The “No Development Covenant”

Update: This post was edited on June 14, 2009, and we know from a reliable source that the No Development Covenant* the post addresses was still in place at that time. We need Richmond council to ensure that it remains in place unless it is removed by agreement at the conclusion of satisfactory renegotiations of the conditions in the basic Garden City Lands agreement (the “MOU”) that cannot be met in their original form.

Overview

One means of keeping the Garden City Lands green is the City’s No Development Covenant.* It particularly ensures that no development can occur unless the City gets at least 50% of the Lands. Of course, the No Development Covenant* is only a valuable asset for protection and bargaining if the City uses it well. That is a concern because the City has frittered away its strong Garden City Lands positions in the past.

 

Details about the No Development Covenant

Under the Richmond-CLC/Musqueam Purchase Agreement, Canada Lands Company CLC was required to deliver the Covenant  to the City for registration by the City after the title to the Garden City Lands property was transferred from the federal government (Purchase Agreement, Section 3.3). The Covenant was in fact registered by the City and has not been discharged.

I have studied a legal opinion about the No Development Covenant that was prepared by a lawyer for the Garden City Lands Coalition Society. A key point is that the Covenant does not come to an end with the end of the Purchase Agreement. (The Purchase Agreement expired at the end of December 2008, but the No Development Covenant did not expire with it.) The Covenant remains registered on the land title, and the City does not have to remove it.

In that context, the legal opinion anticipates that the discharge of the covenant would be one of the terms that will be negotiated in the renegotiations that appear to be currently beginning under the basic Garden City Lands agreement that is known as “the MOU”. If the parties are unable to negotiate alternative terms to the City’s satisfaction, then there is no need for the City to discharge the covenant. Instead, in the words of the legal opinion, “the Covenant could conceivably still be registered against the title to the Lands, and CLC and the Musqueam would have to take that into account in any efforts to move forward with ownership of the Lands.”

Essentially the No Development Covenant prevents any development of the Garden City Lands unless the City is satisfactorily ensured “that the City will be entitled to become the owner of 50% of the total area of the Lands as ‘Public Lands’ to be used for the purposes of establishment of parks and other public amenities. . . .” CLC “acknowledges and confirms that it will not be unreasonable for the City to withhold its approval of any proposed rezoning, subdivision or other development approval unless, as a condition thereof, the City is entitled to become the owner of 50% of the total area of the Lands as Public Lands.”

*Notes:
The approved form of the “No Development Covenant” appears as Schedule D of the Purchase Agreement, and the covenant is stated on page 4 of Schedule D. Schedule D is pages 58-63 of the Purchase Agreement PDF

The Purchase Agreement, the second of the two Garden City Lands agreements, has now expired. In contrast, the “No Development Covenant” has no expiry date. The renegotiations that are apparently beginning are under the basic Garden City Lands agreement, known as “the MOU,” which also has no expiry date.

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