Fettered or bad faith?

In response to the previous “Bumps in the road” post, I received a two-segment follow-up question about the Garden City Lands:

1.      Hasn’t the City made an agreement to rezone half of the Lands?

2.      Won’t council be acting in bad faith if it decides not to rezone?

It’s an important question—so important that the Garden City Lands Coalition had already obtained a legal opinion about it. The short answer is No and No. The reason is that the City isn’t even allowed to make an agreement like that, which would “fetter its discretion.”

 

If you would like a longer version, here it is.

The City has not made an agreement to rezone anything and would not be legally allowed to do so. That is because, in the lawyer’s words, “a municipality cannot fetter its legislative discretion by committing to exercise (or not exercise) its legislative powers in a prescribed manner.” What the City actually agreed to do in the Garden City Lands purchase agreement was to employ its “commercially-reasonable efforts to expedite and complete the development approval processes,” which include the rezoning adoption process and the passing of certain bylaws. According to the lawyer, “the City is not promising with certainty that such bylaws will be passed.” And “the City is simply agreeing to use its ‘commercially-reasonable efforts’ to pursue a certain legislative course.”

To ensure that the purchase agreement cannot be interpreted to fetter the City’s legislative discretion, the purchase agreement includes a section that spells it out:

Nothing contained in this Agreement will fetter the discretion of Richmond City Council . . . to exercise any statutory or common law rights as to the exercise of discretion by Richmond City Council . . . whether or not to take any action or make any decision contemplated in this agreement. . . .” (Purchase Agreement Section 4.7, “No Fettering of Discretion”)

In performing its legislative duties without fettering of its discretion, council would be implementing the purchase agreement in good faith. Naturally, the assumption here is that council members would address the developmental approval processes without deciding in advance either to approve them or reject them.

If the Garden City Lands agreements ever reach the rezoning stage, what the council members should do is act in good faith by addressing the rezoning application with open minds, without letting themselves be fettered by false accusations of acting in bad faith.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s