damage award for Century Group.

Century Group president Sean Hodgins has previously said the company would consider greenhouses and other industrial farm uses if their 950-housing unit development proposal is rejected.

Municipal solicitor Gregory M. Vanstone, wrote that rezoning bore the "potential for allegations of misfeasance of public office" (abuse of power).

Vanstone noted a similar challenge was made in the case of Windset Greenhouses against the Corporation of Delta a decade ago, which went to the BC Supreme Court before the municipality was found to be acting outside of its powers.

"This type of challenge is especially problematic for the municipality, as the plaintiff, if successful, may be entitled to recover all damages, including reduced market value and/or loss of profit, that it suffered as a result of the adoption of the bylaw," wrote Vanstone.

A second opinion from John Alexander of Cox Taylor confirmed that since the Southlands aren't in the Agricultural Land Reserve (ALR) and therefore are not within a "farming area" as defined in the Local Government Act, council is powerless to create bylaws preventing industrial agriculture.

"There is a significant risk that a bylaw which goes beyond regulating land use and perhaps exceeds the power to regulate the conditions of use, and strays into the area of regulating the activities of particular owners or business activities or operations could be struck down," he wrote.

Even if Delta does proceed with rezoning the land, Alexander said Century Group could apply to have the properties put into the ALR, which would give the Agricultural Land Commission precedence over local bylaws.

A third legal opinion provided by Davis & Co. also concluded that rezoning would lead to a legal challenge on the grounds of "bad faith, unreasonableness and/or lack of statutory authority."

Southlands properties are located in Tsawwassen just north of Point Roberts, between Centennial Parkway and 56th St.

Sean Hodgins will make another presentation on Century Group's proposal at Delta council's next meeting, Monday, Oct. 15 at 7 p.m. As well, the Corporation will host a public information meeting on Southlands on Thursday, Oct. 25, from 3-8:30 p.m. at the South Delta Rec Centre in Tsawwassen.