MOOSE JAW — City hall’s approval of a supportive housing project frustrated some residents, but a new report suggests changing the bylaw to address similar initiatives could violate the Charter and lead to legal issues.
The project angered some area residents, who felt that neither the city nor Ranch Ehrlo had consulted with them sufficiently. This prompted a crowd to fill council chambers on July 14 to hear resident Kirsten Downey discuss her opposition to the project.
Instead, administration provided a report during the Aug. 11 meeting that discussed what would happen if city hall changed the bylaw.
Council’s discussion about the issue will be featured in another article.
Administration noted that the report drew upon information from an internal working document entitled “Supportive Housing, Care Homes and Emergency Shelters in Zoning: Current and Future Challenges.”
Boyle’s proposed amendment would expand the use of council’s discretionary powers for such applications and would introduce extra administration processes like mandatory public notification and council review, the report said. This could cause delays for applicants seeking to establish supportive housing developments.
Legal issues and Charter risks
The internal working document outlined case law showing that municipal regulations cannot discriminate based on people’s characteristics such as mental health status, disability or socio-economic status, the council report said.
Furthermore, the Supreme Court of Canada has ruled in several cases that such distinctions are beyond the legal authority of municipalities, the document noted.
The definition of supportive housing in the zoning bylaw references personal characteristics such as mental illness and addiction, which section 15 of the Canadian Charter of Rights and Freedoms recognizes as protected grounds, the report continued.
“By requiring these uses to undergo additional scrutiny not applied to other residential uses, the city could face a legal challenge on the grounds of discrimination,” the document noted.
Land use regulations that distinguish uses based on occupants’ characteristics — instead of the physical form or function of the use — have faced legal scrutiny elsewhere, the report added.
Best practices
Provincial planning policy emphasizes that zoning decisions should focus on land use effects — such as traffic, building form, parking and safety — and not on the residents’ circumstances or characteristics, the council report said.
Furthermore, provincial policy requires municipalities to provide various housing options that promote independence and dignity for everyone, the document added. Restricting supportive housing “could be interpreted as being in conflict with this directive.”
Implications
If the city reclassified supportive housing as a discretionary use, that could result in mandatory public notifications, potential delays for applicants, increased administrative workload and the risk that public hearings could focus on the occupants rather than the land use itself, the report said.
Meanwhile, the city’s existing definitions for residential care homes, supportive housing and community service institutions overlap and are not mutually exclusive, the document continued. If council proceeded with the amendment, administration may have to conduct a review of the land use categories to ensure there is internal consistency and clarity in the bylaw.
Past precedent
A similar issue arose in Weyburn in 2019 after that council denied a care home application “based on misinformation and resident opposition,” the report said. The decision attracted national attention — and criticism — and “highlighted the risk of public sentiment overriding factual, policy-driven planning.”
Continuing, the document said this case was an example of discriminatory zoning practices, as certain comments from Weyburn’s council about property values and stigma drew criticism and prompted a formal public apology.
That council later reversed its decision and approved the group home in the upscale neighbourhood. The report noted that the reversal was due to political and public pressure rather than judicial intervention.
Related costs
If council proceeded with the proposed zoning amendment, city hall would have to mail out roughly 1,500 letters to affected property owners for roughly $2,000, which would come from the planning and development operating budget, the report said.
As of Aug. 1, the public notification category was $8,800 over budget because of previous council-directed mailouts related to the “four units as-of-right” situation, the document continued.
“In addition, the city may incur legal costs in the event of a Charter-based challenge, and staff time and resources required to process discretionary use applications would also increase,” the report added.
The next regular council meeting is Monday, Aug. 25.
