The following was originally published as a guest column in the Province newspaper on August 20, 2014.
I have the privilege of being a Vancouver community garden permit holder in the Arbutus corridor, and as is the case with many of the gardens, it turns out that mine partially encroaches on CP property.
Most of the public discussion regarding this matter has been on “legal rights,” which is perfectly fair, but I would also like to discuss some ethical and practical considerations and refocus on this corridor’s potential to add public value to our beautiful city.
How many cities have the possibility of an 11-kilometre greenway meandering through them? It would be incredibly short-sighted to make land-use decisions here solely on the basis of a 19th-century style dispute between a railway and sodbusters.
The repeated retort that CP has a legal right to this land is diversionary and unhelpful. All of the gardeners I know along the corridor are not claiming that they have a legal right to garden on CP property. It is CP land, no question, given to them by the B.C. government in 1885, and CP has the legal right to remove portions of gardens that are encroaching.
Let us, however, look at the recent history of this land. In the 1990s, the CPR wanted to develop the Arbutus corridor as residential and commercial real estate. It would have had an incredibly high value with such zoning.
The city, however, zoned the land as a “transportation corridor,” reflecting what had been its actual use since 1902 when the CPR built a rail line down the corridor from False Creek to Steveston.
CP objected to this zoning, arguing that it amounted to expropriation, because that zoning made the land virtually worthless to them, as they no longer had customers for the route and no reason to continue running trains on it. CP fought the city through to the Supreme Court of Canada, who decided that the city was completely justified in zoning the CP land as a transportation corridor, and that the city was not legally required to compensate CP for the effect of the zoning.
Although CP understands very clearly that they have no legal right to have their land rezoned residential or commercial, nor the legal right to realize a value for their land commensurate with that use, they do see that citizens of Vancouver are enjoying the land and have determined to cut off any public use of it, even at significant expense to themselves.
At public meetings held earlier this year by CP real estate representatives, they admitted CP is doing this because it could not get the city to buy the land at the price they wanted (rumoured to be around $100 million).
CP is making use of the land rights they do have as an irritant to achieve a goal to which the Supreme Court of Canada held they had no legal right. Tactics such as these are perfectly legal, but they are also callous, calculating and far below any ethical standard we would expect from a good corporate citizen.
Nonetheless, we may have an option to break this logjam that would provide CP with a development opportunity, and preserve the incredible legacy of greenspace through the middle of a city without reaching into taxpayers’ pockets.
I would support the concept of allowing CP to develop certain portions of their land adjacent to already commercialized intersections in exchange for gifting back the remainder of the land to the city as a transportation corridor for cyclists and pedestrians.
I would stipulate that bike and walking routes must be retained in any places they develop, and any development must conform to the relevant zoning and planning requirements of the area surrounding it, including robust public consultation. No extra density, no extra height, no incompatible uses.
This compromise would give the city what it says it wants, without financial outlay. And CP could realize substantial profit from these lands that are otherwise of no value to them.
Given CP’s tactics, it may be tempting for the city to play hardball, too, and act within its strict legal rights: i.e., refuse to pay, refuse to rezone and refuse to co-operate. But that’s not the way to any resolution, and it could mean this unique greenway slips through our fingers.
The City of Vancouver can be a leader. It shouldn’t make the decision on the basis of gardens and threats, but on the legacy of a civic asset beyond measure with full respect to the taxpayers of Vancouver, many of whom do not believe a significant expenditure is justified in the face of pressing issues like our housing and homelessness crisis.
— Cleta Brown was formerly general counsel to the B.C. Ombudsman and a Crown prosecutor. She is currently running for Vancouver City Council with the Green Party of Vancouver.