A 482-unit townhouse development project that the City of Surrey shut down in November 2022 has been brought back to life, at least for now, after the developer took the City to court and a judge ruled in their favour, according to a judgment from the Supreme Court of British Columbia last week.

The project at hand was being developed by Fergus Creek Homes Ltd. and was also named Fergus Creek Homes. Planned for a sprawling 25.7-acre site at 1083, 1109, and 1177 168 Street, 1068 No. 99 Highway, and 16620 12 Avenue in South Surrey, just south of the project's namesake Fergus Creek and adjacent to the Meridian Hills Golf & Wine Club, was 482 townhouse units, consisting of 12 two-bedroom townhouses and 470 three-bedroom townhouses, according to the rezoning application.

The developer first submitted their application around September 2020, with the project ultimately granted a first reading and second reading in July 2022. The proposal was then forwarded to a public hearing that was held in August and was subsequently granted a third reading in early October.

However, in mid-October, after the municipal election, a new mayor and five new councillors were elected and a motion was introduced by Mayor Brenda Locke to rescind the third reading of the bylaws related to the application, "and that the bylaws be filed and the application be closed." The motion was approved on November 28, 2022.

The subject site of the planned Fergus Creek Homes project.The subject site of the planned Fergus Creek Homes project.(Fergus Creek Homes)

Fergus Creek Homes Ltd. argues that the City of Surrey's decision to rescind the third reading was unreasonable and deprived them of procedural fairness, and thus asked the Supreme Court to quash the decision and motion. The City, however, argued that the decision was reasonable, was made in the public interest, and did not contravene any municipal legislation regarding procedures.

The judge ultimately sided with Fergus Creek Homes Ltd.

In adopting the motion to rescind the third reading and close the application, the judge found that "Council unreasonably decided to not follow a provision of the City’s procedure bylaw (s. 43(1)(a)) which would have informed Council of prior staff actions relating to the proposed development before making the rescission decision" and that this was not reasonable.

Signs of trouble were present at the November 28 public hearing, where, immediately upon the motion being put forth for consideration, Councillor Mandeep Nagra voiced his concerns, after saying he was in support of the development proposal when Council previously considered it because he believed townhouses to be a good use for the site.

"I'm failing to understand this," he said. "Why are we doing this? There was no presentation, there was no feedback. I mean, there's got to be something that I'm missing here that maybe the other councillors or the mayor knows that I don't. I don't know why we're doing this."

After Councillor Doug Elford also voiced his support for the development application, Mayor Locke pointed out that the application is contrary to the Official Community Plan, contrary to the local area plan, and also contrary to the employment lands strategy. She also pointed to potential infrastructure issues and concerns voiced by the public. Notably, the Surrey Board of Trade had released a statement voicing their opposition to the project.

"I think one of the most important things, though, is that it is industrial/employment land and we are in serious need, in Metro Vancouver, of employment lands, and so [replacing them] makes no sense to me," Locke said. "There's just no infrastructure in that area. I also want to just acknowledge that staff on the original application recommended against this. I think this was, unfortunately, a rushed application on August 8, which was a bit of a surprise meeting as it was. So, with that, I certainly won't be supporting it."

The site is currently vacant land, but was in part designated for business park use.

Councillor Mike Bose also echoed the comments made by Locke, who was chairing her second council meeting after being elected and was having difficulties with meeting procedures throughout the evening.

Councillor Nagra then responded saying that the application was supported by the previous Council when it was originally introduced in 2020 and that it's unfair to the developers to suddenly tell them to stop what they're doing. Nagra and Elford were the only two who opposed Locke's motion, which was then passed six to two, after Councillor Gordon Hepner recused himself.

In the judgment, Justice Stephens noted that the City had already issued to the developer both a Preliminary Layout Approval (PLA) that conditionally approved the proposed subdivision and a letter informing them that their application had been granted a third reading in October, both of which were not mentioned during the discussion about rescinding the third reading.

Fergus Creek Homes.Fergus Creek Homes.(Fergus Creek Homes)

Aside from finding that the City did not follow the aforementioned procedure bylaw, Justice Stephens also found that the rescission decision had a "significant" effect on the developer, who had taken numerous steps towards the project before it was killed by Council.

Fergus Creek Homes Ltd. asked the court to quash the rescission motion entirely, however, Justice Stephens instead decided that the motion to rescind third reading be remitted back to Council for reconsideration, as the lawsuit filed by the developer was focused on the motion resolution and there was no legal basis to quash it entirely.

It's unclear when Surrey City Council will reconsider the motion and application.

On February 14, former-Mayor Doug McCallum and his party Safe Surrey Coalition released a statement on the case asking Premier David Eby to prevent projects that have received approval from being walked back, while also targeting current-Mayor Brenda Locke for stalling the Fergus Creek Homes project, which was approved while he was in office.

"The Province recently passed Bill 44 to increase housing supply across the province, and here is a housing project that has all the zoning approvals in place, went through years of public consultations and can break ground tomorrow, but unfortunately is stuck in limbo just because Mayor Brenda Locke doesn't like the project," said McCallum. "Premier Eby and Minister Kahlon should step in and take action on this to deliver missing middle housing."

Editor's Note: This article was updated on February 14 with a statement from former-Mayor Doug McCallum.

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