Street scene

A group of people behind the old Victory Church shelter in March. The province has said the shelter’s value in protecting the marginalized population outweighs its impacts on neighbours.

Forcing provincial agencies like BC Housing to comply with municipal zoning bylaws would impair the senior government’s ability to deliver services, the Crown corporation claims in response to a lawsuit filed by the City of Penticton over the siting of the old Victory Church homeless shelter.

“In other words, although BC Housing attempts to comply with municipal requirements where possible, the execution of its mandate should not be subject to different bylaw requirements in different municipalities affecting its use or development of land,” states BC Housing’s response, which was filed Sept. 14 in B.C. Supreme Court.

“This is true whether the local bylaw requirements inadvertently or advertently (for example, driven by local politics) affect BC Housing.”

The city’s lawsuit, which was filed July 7, challenges the B.C. government’s invocation of paramountcy – a legal concept that allows the province to overrule municipalities on matters pertaining to its use or development of land – in order to keep the old Victory Church shelter running at 352 Winnipeg St. in contravention of the local zoning bylaw.

The shelter was originally granted a temporary use permit by the city to operate without the proper zoning for last winter only, after which BC Housing said it intended to shut the facility. But just weeks before the scheduled April 1 closing date, BC Housing asked for a fresh permit to keep the shelter open continuously for another year.

Based on concerns about the shelter’s impacts on its neighbours, council unanimously denied that request in March, prompting the B.C. government to claim paramountcy and continue running the 42-bed facility.

The city’s lawsuit argues BC Housing can’t now claim it’s immune from the same municipal zoning bylaw it once followed.

But in a separate response filed Sept. 10, the attorney general claims BC Housing only applied for the temporary use permit out of courtesy to the municipal government.

“As a general rule, this is good public policy. But voluntary compliance does not waive Crown immunity,” states the AG’s response.

“It would be perverse to say that when a provincial government agency co-operates with a local government and complies with its requirements, it permanently loses its immunity. The only possible effect of this would be to minimize co-operation.”

The city’s second main argument suggests the B.C. government isn’t actually using or occupying the land itself – rather, it contracted the Penticton and District Society for Community Living to run the shelter – so it can’t claim paramountcy.

In response, BC Housing notes the now-expired temporary use permit was issued to BC Housing, “demonstrating that the city considered BC Housing, and not PDSCL, to be the user of the property.”

Furthermore, BC Housing claims it’s the “driving force” behind the shelter and is simply using PDSCL as its agent.

With both sides entrenched, the case now appears headed to a courtroom.

“With this matter being before the court, the city is not providing further comment concerning the action it took July 7, 2021, when it filed a petition with the B.C. Supreme Court challenging the province’s decision to invoke ‘paramountcy’ over the city’s zoning bylaw in a unilateral move to operate an intended temporary winter shelter at 352 Winnipeg St. as a year-round facility,” said city spokesman Philip Cooper in a statement Thursday.

“I can however acknowledge that the city was informed last week that BC Housing has now filed a response to the city’s July 7 petition, which the city’s lawyers are now reviewing with the expectation of appearing in court in the new year.”