Pubdate: Wed, 11 May 2016
Source: Vancouver Sun (CN BC)
Copyright: 2016 Postmedia Network Inc.
Contact:  http://www.canada.com/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Matt Robinson
Page: A1

POT SHOP APPEALS A MIXED BAG

Similar pleas for marijuana business licences can shake out
differently

Vancouver pot shops have won seven of 10 at the city's board of
variance since March, having brought forward successful arguments for
second cracks at marijuana business licences.

While it's a tidal shift from the first two months of hearings when
every decision went against shopkeepers, even the most keen observers,
appellants and their lawyers would have a difficult time divining the
precise ingredients that make for a successful pot shop appeal. In
some cases, shops with nearly identical characteristics have received
opposite decisions at the board.

The most striking example came last week when Kirk Tousaw, a lawyer
fresh from a successful challenge of the 2013 Harper government's
medical marijuana scheme, successfully argued for Sunrise Wellness
Kingsway.

It was a coup for the shop, given that an earlier appeal by its next
door neighbour Cannpassion was disallowed by board members. When asked
what makes for a successful appeal, Tousaw - who went two-for-three in
arguments at the board last week - chuckled, then explained what he's
seen work and what he's seen fail.

"Things like talking about how your membership benefits and how
valuable a service a dispensary is generally does not appear to be
very successful," he said.

"You can have the most compelling fact pattern in the world, but
unless you can find some hardship related to the site you're in - the
property itself, for which the variance is sought - it only gets you
so far."

Board members apply a relatively narrow lens to pot shop appeals. To
grant a variance, board members look at undue hardship related to the
property and whether the bylaw, strictly interpreted, is an
unreasonable restraint on the use of the property. They then determine
whether a variance would be consistent with the city's overall
development plan, Tousaw explained.

Sunrise and Cannpassion's applications for business licences were both
rejected by the city last year because the shops were deemed too close
to a nearby school. Both were about 290 metres from Vancouver Formosa
Academy - 10 metres too close under the city's new regulatory scheme.

The two shops are in the same building and their entrances less than a
metre apart. They share the same street number - 2943 Kingsway - and
both front onto the busy road. Cannpassion, in Unit B, had been in
business for nearly five years before its trio of owners shut the
doors on the 550-square-foot space last month. The board of directors
of Sunrise, in Unit A, opened their 1,200-square-foot shop in 2015.

When Cannpassion appealed to the board in February, it provided an
independent legal survey that showed it was in fact just 6.72 metres
too close to the school and argued the city's exacting assessment
caused them hardship. The city said staff measure from property line
to property line and noted if they relaxed their regulations, the
public might lose faith in city bylaws. Cannpassion's appeal was disallowed.

Tousaw said last week he successfully demonstrated there were
different ways of measuring the distance between his client's shop and
the school. Not only was the distance from door-to-door more than 300
metres, he argued, but the pot shop was also located across a busy
street, far from a crosswalk, and much farther away from the school
when calculated by walking distance.

Tousaw said city staff considered the layout of streets and the route
a person would walk, something he saw as being fair in this case. As
he put it, "school kids aren't leaping over skyscrapers to get to your
dispensary."

Louis Ng has worked at the board of variance for about two decades and
has a good grasp on the way its members make decisions. Each case is
based on its own merit, and unlike court rulings, board decisions do
not set precedent, Ng explained. Before individual members lodge their
decisions, board members have an open discussion, and they don't
always agree with one another.

If asked by an appellant what their chances are, Ng will tell them
it's 50/50. "I don't know which way it's going to go."

Having observed the pot shop hearings these past few months, Ng has a
sense of which arguments have worked. Certified surveys have helped,
he noted.

At least one appellant - Hilary Black, founder of the B.C. Compassion
Club Society - succeeded by appealing to the board on softer grounds.
The society is nearly two decades old and located just 33 metres from
Stratford Hall school and 185 metres from St. Joseph's school. Before
members allowed Black's appeal, Ng recalled members having heard from
a long line of supportive speakers and offered up a favourable letter
from one of the schools.

Ng said he believed that while the process of the board has remained
the same during the course of the hearings, "appellants who were
sitting and watching at every single meeting are now adjusting their
own presentations."

Chuck Varabioff, owner of B.C. Pain Society on Commercial Drive, filed
for a B.C. Supreme Court review after his shop was turned down by the
board of variance in February. Varabioff's shop is located across the
street from the Compassion Club. If his court review is successful,
the case would return to the board for another look, Ng said.

Board members don't speak to media about their decisions, Ng told The
Sun.
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MAP posted-by: Matt