In his open letter to me published in the Citizen on Dec. 14 (“You can still listen to public after public hearing”), Mr. Boname posits the notion that it would be completely proper for the public to provide input to elected officials on rezoning applications even after a Public Hearing on those applications is complete.
One of the phrases that pops up in his legal opinion, though, is the notion that there can be no “new arguments” presented in any communication that takes place subsequent to the Public Hearing. And that is key. The difficulty arises in defining and determining whether any of that post-public hearing information/input is “new”, and whether, indeed, it thus has the potential to affect the decision-making process.
This is all about transparency. The public has a right to know and understand ALL of the information upon which council makes its decision on a rezoning application. The law clearly says that a Public Hearing is the proper forum for this information to be presented.
And the case law on this is interesting. I don’t have the reference handy, but I recall reading of a specific case where an entire rezoning process was disallowed because, after a Public Hearing had been completed, a councillor took a quick tour of the property in question — a tour hosted by the proponent. There was, as I recall, no testimony presented on the substance of the information the councillor was given during that tour. The very fact that this councillor changed his/her vote subsequent to that tour and that communication — irrespective of the particulars of what was discussed at that time — was deemed sufficient grounds by the judge to negate the process.
I expect the same would be true in the opposite instance. For example if I, for whatever reason, had decided to have a coffee with one or more of the opponents of the recent proposal to rezone a piece of property on Donnay Drive and subsequently change my vote (irrespective of the specifics of the content of the discussions over said coffee), the process would have been jeopardized.
Interestingly, Mr. Boname’s legal opinion seems to confirm all of this when he refers to the need to hold another public hearing if new information is presented. While that may seem perfectly reasonable to some, it creates the potential for a never-ending cycle of Public Hearings and “new input”; it would be very simple for a few determined troublemakers to ensure that an application could be stalled indefinitely.
All of this is to say that I am firmly of the belief that we don’t tempt fate.
Whether it’s a coffee or an email communication, any contact with the objective of having a councillor change their position after the conclusion of a Public Hearing would put the “transparency” piece in doubt.
Hence, it would be legally questionable and potentially prejudicial to the process.
Al Siebring
North Cowichan councillor
