Only now can we appreciate why those grey faces pinched like a clown’s balloon at the neck with red ties aroused themselves from their solitary cell block offices when a little property dispute deep in the barbarian jungle of Commercial Drive flickered alive on their glowing screens. What could the fate of Salsbury Garden, a private lot lost in the matrix of countless graph paper blocks by which the living breathing city appears to them in the Planning Department, matter to them, those who toil day by day in the department of making plans?

This particular lot, empty of houses its whole existence since this rainforested land had first been felled, had come, amidst the noisy dusty bustling growth of a major city around it, to be possessed by some who moved into the area as a secret neighbourhood park. The one who built the craftsman house early last century purchased the adjoining empty space to provide his daughters a private playground all their own. It thereafter remained unbuilt even as deed to it passed through the hands of subsequent owners, while trees of various species loomed larger over it with each passing decade, enshrouding it, leaning over it, and protecting the fragile existence of the void it was, which we’re told nature abhors, but it’s really us who do.

Some neighbours planted a garden in it, and they cleared its dead branches and nurtured its shrubbery and trees, and invited friends to come into its cool reprieve, a space of quiet and calm hidden to passersby not initiated into the secret life there bequeathed by an absent and benignly unconcerned owner.

It was bound to happen some day: the lot fell into the hands of builders. The intricate and tortuous legal proceedings that followed have been well documented in previous issues of The Republic and won’t be recounted here. But through it all of it, a mystery remained: Why did The City bureaucrats deploy their top legal team and even call in a provincial legal team to assist them and drag out the affair to such a degree over this one little lot on this chronically overlooked, typically ignored, side of town?

The final result of it all, delivered down from the bench at the Supreme Court of British Columbia, was the striking out of existence the right of neighbours of proposed developments to launch what is called a third-party appeal of a Planning Department permit, at the specially-created Board of Variance. As if to underline the victory, the developer’s own political party, clustered like a cabal around their 6 – 5 majority on the eleven-member City Council, fired the entire five-member volunteer Board of Variance. Present mayoral candidate of the developers’ party, Peter Ladner, starched from hair to socks, a child of Shaughnessy privilege and Four Seasons lunches with Board of Trade heavyweights who buy the expensive ads in his business-oriented newspaper, cited vague allusions of misconduct and over-extended reaches in jurisdiction in his orchestration of the mass firing. One of the fired members, Terry Martin, has since re-emerged, having announced he is seeking an opposition party candidacy for a Council seat in elections this fall.

Though neighbourhood third-party appeals had become tradition in the 40 years since the creation of the Board of Variance, allowing neighbours of real estate developments to mitigate ill effects of granted permits—like avoiding shadows over yards or entangled approaches to property—the judge in the case found that there never was in fact legislation allowing for such appeals. The 40-year-old right, in one sentence declared from the bench, ceased to exist. Now why would The City and the provincial grey men of the bureaucratic ranks celebrate that? And why would the developers’ party hacks step back to allow it without a peep about judicial interference in political affairs? Why would they happily welcome the demise of a long-established and well-functioning institution of democracy at the neighbourhood level?

Had the case proceeded around a more high-profile property in the more gentry-populated west side, it would have attracted far more unwanted attention, and that might have derailed the bigger plan hatched at the department of plans. No, the role of the Supreme Court in striking down the third party appeal process could only be employed in an out-of-view, unimportant, unnoticed property far from the coifed properties of west side land owners. For just a few months later, the current Mayor rolled out from that very same department of plans a whole new range of possibilities for the developers who lunch, a new plan called Ecodensity.

The “eco” part is mere packaging, like a recycled-paper, vegetable-ink, biodegradable wrapper around the same old fat-dripping carbohydrate-heavy soggy flat hamburger now sold as the wise, green, alternative, smart choice. The “density” part is a set of provisions, or rather the annulment of previous provisions, allowing developers to ignore height and space restrictions and density-required provisions of parks and schools in already developed and settled neighbourhoods throughout the city.

As details of what Ecodensity really means and as residents of long-established neighbourhoods realize what is coming to their familiar quiet streets, they have turned to the one avenue that was open to them to appeal the permits granted by the Planning Department to the big builders—the third party appeal process at the Board of Variance. And that is when they discover the third party appeal process is gone, swept aside two years ago in some unknown case involving some nondescript little lot hidden deep in the east side. They have found there is no avenue left by which to register their opposition to radically increased density developments in their own neighbourhoods.

The pre-emptive move shows extraordinary forethought in the supposedly slow-moving bureaucracy at City Hall, and the planners at the department of plans ought to be commended for that. Clearly, when Ecodensity was but a twinkle in developers’ eyes, those of them anyway who looked around the city and saw a finite end to available land for their unending projects, and began casting covetous eyes over the streets of prior development of homes, they anticipated that residents would run en masse to the Board of Variance to slow or even kill the projects they had in mind. Nothing would proceed through the appeals process, senior planners must have advised the big builders, over lunch, tab picked up by the latter, unless that right to appeal were somehow got rid of.

A sticky add-on to the provincial law that established the Board of Variance in the 1960s had it that decisions of that Board could not themselves be appealed, not by the Planning Department, the City Council, the province, or anyone, to any court in the land. The Board of Variance decisions were final. They at the Scheming Department must have known that to attempt to have the Board of Variance itself struck from the books of law may well have brought a serious legal challenge, as it might be construed as a contravention of the law itself establishing the Board as independent. The legal team was called in to scratch down deeper into that law deeply to find another way.

And there they found it: in section 2, paragraph 6 lurked a crack they could wedge open into a chasm. Some ambiguity could be detected by finer legal eyes than most of us have in what was meant by the word “affected,” where the law allowed for third party appeals launched by neighbours “affected” by a proposed development. Did the authors mean financially affected? Did they mean directly affected, as in right next door? It wasn’t clear, the City lawyer, the developers’ lawyer, and the provincial lawyer pointed out to the judge. It wasn’t specified in the way lawyers can find things to be unspecified, as lawyer Bill Clinton expressed most succinctly in his Presidential impeachment proceedings: “It depends on what the meaning of the word ‘is’ is.”

Sides argued for interminable days over what the meaning of “affected” affected, so that the judge was able, in the end, to find the question unanswerable, and unable to consult the minds of the departed who crafted the legislation four decades earlier, the ambiguity was enough for him to slash the offending sentence from the books. And thus did the decades-old right of neighbours to appeal permits granted by the department of planning to builders big and small, die its whimpering non-banging death.

One might expect both The City and the province to be jealously defensive about a judge effectively rewriting their own legislation, especially that which had functioned so well and so quietly without great dispute for so long. But The City and the province were strangely quiet. No move was made to redraft the offending legislation to clarify the ambiguity uncovered in that one little part of the one little section, and no move was made to restore that which had been swept aside in the disposal of the ambiguity. They shrugged as if to say “that’s that, what can be done,” and they left the issue alone, walking away from it as mysteriously as they had come to it in the first place guns a-blazing.

Now we know why. It was The City’s grey suits’ intention all along to see the independent, neighbour-empowering Board of Variance reduced to a rubber-stamp formality in the development permit process just ahead of the introduction of Ecodensity—the developers’ solution to the precipitous decline in available land for new condos. Now residents of Dunbar on the west side are learning about the long-gone Salsbury Garden on the east side, where now two duplexes sit occupied by unaware newcomers.

Developers win again. It would have been too hard to figure all this out at the time it was being played. But the “I can’t tell you that” comment shot over the shoulder by The City’s lead lawyer to yours truly, when she hustled down the hall and away from my question about who dispatched her to court room three to apply for intervener status in the Salsbury Garden case, should have been some kind of tip off. The Planning Department! The place where they do nothing all day but hatch plans, of course!