School Lands Memo -- Final, January 20, 2009

7/30/2019 School Lands Memo -- Final, January 20, 2009

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educational resource. We attempt to ensure the accuracy of the

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complete or up to date. The Environmental Law Centre does not

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The information provided in this document is not intended to be

legal advice. Many factors unknown to us may affect the

applicability of any statement or comment that we make in this

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Please seek the advice of a competent lawyer in your province,

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Loss of Scho ol Lan ds: an Enviro nm en ta l Concern

Neighbourh ood pu bl ic schools are mo re th an just a faci l i ty; the school lands provide comm unit ies w i th essentia l

publ ic green space. Al th ough school yards are typical ly w ide swaths of t r im m ed grass that bear l i t t le ecological

value, the open grass provid es cr i t ica l publ ic green space for recreation and com m unit y act iv i t ies. To th e

neighbour hood , school lands are valued in m uch th e sam e w ay as parks are valued; for un structured physicalact iv i ty, sport s pract ice, scenic value, and ou tdo or com m unit y events. In urban centres, school lands often

functio n as cr i t ica l l inks in regional greenways systems. Furt herm ore, i t is no accident t hat h istor ic school si tes

once donated to a school d istr ict are si tuated on pr im e pieces of pr opert y, ref lect ing the societa l value placed

on q ual i ty pu bl ic space.

But w i th d ecl in ing enrolm ent in BC, com m unit ies across the pro vince are seeing their schools closed and l isted

for sale. This has a destabi l izing effect on com m unit ies that re ly on schools and school lands as th eir m ain

publ ic gather ing place. Al thou gh publ ic school en rolm ent in Br i t ish Colum bia has decl ined less than 6% since

2001 ( just 18 few er student s in a school of 300 1) , over 170 schools have been closed since 2001, wi t h several

m ore th rea tened wi t h c losure th is year .2

The issue of school closure is com poun ded b y provin cial pol icy thatencourages school bo ards to close and sel l surplus school propert ies to qu al i fy for capi ta l funding. And unt i l

recently, school boards w ere required to sel l closed-school prop ert ies at fa i r m arket value, render ing the

proper t ies too expensive fo r loca l governm ents and comm uni ty o r gan iza t ions to purchase in o rder t o re ta in th e

schools and lands for publ ic use. The unfort unate resul t is that num erous school prop ert ies have been sold t o

pr ivate pu rchasers for developm ent since the f i rst w ave of closures in 2001.

This repor t draw s att ent io n to t he fact th at school lands are accorded inadequate pr otect ion as publ ic green

space. This is largely because pro vincial law and po l icy governing the disposi t ion of school lands fa i ls to

recognise th e value of school land in t h is regard. This can be expla ined, in part, b ecause the green space

created by school yards is incidental to th e provision of publ ic education . Therefore, the adm inistrat ion ofschool lands rests wi t h th e M inistry of Education and School Distr icts governing bodies that have pub l ic

education, not t he preservation of comm unit y green space, as their pr im ary object ive.

The resul t is a gap in law and pol icy: the f utu re of t he green space that schools provide is t ied to t he budget ary

needs of the publ ic education system. These needs f luctuat e over t im e, dependin g on stud ent enrolm ent levels

and th e f iscal approach of t he governing part y, leaving school green spaces hanging in th e balance. Thus, the

preservation of school lands as publ ic green space is largely cont ingent u pon publ ic education planning, instead

of preserved as a publ ic asset in its own r ight . Furt herm ore, any effor ts by the m inistry to reta in schools for

al ternative com m unit y uses are geared tow ards faci li ty use, w i th no f orm al att ent ion p aid to schoo l land use.

Not only has th is pol icy gap resul ted in the loss of p ubl ic green space, but com m unit y confidence in schoo lboards has been w eakened. In m any cases, schoo l d istr icts, faced w ith the p ressure t o consol idate and sel l off

surplus assets, have condu cted inadequat e publ ic consul tat io n w ith r egard to school closure and sale. Instead

of draw ing com m unit ies toget her to p lan for ret a in ing underut i l ized school space, the p rovincia l pol icy

fram ew ork m akes sale for developm ent t he m ost l ike ly out com e of school closures, wh ich are r is ing as

enro lment s cont inue to dec l ine . 3


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(3 ) Sub ject to the orders o f t he m in iste r , the board m ay d ispose o f land or impro vements, o r bo th . 4

Consistent ly since 2001, the M inistrys capi ta l p lan instr uct ions require school d istr icts to p rovide suppor t fo r

capi ta l projects by sel l ing surplus assets. Essentia l ly, i f a school d istr ict can br ing m oney t o t he t able , t hey

m ove up the pr io r i ty l ist for capi ta l upgrades.5

Current ly, the 2008/ 09 Capita l Plan Instru ct ions state schoo ldistr icts w i l l be required to dem onstrate pot entia l savings in operat ing costs and pr ovide suppo rt fo r th e

requested capi ta l project thr ough t he sale of surplus assets. 6

In January, 2003, r igh t a round t he t im e w hen the enro lm ent dec l ine became not iceab le , the M in ist ry o f

Educat ion in t roduced M in iste r ia l Order 16 /03 (M 16/03) , D isposal o f Land or Im provement s Order , p rov id ing

school pr opert y d isposal instruct ions for school bo ards.7 (Note, th is order as i t f i rst existed and current ly exists

does not apply t o grants of Crow n land descr ibed in sect ion 99 of th e Schoo l Act; see Appen dix B.) The policies

and procedures ou t l ined in M 16/03 are as fo l low s:

Policies and Procedures

3 . Boards m ust develop and implem ent pol ic ies and procedures wit h respect t o th e disposal of land or

imp rovements under sect ion 96(3) o f t he Schoo l Actand m ake these pol ic ies and pro cedures publ ic ly

available.

4 . The pol ic ies and procedures referred t o in sect ion (3) must pr ovide for :

(a) considerat ion o f the f utu re educational needs of the school d istr ict

(b) d isposi t ion of land or im provem ents thro ugh a publ ic process, and

(c) d ispos it ion o f land or impro vement s at fa i r m arke t va lue.

The requ i rement tha t schoo l lands be so ld a t fa i r marke t va lue ( i .e . w hat the land w ou ld be w or th as a condodevelopm ent) has m eant that cash-strapp ed m unicipal it ies and com m unit y group s cannot aff ord t o purchase

the land t o ret a in i t for pu bl ic use. David Cubber ley, M LA for Saanich Sout h and Opposi t ion Cr i t ic for Education,

argues that school lands are a lready ow ned by t he pub l ic, ther efore i t is a cost ly shel l game to req uire

m unicipal i t ies to re-purchase the lands at inf lated values.8 Fur ther , M 16/03 m ade no m ent ion o f repurpos ing

closed-school property for a l ternative comm unit y uses. The com bination of :

The Capita l Plan requ irem ents th at d istr icts seeking capi ta l fu nding pro vide support by sel l ing surpluslands, and

The M in iste r ia l o rder (M 16/03) requ i rement tha t land be so ld a t fa i r marke t va lue ,has created an incentive for school d istr icts to sel l school lands, w i th t he l ikely resul t that w hen pur chased fo rm arket value, the lands w i l l be developed and lo st as pub l ic green spaces. These m easures have fa i led to

acknowledge t he high socia l value of school lands as pub l ic green space and to pro tect i t accordingly.

In add i t ion to the f a i r marke t va lue requ i rement , M 16/ 03 prov ided l it t le ins t ruct ion as to the leve l o f pub l ic

consul tat ion requ ired, stat ing only that pol ic ies and pro cedures be publ ic ly avai lable and that t he closure and

sale of schools m ust be a pub lic process. In th e years since, num ero us school sites across BC have been sold t o

pr ivate pu rchasers after inadequate pu bl ic consul tat io ns.


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School closures and sales have pi t t ed com m unit ies against school b oards, who have been un der p ressure by t he

Capita l Plan Instru ct ions to consol idate surplu s assets in order t o m ove up t he pr io r i ty l ist for capi ta l pro jects.

The closure an d sale of Fairbu rn Schoo l in Schoo l Distr ict 61 (Vict oria) is a good e xam ple, described b y Lind a

Travers o f Fr iends o f Fai rburn as bo t ched f rom the beg inn ing the pub l ic were shut ou t o f the dec ision-

m aking process and School Distr ict 6 1 did no t even have t he courage to respect dem ocrat ic process and vo te o n

l ist ing the school for sale at an op en Board m eeting. 9 The Distr ict sold Fairburn School t o a d eveloper in

January 2007 after a publ ic prom ise not to sell . Now , 18 houses wi l l be bui l t on t he schoo l f ie ld and only 30

percent of the f ie ld w i l l remain as publ ic access. Furt herm ore, of t he or ig inal school land, less than 1 0 percent

w i l l rem ain as recreation space.

In Septem ber 2007, M16/ 03 w as repealed and rep laced w i th M in iste r ia l Order 233/ 07 (M 233/07) .10 M 2 3 3 / 0 7

expanded on M 16/ 03 content by adding several signi f icant provisions, including the use of t he term surplus

prop erty to d escr ibe real prop erty not required by a board for edu cational purposes. This language is

prob lem atic because i t def ines surplus school proper t ies as surplus in re lat ion t o educational pur poses only.

I t fa i ls to recognize the ot her p ubl ic purpo ses (i .e. green space) that school lands m ay legi t imat ely serve.

M 233/07 a lso brought in an oppor tu n i ty m atch ing scheme, whereby schoo l boards w ere requ i red to p rov ide

an inventory o f surp lus proper ty t o bo t h th e M in ist ry o f Educat ion and the M in ist ry o f Labour and Ci t izen s

Services. The M inistry of Labour and Cit izens Services w as brou ght on b oard t o m atch surplu s prop erty w i th

a l te rnat ive governm ent use , de f ined as a use de term ined to m eet the requ i rem ents o f the Prov incia l

governm ent or of a Crow n agency. The M inistry of Education had a database of surplus schools undergoin g

oppo rtu ni ty m atching on their w ebsi te, but a password w as required t o access the database. In effect, by

shuff l ing the proper t ies back and for th in th is way, the publ ic was com pletely shut out of the pro cess. Even now

it is unclear just how m any schools have been sold fo r pr ivat e developm ent since 2002.

Policy shift

In Septem ber 2008, th e M inistry of Education intro duced t he School Bui ld ing Closure and Disposal Pol icy ( the

pol icy) t o del iver i ts 2007 Throne Speech prom ise to use underut i l ized school spaces as publ ic spaces to

del iver on publ ic pr ior i t ies ; to w ork w i th board s to b ett er m anage capi ta l p lanning across al l school d istr icts ;

and to ensure schools or school lands are used for t heir h ighest and best use for m aximum publ ic benefi t .11

The pol icy m akes i t m ore di f f icu l t for school lands to be sold by stat ing that only in exceptional cases should a

board consider perm anently d isposing of school propert y .12 To supp ort t h is, the po l icy requires that a l l future

sales of school land to f i rst be approved by t he M inister of Education. There is one exceptio n: the M inister s

approval is not req uired i f a school board sel ls or leases the land or b ui ld ings to anot her school board, including

francophon e or independ ent school bo ards, for edu cational purposes.

The rat ion ale for reta in ing underu t i l ized schools instead of sel l ing them is to m eet th e m inistrys expanded

m andate fo r comm uni ty serv ice de livery and ear ly learn ing . Wi t h regard to the f o rm er , the new po l icy was

intr oduced to suppor t t he m inistrys Neighbour hood s of Learning pi lot project, launched in Septem ber 2008.

The pro ject a im s to b r ing educat ion and comm uni ty serv ices together in a s ingle ne ighbourhood hub .13 The

idea is to use extra schoo l space for del iver ing com m unity services, such as chi ld-care pro grams, fam i ly resource

or seniors centres, industry tr a in ing, or branch l ibrar ies. W ith regard to t he latt er (ear ly learning), the m inistry


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is currently m oving tow ards the im plem entat ion of a l l -day kindergarten for f ive year o lds and optio nal a ll -day

program s for t hree and fo ur year o lds, as intr odu ced in the 2008 Throne Speech.

To meet t h is expanded m andate, the m inistry w i l l require a l l the addi t ional faci l i ty space i t can f ind. Therefor e,

th e School Build ing Closure and Disposal Policy recognises th at School b uild ings and pr ope rt y is a valuable

publ ic asset that can become centres for del iver ing education and com m unity services that m eet the vi t a l needs

of the com m unit y. Avai lable school space should be considered for a l ternative comm unit y use... 14

Al te rna t ive Comm uni ty Use is de f ined as a use by a com m uni ty agency or o rgan iza t ion fo r land or

impr ovements, ow ned by a board , o ther than fo r the educat iona l purposes o f t he board . Th is phrase is

no tab ly d i f fe ren t than a l te rna t ive government use , as in t roduced in M 233/07.

Signi f icantly, th e pol icy perm its school prop erty t o be sold to o ther school board s, local governm ents or

com m unit y organizat ions for a l ternative comm unit y uses at less than fa ir m arket value, a marked depart ure

f rom ear lie r po l icy . The po l icy goes on to ou t l ine the consu l ta t ion requ i rement fo r schoo l boards, w ho m ust

consu l t w i th loca l governm ent , comm uni ty o rgan iza t ions and t he pub l ic on a l te rna t ive com m uni ty uses. Th is

consul tat ion pro cess must include:

Considerat ion of fut ure enrolm ent grow th in th e distr ict , including Kindergarten to Grade 12, adul tprogram s, and ear ly learning;

Considerat ion of a l ternative com m unit y use of surplus space in school bui ld ings and oth er faci l i t ies; and A fa i r considera t ion o f the comm uni ty s input and adequate oppor tun i ty fo r t he comm uni ty to respond

to t he boards p lans for t he school .

Concurrent w i th t he intr odu ction of the School Bui ld ing Closure and Disposal Pol icy, a new version of th e

Disposal of Land or Imp rovem ents Order (M 193/ 08) cam e into effect on Septem ber 3, 2008.15 M 1 9 3 / 0 8

reinfor ces the pol icy object ives descr ibed above, remo ving the f a i r market value requirem ent th at existed in

previous versions of t he Order.

In sum , the new pol icy shi f t d oes several impo rtant th i ngs w ith regard to p revent ing sale of school lands for

pr iva te deve lopm ent :

the po l icy uses the w ord underu t i l i zed jo in t ly o r ins tead o f t he w ord surp lus to descr ibe cur ren t lyunneeded school space - a posi t ive r echaracter izat ion ;

i t restr icts a school board s abi l i ty t o sel l land by f i rst requ ir ing the M inister s approval ; i t uses the phrase a l te rna t ive com m uni ty use in p lace o f a l te rnat ive government use , w h ich

prov ides fo r uses m ore in - l ine wi t h comm uni ty deve lopment ; and,

i t m akes a com m itm ent t o repurp ose underu t i l ized schools instead of sel l ing them. This is support ed byrem oving the fa ir market value requir emen t, render ing closed-school land mor e affordable for local

governm ents and comm unit y agencies.

Because the School Bui ld ing Closure and Disposal Policy has only been in effect for thr ee m ont hs, we h ave yet

to see how ef fect ive i t w i l l be in reta in ing school lands for fu tur e school and green space purp oses. Al th ough i t

represents a posit ive shi f t in provincia l pol icy, i t do es not go f ar enough t o ensure t hat closed-school lands wi l l

rem ain publ ic ly accessib le and undeveloped the cornerston es of publ ic green space. W ith regard to pu bl ic


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access, the pol icy m akes i t easy for independ ent ( i .e. pr ivate) schools to pur chase school lands wit h no

guarantee the lands wi l l rem ain publ ic ly accessib le. Furt herm ore, by repurpo sing land for a l ternative

com m unit y uses w itho ut any w ord on h ow the land i tsel f wi l l be preserved as green space, the po l icy fa i ls to

foreclose the possib i l i ty that t he school yards could become covered w ith bui ld ings. And al though th e

accom panying Neighbourh oods of Learning pi lot project is a posi t ive step, i t too is focused on faci l ity u se, not

land use, and does not invi t e local governm ents to part ner in school p lanning.

Legislative an d Policy Reform

W ithou t provincia l leadership through law and pol icy reform , oth er prot ect ive measures to preserve closed-

school lands, such as local governm ent ef for t s (d iscussed fur t her in t he repor t) , wi l l m erely be a stop gap.

Therefore, i t is im port ant t o consider how provincia l law and pol icy can be amended t o recognize the value of

school lands as publ ic green space to prot ect i t fo r the f utu re.

There is a close l ink bet w een pub l ic land set aside for schools and publ ic land set aside for parks and green

space. The link is bot h real and legal . In real i ty, school yards perfor m an imp ort ant pub l ic green space funct ionfor t he com m uni ty and are t yp ica l ly a cr i t i ca l par t o f a comm uni ty s greenways system .16 Legally, provin cial law s

that im pose a charge or reserve land for acquir ing publ ic schools and publ ic parks wh en land is developed are

closely re lated.

For examp le, development charges for ded icat ion o f bo th park and school lands are treated sim i lar ly under the

Local Governmen t Act(LGA).17 This is indicat ive of their com m on value as publ ic assets and p rovides a basis for

simi la r m anagem ent under the Act . Sect ion 933 o f t he Act perm i ts a loca l governm ent t o im pose developm ent

cost charges by bylaw o n subdivision approvals and bui ld ing perm its. A developm ent cost charge is an amou nt

pa id by a deve loper to a loca l governm ent t o he lp o f fse t the cap i ta l costs imposed by th e new deve lopment (s.

933(2), LGA). These costs include pr ovid ing or upgrading sewage, water , drainage and h ighw ay facil i t ies andprovid in g and im proving park land (s. 933(2)(a)(b)) . To deter m ine the amou nt of a developm ent charge, a local

governm ent m ust take into considerat ion t he fo l low ing, as per sect ion 934(4):

(a ) fu tu re land use pa t te rns and deve lopment ;(b ) the phasing of w orks and services;(c) the pro vision of park land descr ibed in an off ic ia l com m unit y p lan;(d ) how deve lopment designed to resu l t in a low env i ronment a l impact m ay a f fect the cap i ta l costs o f

infrastructur e referred t o in sect ion 933(2) and (2.1) ...

Developm ent charges are a creative way for local governm ents to acquire and develop park land in conjunction

w ith developm ent. The charge can also be paid w i th t he provision of land in l ieu of cash. W ith regard to parkland specifically, sectio n 936 pro vides as fol l ow s:

9 3 6 (1) I f a developm ent cost charge bylaw pro vides for a charge to acquire or recla im p ark land, al l

or part of t he charge may be paid by p rovid ing land in accordance w ith subsection (2) .

(2) Land t o be pro vided for the pu rposes of subsection (1) m ust

(a) have a location and character acceptable t o th e local governm ent, and


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(b) on the day the charge is payable, have a m arket value that is at least equal to th e

amount o f th e charge.

Just l ike parks, charges are im posed on n ew developm ents to acquire and develop school land , as per s. 937.3 of

t he Act. This charge is called a Schoo l Site A cquisitio n Charge, and i s paid by a de velop er t o a local

government to ensure adequate schoo l s i tes w i l l be prov ided to m eet the pop u la t ion growt h crea ted by the

deve lopment . Upon paym ent t o the loca l government , the charge is t ransfer red to the schoo l d is t r ict .

As per s. 937.4 of the Act, befo re subm itt ing a capi ta l p lan for app roval under s. 142 of th e Schoo l Act, a schoo l

board m ust consul t w i th each local governm ent in th e school d istr ict t o m ake al l reasonable effor t s to p lan for

the s ize and locat ion o f schoo ls by agreeing on the pro jected num ber o f deve lopment un i ts to be bu i l t in the

d ist r ic t and the p ro jected n um ber o f ch i ld ren o f schoo l age tha t w i l l be added to the d is t r ict as a resu l t o f the

developm ent. The amo unt of t he school si te acquisi t ion charge is based on a form ula set out in s. 937.5 of the

Act . As wi th park land,a deve loper m ay prov ide land to t he local government o r t he schoo l board f o r schoo l

sites in l ieu of the charge (s. 937.6). How ever, the local governm ent, the school board, and the person requir ed

to pay the charge must a l l agree to the pro vision of th at land (s. 937.6).

This l ink betw een park and school lands dedicat ion/ developm ent charge requirem ents has been ref lected in

provincia l legislat ion across Canada, to varying d egrees. Al th ough p ubl ished in 1996, t he research paper Green

Space and Grow th : Conserving Natural Areas in BC Com m unit ies by Calvin Sandborn indicates that at that t im e

m ost Canadian provinces autho r ized local governm ents to require a 10 percent d edicat ion of park and/ or schoo l

lands.18 At tha t t ime, the BC M unic ipal Act ( now t he Local Governmen t Act) , permi t t ed local governments to

require a dedicat ion of 5% for school si te purp oses w hen land is subdivided , in addi t ion t o a 5% dedicat ion f or

parkland. Verm ont law simi lar ly l inked school and park dedicat ions, auth or iz ing mun icipal i t ies to require a parks

and school dedicat ion of u p to 1 5%.19 Note t ha t s . 937.3 o f the cur ren t Local Governm ent Actreplaces the old

system w ith t he School Si te Acquisi t ion Charge scheme descr ibed above -- how ever i t should be n ot ed th at parkand school lands continue t o be ded icated and reserved sim i lar ly.

These legislat ive schemes dem onstrate analogous treatm ent f or acquir ing and m ainta in ing park land and school

land. These law s recognize that school land and park land are simi lar pub l ic assets that serve sim i lar publ ic

interests ( i .e. pub l ic space). The examples above suggest that the law governing disposalof school land should

sim i lar ly recognize th e l ink bet w een pub l ic schools and publ ic parks. Indeed, som e jur isdict ions l ike Cal i forn ia

expl ic it ly recognize t h is l ink.

Section 17459 of Cal i forn ia s Educat ion Code imp oses restr ict ions on the m anner in w hich surplus school

prop erty can be sold, requir ing the land f i rst be m ade available for low - income hou sing and for park and

recreation pu rposes.20 This restr ict ion is enacted by Art ic le 8 of t he Cal i forn ia Government Code, w h ich requ i resthat a l l surplu s land, def ined as land ow ned by any govern m ent o r local agency that is no longer necessary for

the agencys use, be f i rst of fered f or low - income ho using and fo r parks and r ecreation purp oses.21 As per parks

and recreation, sect ion 54220(b) pro vides:

The Legislature reaff i rm s its bel ief that t here is an ident i f iable defic iency in the am ount of land avai lable

for r ecreational purposes and t hat surplus land, pr ior to d isposi t ion, should be m ade available for park

and recreation p urpo ses or for open-space purposes


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The advantage of t h is legislat ive scheme is that surplus land is t ied t o a bro ader legislat ive purpo se. In th is w ay,

w hen school lands becom e surplus they are a l located fo r purp oses set ou t by t he Government Code, instead of

sole ly for State Board of Education purpo ses. Furt herm ore, the Cal i forn ia Legislature a lso states i ts concern

regarding the loss of open-space upon the sale of schoo l lands in the Educat ion Code(sections 17485-17500).

Section 17485 pr ovides:

The Legislature is concerned t hat school p layground s, p laying f ie lds, and recreational real p ropert y w i l l

be lost fo r t hose uses by the sur round ing com m uni t ies even i f those comm uni t ies in t he i r p lann ing

process have assumed t hat t he propert ies w ould be perm anently avai lable for recreational purp oses. I t

is the int ent o f t he Legislature in enacting th is ar t ic le to a l low school d istr icts to r ecover their

investm ent in surp lus proper ty w h i le m aking i t possib le fo r o t her agencies o f government to acqu i re t he

prop erty and keep i t avai lable for p layground, p laying f ie ld or oth er outd oor recreation al and open-

space purpo ses.

This legislated concern supports th e argumen t t hat school lands should b e recognized in law for t heirenvironm ental value and preserved accordingly. Section 17230 of the Educat ion Code17230 states that in

addi t ion t o the req uirem ents p laced upon schoo l d istr icts pursuant to Section 5422 2 of the Government Code, a

school bo ard m ay sel l surplus school si tes to any park d istr ict , c i ty or coun ty in w hich the school d istr ict is

situat ed for less than fa ir m arket value. This is in l ine wit h the new M inister ia l Order and Pol icy of BCs M inistry

of Education . How ever, in the sect ion s proceeding sect ion 17485 (above), the Cal i forn ia Educatio n Codegoes

fur ther . In sect ion 17494 the Codestates:

Any land pur chased or leased by a publ ic agency pursuant to th is ar t ic le shal l thereaft er be m ainta ined

by such agency for p laygroun d, p laying f ie ld, or oth er ou tdo or recreatio nal and open-space uses...unless

the govern ing body o f tha t agency, by a tw o- th i rds vo te a t a pub l ic hear ing , de termines tha t t here is nolonger a signi f icant need for the land t o be used, in w hich case the land m ay thereafter b e used for

oth er outd oor recreational or open -space purp oses.

The provisions of the Cal i forn ia Educat ion Codeci ted here provide a legal m odel f or p reserving school land s as

green spaces by connecting the lands wit h a broader com m unit y need for green space. W hen schools are listed

as surplus and slated fo r sale, a pro vision o f t he Local Governm ent Actcou ld requ i re the land f i rst be o f fe red to

the local governm ent f or park and recreation purp oses at less than m arket value, mu ch l ike Cal i forn ia s

Educat ion Code.

In p lanning for law refor m , i t is im port ant to consider solut ions in the al ternat ive. In exception al cases,

preserving closed-school lands as publ ic green space may not achieve m aximum publ ic benefi t . For examp le,

low - income ho using m ay be a pressing need in a comm unit y that a lready has considerable green space, w hich is

w hy t he Cal i forn ia legislat ion iden ti f ies such housing as an al ternative p ubl ic purpo se. In th is case, i t m ay be

im port ant fo r schoo l d istr icts and local governm ents in exceptio nal circum stances to develop closed-school

lands to m aximize other publ ic benefi ts. In any discussion of th is sort, i t is im perat ive th at the com m unit y

affected be adequately consul ted.


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Al though the cur ren t M in iste r ia l Orders o f t he M in ist ry o f Educat ion requ i re pub l ic consu lta t ion be fore the

disposal of school lands, th is has proven t o be w oeful ly inadequate. I f school lands m ust be sold t o m aximize

the i r pub l ic benef i t , the cur ren t m in imum pub l ic consu lta t ion requ i rem ents must be improved t o m anage

school land as an essentia l pu bl ic asset, no t just a school faci l ity. In th is w ay, the f ate of closed-school lands as

green spaces w ould be unt angled from the M inistrys budgetary needs and given due process.

Looking t o fo rest p lanning in BC, the Forest a nd Rang e Pract ices Actenacts m in imum process requ i rements fo r

pub l ic consu lta t ion , som ewhat simi la r t o t ha t imposed on schoo l boards by M in iste r ia l Order 193/08 . 22 The

Forest Pract ices Board has out l ined pr incip les of effect ive pub l ic consul tat ion from i ts previous wo rk and in

l i teratu re. The fo l low ing pr incip les are w ort h including here as a basis for im proved p ubl ic consul tat ion pol icy

w ith regard to school closures and sale.

EARLY AND M EANINGFUL The opp ort uni t y for involvem ent o ccurs w hi le p lans are in fo rm ation andcan st i l l be changed, rather than af ter a for est comp any has already m ade signi f icant investm ent and

com mi t t ed to a p lan.

SUFFICIENT TIM E Suff ic ient t im e is al located for p ubl ic involvem ent, pro port ional to t he com plexi tyand scope of the p lanned for est act iv i t ies.

ADEQUATELY RESOURCED Adeq uat e resour ces are m ade available so th at m em bers of t he pu blic canpart ic ipate effect ively a longside the prof essionals representin g forest comp anies and governm ent

agencies.

INCLUSIVE Al l in terested part ies are provided op port uni t y to com m ent, part icular ly tho se w hoseinter ests are d irect ly affected by planned fo rest act iv i t ies.

INFORM ATIVE AND ACCESSIBLE Suf ficient and un derstan dable inf orm atio n is pro vided t o enable t hepub l ic to m ake i n fo rmed comm en t .

RESPONSIVE AND GENU INE The fo rest com pany do cum ent s its response to p ub lic input ,dem onstrat ing t hat i t understand s the issues ra ised and has taken th ose issues ser iously.

VERIFIABLE The forest com pany is able to dem onstrat e that the com m itm ents m ade have beende l ivered on t he ground.

CONTINUOUS Trust establ ished is m ainta ined by com m unicating and engaging wit h t he pub l icth roughout the l i fe t im e o f th e fo rest act iv i t ies in quest ion .23

Legislat ion and pol icy based up on such general pub l ic consul tat ion pr incip les should be considered t o govern

disposi t ion and use of school lands.

Partn erships for Scho ols as Green Space

Leg isla t ive and po l icy re fo rm takes t im e to com e in to e f f ect . In the in te r im i t i s impera t ive tha t a par tnersh ip

betw een school d istr icts, m unicipal i t ies and the pro vincial governmen t be form ed to p lan for closed-school

l ands, not just school faci l i t ies. The infrastructur e for such a com m unit y partner ship already exists. The School

Com m unity Connections Program (SCC) provides a mod el for a col laborat ive part nership betw een school

d ist r ic ts and m un ic ipa l it ies wi th t he suppor t o f the M in ist ry o f Educat ion .


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In 2005, the M inistry of Education launched the School Comm unit y Connection s Program (SCC) to suppor t

school d istr icts and m unicipal i t ies as partners in p lanning for school faci l i ty use.24 The pur pose o f SCC is to

create opport uni t ies for schools to bet ter serve the needs of changing com m unit ies. By br inging m unicipal i t ies

and school d istr icts together, the need s of edu cation and the broader comm uni ty a re represented in the

planning pro cess. Through SCC, the M inistry of Education pr ovides grants to assist in tr ansform ing school

faci l i t ies in to someth ing ak in to comm uni ty centres. The pro gram and gran ts are adm in iste red on beha l f o f t he

m inistry thro ugh a partn ership betw een the Union of Br i t ish Colum bia M unicipal i t ies (UBCM ) and th e Br i t ish

Colu m bia Trust ees Association (BCSTA).25

A l though the pro gram w as launched in 2005, by the summ er o f 2008, the m ajor ity o f par t ic ipa t ing schoo l

d ist r ic ts were just near ing comple t ion or en ter ing the comple t ion phase.26 As such, t he success of t he pr ogram

rem ains to b e seen. How ever, in M ay 2008, the M inistry of Education and part ners UBCM and BCSTA launched a

new School Com m unit y Connection s Grant: Stren gth ening the Connection 2008, to fund smal ler-scale local

projects, suggesting sustained int erest in t he p rogram . As of t he 2008/ 09 school year, SCC funding is avai lable to

all BCs boar ds of educat ion. 27

As an examp le of w hat SCC look s like on t he gro und , in School Distr ict #5 (Sou th east Koot enay) a SCC grant is

being used to create a new al l -ages act iv i ty space that w i l l serve the en ti re com m unit y and be inclusive of

people w i th l imi t ed phy sical abi l i t ies. Also un der SCC, School Distr ict #85 (Vancouver Is land N ort h) cont racted t o

lease space on the Port H ardy Secondary School si te t o t he Stepp ing Ston es Centr e for Ear ly Chi ld Developm ent.

SCC is sim i lar to th e Neighbourh oods of Learning pi lot project, a l thou gh arguably better d esigned to m eet

com m unit y needs by partn er ing w ith m unicipal i t ies. Al tho ugh the design and object ives of SCC are consisten t

w ith the goal of reta in ing un derut i l ized and closed schools for publ ic use, the draw back to r e lying on SCC for

school green space planning is that t he pr ogram s focus is school faci l i tyuse, not l anduse. As such, a sim ilar

partn ership mod el could be establ ished or t he m andate of SCC could be extended t o include planning for

schoo ls as pub lic green space.

A School Green Space Partn ership w ould a lso create infrastructure t o explore oppor tun i t ies for enviro nm ental

educat ion , a grow ing need g iven our cur ren t c l imate cr isis. Tw o exam ples tha t com e to m ind are com m uni ty

gardens and ecosystem r estor at ion. Com m unit y gardens on school lands w ould g ive student s t he opport uni t y

to learn about food secur i t y and u rban sustainabi l i ty. In Greater Victor ia, The LifeCycles Project Society, a non-

pro f i t comm uni ty-based organ iza t ion , runs a Grow ing Schoo ls p rogram to teach student s about f ood secur ity ,

comm uni ty deve lopment and t he env i ronment th rough organ ic food gardens on schoo l g rounds. The program

has becom e extrem ely popular w i th gardens establ ished in 12 schoo ls and 15 schoo ls on t he w ait l ist . 28

Using areas of school land for e cosystem r estor at ion w ould a lso give stud ents the opp ort uni t y to learn about

the ben efi ts of conserving and restor ing natural spaces. Al tho ugh school yards are typical ly w ide sw aths of

im port ed grass that bear l i t t le ecological value, the o pen space is a perfect op port uni t y to r est ore designated

areas to a m ore natu ral state, achieving bot h educational and environm ental goals. Stud ents wo uld learn

hands-on about t he im port ance of b iodiversi ty and ecological processes. By purposing school land in th ese

w ays, i t reaff i rm s the lands value as cr i t ica l green space into the fut ure.


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The interests of educatio n and green space are not m ut ual ly exclusive, as both are essentia l com ponent s to t he

creation of healthy com m unit ies. Indeed, by not sel l ing school lands for developm ent dur ing enrolm ent d ips,

the in terests of edu cation, local p lanning, and green space conservation are m et:

The land and faci l i t ies are held in reserve to accomm odate fut ure publ ic school enrolm ent grow th(enrolm ent d ecl ines are predicted t o level off by 2013 just 4 years away);

The land is reta ined as an im port ant part of a m unicipal i ty s green space invento ry; The faci l i t ies can be leased for com m unit y purp oses, provid ing school d istr icts wi t h an im port ant

revenue s t ream ;

I f the land is si tuat ed on or n ear a fragi le ecosystem , the environm ental integr i ty o f the area rem ainsintact; and,

Com m unit ies that re ly on schools and school lands as a p lace for pu bl ic gather ings, recreation andcomm unity act iv i t ies are not destabi l ized.

Local Govern m en t Strat egies

Because schools and school yards are an integral part o f com m unit y heal th, local governm ents have an interest

in w hat happens to the land w hen t he schoo l is closed. Fur therm ore , loca l government s have the m andate and

too ls necessary to effect ively p lan for land u se, unl ike the m inistry or school d istr icts. Therefore, i t is imp erat ive

that lo cal governm ents be brought in to t he decision-m aking process of how to r eta in underu t i l ized schools, as

em phasized above. Two t ools avai lable to local governm ent f or land use planning are zoning bylaw s and Off ic ia l

Com m unity Plans. This sect ion o f t he rep ort br ief ly d iscusses the ef f icacy of zoning and OCPs as a m eans to

prot ect school lands and pr ovides exam ples of how zoning and OCPs have been appl ied.

Zoning is a way t o regulate land use by categor izing propert ies for speci f ic perm itt ed uses. Section 903 of th e

Local Governmen t Act(LGA) auth or izes local governm ents to enact zoning bylaw s, including the po w er to

proh ib i t uses. The sect ion pro vides as fo l low s:

9 0 3 (1 ) A loca l governm ent m ay, by by law, do one or m ore o f t he fo l lowing :

(a) d ivide the w hole or part of t he m unicipal i ty or regional d istr ict in to zones, name

each zone and establ ish the bou ndar ies of t he zones;

(b ) l im i t the ver t ica l exten t o f a zone and prov ide o t her zones above or be low i t ;

(c) regulate w i th in a zone

( i ) the use of land, bui ld ings and other struct ures,

( i i ) the densi ty of th e use of land, bui ld ings and ot her structures,

(i i i) th e sitin g, size and dim ensions of

(A) bui ld ings and other stru ctures, and

(B) uses that are perm itt ed on the land, . . .

* * * * * *


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Oak Bays P9 zoning bylaw , the Cow ichan Val ley Regional Distr ict s Off ic ia l Com m unit y Plan am endm ent , and

the Distr ict of Saanich Off ic ial Com m unit y Plan.

Distr ict o f O ak Bay P-9 Zoning

In 2006, the Distr ict of Oak Bays at tem pt to prot ect ively zone a closed-school si te survived a court chal lenge by

the school board opp osing the restr ict ive zoning. For t h is reason, Greater Victor ia School Distr ict No . 61 v. Oak

Bay (Distr ict) is a helpfu l i l lustrat ion o f ho w local governm ents can successful ly rezone closed-school proper t ies

and th e l ikely object ions to such rezoning by school d istr icts.30

Uplands School w as perm anently closed in June, 2003. Dur ing th e closure p rocess, the Oak Bay Counci l agreed

tha t i t w ou ld be desi rab le i f t he proper ty remained in pub l ic ow nersh ip and pre ferab ly as an educat iona l

faci l i ty.

31

Appro ximat ely one year later , the M ayor of Oak Bay expressed concern to Counci l that t he P-1zon ing , wh ich had been in p lace s ince 1986, a l low ed fo r deve lopment tha t m igh t be inconsisten t w i th t he

character of the neighbourho od around the school si te. Aft er unsatisfactor y d iscussions w ith the School

Board , in Septem ber 2004, Counci l adopted a spot -zoning bylaw (No. 4235) to en sure th e propert y of Uplands

School w ould rem ain undeveloped and in pu bl ic use.

The new by law rezoned the proper t y t o P-9 Ne ighbourhood Civ ic Inst i tu t iona l Use, de f ined by re fe rence to

Civic Use as defined in bylaw No. 3531, which read:

Civic use m eans a use provid ing for pu bl ic funct ions under th e auspices of a governm ent bo dy;

includes federal , provincia l and m unicipal off ices and y ards, publ ic w orks, publ ic schools, universi t ies

and col leges, publ ic hospi ta ls, com m unit y cent res, p layschools, k indergartens, day nur ser ies, day careschools, sw im m ing poo ls, l ibrar ies, m useums, parks, p laygrounds, pol ice stat ions, f i re stat ion s and

waterways.

The by law a lso reduced permi t t ed lo t coverage f rom 30% to 10% and l im i ted t he he igh t o f any st ructure and the

amount o f sur face tha t cou ld be paved:

11.9.4(3) Not m ore t han 7.5% of th e area of any parcel may be surfaced wit h asphal t , concrete, br ick,

g rave l o r o t her hard m ater ial .

* * *

11.9.5(1) On any parcel , the com bined lot coverage of a l l bui ld ing and structures shal l not exceed 10%.* * *

11.9.5(4) No bui ld ing shal l have a bui ld ing h eight in excess of 7.6m (24.9 feet) .

W i th in a mont h a f te r the b y law w as adopted, the Greater Vic to r ia Schoo l D ist r ic t No. 61 f i led a pe t i t ion in th e

Suprem e Court cont est ing the val id i ty of t he new b ylaw. The Cham bers judge upheld i ts val id i ty, but the

decision w as overt urned on appeal. Despi te th is, part of the bylaw survived th e court chal lenge and prevented


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Uplands School from being sold for developm ent in 2006. The School Boards main object ion t o th e bylaw is

review ed below , as is the current version of P9 zoning, now called Neighbour hood General Inst i t ut io nal Use.

The Board did not ob ject to t he height and densi ty rest r ict ions imposed by Bylaw N o. 4235, how ever, the Board

ob jected t o the pub l ic-user requ i rem ent b y re fe rence to c iv ic use . Al t hough m un icipa li t ies are s ta tu to r i l y

perm i t ted t o regu late land uses, they are no t , w i thout speci f ic p rov ision , permi t t ed to regu la te w ho uses theproper ty . 32 The Board ci ted t he Suprem e Court of Canada decision R v. Shar m a, w here in the Cour t he ld tha t i t

i s a fundament a l p r incip le o f m un ic ipa l law t ha t by laws must a f fect equa l ly a l l those w ho come w i th in t he amb i t

o f the enab l ing enactm ent .33 The Board argued that Bylaw No. 4235 vio lated th is pr incip le by perm itt ing only

pub l ic users fo r the schoo l si te t hose opera t ing under governm ent ausp ices and tha t th is amounted to

discr im ination against pr ivate u sers. The Court of A ppeal agreed.

Aft er the judgm ent, Oak Bay amen ded t he bylaw so that i t curren tly exists as P9 N eighbourho od General

Inst i tut ional Use, def ined by refer ence to General Inst i t ut io nal Use instead of civ ic use:

GENERAL INSTITUTIONAL USE m eans the u se of land f or: legislative cham ber s, and o ffi ces, archives

and m eeting roo m s anci l lary theret o; parks; p laygrounds; p laying f ie lds, and change room s, w ashroo m s,

m eeting room s, sport s equipm ent storage faci l i t ies, score boot hs and bleachers anci l lary th ereto; po l ice

and f i re stat ions; comm unit y centres; a l lotm ent gardens; schools; universi t ies; col leges; kindergartens;

pre-schools; chi ld day care centres; recreation centres; ci rculat ing l ibrar ies; wo rks or f aci l i t ies

appur tenant t o com m uni ty w ater d ist r ibu t ion system s, com m uni ty sewage co l lect ion system s and

comm uni ty s to rm w ater co l lec t ion system s; and inc ludes the use o f land covered by w ater fo r a

breakw ater. (Bylaw 4305 Apr i l 24/ 06) (Bylaw 4428 Sept 29/ 08)34

General Inst i tut ional Use is the on ly use perm itt ed in P9 zones. The main d i f feren ce betw een th is bylaw and i ts

predecessor is that t he land m ay be used by pr ivate ow ners and occupiers, l ike ly pr ivate school use. Ofim port ance, the bu i ld ing coverage restr ict io n of no m ore t han 10% remains in force, as does the 7.5%

restr ict ion on paved surfaces. Al tho ugh the lands can st i l l be used for pr ivate school use, the develo pm ent

restr ict ions render th e land unm arketable and so i t rem ains unsold. Current ly, Uplands School is used as an

in te rna t iona l student f aci l i ty , p rov id ing Schoo l Dist r ic t No. 61 w i th an imp or tan t revenue st ream. And, when

school enro lm ent rebo unds in the fu tur e, the schoo l d istr ict w i l l st i l l ow n Uplands School, provid ing a school and

green space in the hear t o f t he comm uni ty .

Cow ichan V al ley Regional D ist r ict Of f icia l Com m unity Plan Am endm ent (Bylaw No. 3074)

In 2008, the Cow ichan Val ley Regional Distr ict amen ded Ar ea E of i t s Off ic ial Com m unity Plan in response to

several school closures and one school sale to a pr ivate pur chaser (Bylaw No. 3074/ 5).35 The amendm ent

states the Regional Distr ict s com m itm ent t o ensur ing closed schools rem ain in publ ic use, render ing th e

prop ert ies less attr act ive to develop ers. I t is w ort h including the key provisions of th e CVRD am endm ent as a

m odel for ot her m unicipal i t ies and regional d istr icts to consider fo l low ing.

10.3 Public School Propert ies


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The background o f t h is Off ic ia l Com m unit y Plan includes a review of School Distr ict p ol icy. School Distr ict

79 has focused i ts pol icy ont o centr a l ized schools, w i th larger student populat ions. This is evident in t he

closure and sale to a pr ivate party of Saht lam School, and th e recent closure of t he school and Cow ichan

Stat io n. Schools havee also been closed at Pald i and Glenora. Only Koksi lah School rem ains in op erat ion,

w i th in the p lan area .

W hi le there is undoubted ly an economic argument a t w ork here , there is a lso a s t rong com m uni ty aspect to

schools and the r o les they fu l f i l l , especia lly in rural comm unit ies. The CVRD bel ieves that the im port ance of

schools and school si tes to the com m unit y m ust be considered in th ese decisions and in the subsequent

disposal of school pr opert ies deem ed to b e surplus.

The CVRD theref ore w i l l make a real effor t to en courage the ongoing use of surplus school pro pert ies for

publ ic assembly, recreation, education and cul tur al act iv i t ies. This effor t m ay involve land acquisi t ion o n

beha l f o f the comm uni ty , zon ing amendm ents where t hese w ou ld enhance ongo ing pub l ic use , and

w here appropr ia te suppor t o f th i rd -par ty comm uni ty assoc iat ions tha t m ay propose to acqu i re these

propert ies.

Schools are gather ing places for the com m unit y, p laces of socia l izat ion, centres of recreational act iv i t ies

and, in rural areas and sm al ler sett lem ents, they are often t he very heart of t he comm unit y. School

prop ert ies are therefo re vi ta l to the heal th and w el l -being of such comm unit ies, and need to b e preserved

in p ubli c use.

POLICY 10.3 .3

W here t he School Distr ict prop oses t o close schools and sel l off t he pro pert y and bu i ld ings, the Regional

Distr ict stron gly encourages the Schoo l Distr ict and M inistry of Education t o g ive preferen ce to local

comm unit y groups and associat ions as w el l as regional recreation f unct ion s, amo ng other s, a l l of w hom

w ould keep t he bui ld ings and faci l it ies open to t he pub l ic. Al tern atively, long-term leases of such

prop ert ies to appro pr iate bo dies wi l l be strongly encouraged by the CVRD.

POLICY 10.3 .4

Examples of pu bl ic uses that the CVRD considers to be w ort hy of encouragemen t at d isused school si tes are

daycare, pre-school and kindergarten, aft er-school care, a ltern ative education (pr ivate or publ ic) , senior

ci t izens programs, civi l emergency pub l ic shel ter and simi lar uses. The CVRD is prepared t o w ork w i th the

comm unit y and oth er governm ent agencies in order t o encourage such uses at d isused schoo l si tes.

POLICY 10.3 .5

The Regional Distr ict considers a l l propert ies and faci l it ies that are zoned as Parks and Inst i tut ional in the

im plem enting zoning bylaw t o be imp ort ant for pu bl ic uses, and convert ing th eses sites to an al ternat ive

land use zone t hat w ould exclude the pu bl ic and close the faci l i t ies w i l l be very stro ngly d iscouraged by the

Board.

POLICY 10.3 .6


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The Regional Distr ict m ay be prepared t o consider adding perm itt ed land uses, such as l im i ted com m ercia l ,

to the Parks and Inst i t ut io nal zones that apply to schoo l si tes, so long as these uses wou ld be

complem entary to the pr incipa l inst i tu t iona l use .

.

POLICY 10.3. 8

In ru ra l comm uni t ies where a schoo l o r schoo l si te represents one o f the very few or perhaps even the

only pu bl ic inst i t ut io nal gather ing place, the CVRD Board w i l l w ork especial ly hard t o ensure th at t hese

sites remain in a zone w hich wo uld only perm it pub l ic uses to o ccur.

The Cow ichan Val ley Off ic ial Com m unity Plan provides a good example of how a local governm ent can use i ts

OCP to dem onstra te a com m i tm ent t o re ta in ing underu t i l i zed schoo ls fo r pub l ic use . W hen pa i red w i th a zon ing

bylaw t hat restr icts developm ent, th e preservation o f school lands as publ ic green spaces may be real izable.

Unfo rtu nately, the accomp anying zoning bylaw for t he Cow ichan OCP, Parks and Inst i tut ional Zones, a l lows

for up t o 40 percent lot coverage for a l l bui ld ings and stru ctures. In th is case, developmen t restr ict ions such as

Oak Bays P9 Zone w ould be m ore consonant w i th t he OCP object ive.

Planning ahea d fo r Rezoning School Lands: The Distr ict of Saanich Off icial Com m unity Plan

The Distr ict of Saanich Off ic ial Com m unit y Plan includes a good exam ple of p lanning ahead for school land use.

Un der Section 4.2.6. School s, Know ledge Cent res and Instit ut ional, th e OCP states:

i) That rezoning of exist ing pu bl ic school si tes to a l low for non- inst i tu t ional uses shal l only be support edw here the propo sed use wou ld resu l t in :

a . The sett ing aside of at least 5 0% of the site a s publicly-accessible op en space or;b. Provision of o ther signi f icant n eighbourh ood p ubl ic amenit ies, as provid ed for u nder Section

904 or 905.1 of the Local Governm ent Act.

ii ) That considerat ion b e given to amend ing the inst i tut ional zoning of pub l ic schools by introd ucingrestr ict ive maxim um lot coverage and increased setbacks in order t o encourage the ret entio n of

existing ope n space.36

(Em phasis in bo ld added .)

As noted ear l ier , OCPs are of l i t t le use i f exist ing zones are inconsistent w i th t he vision la id out in th e plan.

Current ly und er t he Distr ict of Saanich zoning bylaw , schools fa l l under P-1 Inst i t ut io nal Zone, which accords

them l i t t le protect ion . At th e July 21, 2008, Saanich Coun ci l M eeting i t w as recom m ended th at schools be

remo ved f rom the P-1 zone and in to the i r ow n zone so t hey can be dea l t w i th separa te ly and in accordance w i th

th e OCP.37

Regiona l Park D esignat ion

Anot her pro tect ive strategy to consider is for local governm ents to acquire closed-school lands and t urn t hem

into regional parks as part of a bro ader green space str ategy. The new School Bui ld ing Closure and Disposal

Pol icy m akes th is m ore affor dable, as m unicipal i t ies can purchase school pro pert y for a comm unit y use for less

than m arket value. Section 30 of the Com mu ni ty Char ter enables a local governm ent coun ci l to reserve or


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ded ica te proper ty as a park o r pub l ic square by an a f f i rm at ive vo te o f a t least 2 / 3 o f a l l the m embers o f

counci l .38

By turnin g closed-school lands into regional parks, the land rem ains undeveloped and publ ic ly accessib le. And

w hen schoo l enro lm ent r ises in the fu t u re , a buy-back or jo in t -ow nersh ip agreement m ay be negot ia ted . Th is

ensures the green spaces that school lands provide w i l l rem ain intact for fut ure generat ion s.


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has a defeasib le interest in land and fa i ls to m eet th e condi t ion t hat i t b e used for an educational purpose, the

dono r ( i f deceased, the don or s estate) has the r ight t o step in and rescind the do natio n. This is cal led the r ight

of re-entr y . Unl ike a determ inable interest, the reversion is not aut om atic, and legal act ion w i l l l ike ly be

requ i red to exercise th is r igh t . Phrases l i ke on cond i t ion tha t , bu t i f , i f i t happens tha t a re normal ly taken

to re fe r t o a cond i t ion subsequent .

The condi t ion or l im i tat ion of a donation m ay prohib i t a school d istr ict fr om sell ing school land i f the land i tsel f

w ould no longer be used for an education al purp ose ( i .e. sold for housing developm ent) . Al tho ugh i t can be

argued that the education al-purpose condi t ion or l imi t at ion is inval id43 , i t is h ighly unl ikely that t h is argum ent

w ould succeed because a grant of land for speci f ic purp oses is a w el l -establ ished form of a qual i f ied o r

condi t ional g i f t .

I f an in te rested parent , t eacher , schoo l t rustee or com m uni ty m emb er w ishes to rev iew a schoo l board s t i t le t o

a piece of school land, access to land t i t le records in BC is possib le th rough the fo l low ing channels:

A lawy er, notary pub l ic, or land surveyor A t i t le services ( t i t le search) com pany: look under Ti t le Services in t he yel low pages to f ind a Tit le

Search Agent (also kno w n as a Registry Agen t)

A BC Governm ent Agent In person at a Land Ti t le and Survey Auth or i t y (LSTA) Off ice in e i th er Kamloop s, New W estminster o r

Victor ia.

The above sources have access to LTSA electro nic docu m ent s, w hich req uire s fee-b ased user accoun ts and

password s. The LTSA w ebsi te provid es a l ist of law yers and not ar ies who use the Electronic Fi l ing System :

www.l tsa.ca/efs- locator . In any event, i t w i l l be necessary to re ta in a lawyer w ho is tra ined in W i l ls or Trust Law

to adv ise a comm uni ty o r schoo l board about the rest ra in ts a donat ion m ay impose on a schoo l board s ab il i ty

to u se or sel l the land.

Appen dix B: Grants of Crow n Land for Educational Purposes

I f land is granted by the Crown t o a school board, the Disposal of Land or Imp rovem ents Order (M 193/ 08) does

not app ly, nor does the School Bui ld ing Closure and Disposal Pol icy. Instead, the m anagement of Crown land

granted t o a school board is governed by sect ion 99 of t he Schoo l Act.

To prov ide context , the BC M in ist ry o f Comm uni ty Deve lopment exp lains,

Governm ent has histor ical ly provided Crow n land to local governm ents, publ ic agencies and

com m unit y organizat ions to suppo rt p ubl ic purposes. This land has been provided at less than m arket

value through a Crow n Grant.. . . This prom otes econo m ic and socia l developm ent th rough provid in g

access to Crow n land for pub l ic faci l i t ies and comm unit y infrastructure. 44


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Grants of Crow n land to governm ent corpor at ions and b odies are g iven effect by sect ion 51 of the Land Act,

R.S.B.C. 1996, c. 246, wh ich prov ides as fol l ow s:

5 1 (1) Despi te any ot her provision of th is court, Crow n land m ay, w i th t he approval of

the Lieutenant Governor in Counci l and subject t o t he term s, reservations and

restr ict ions th at t he Lieutenant Governor in Counci l considers advisable, be disposed

of by Crow n grant under th is Act , f ree or o th erwise to a . . .schoo l board , f rancophone

educat ion au th or i ty as de f ined in t he Schoo l Actor o ther governm ent re la ted body. ..

(2) A disposi t ion un der subsection (1) may be l im i ted t o a speci f ic publ ic purpose.

Th e Schoo l A ctalso contains provisions regarding Crown grant s to school b oards and ou tl ines procedure f or

m anaging Crow n land granted in t rust for an educational purpo se. Section 99 of th e Schoo l Actprovides as

fo l lows:

9 9 (1) The Lieutenant Governor in Counci l m ay grant Crow n land in a school d istr ict to t he board of t heschool d istr ict , in tru st for educational pu rposes and as a si te fo r a school b ui ld ing, housing

accomm odat ion fo r s tudents o r em ployees or board o f f ices.

(2 ) Crow n land gran ted under subsect ion (1 ) mu st be he ld by t he board in t rust fo reducat iona l purposes and m ust n o t be d isposed o f except w i th t he consent o f and on t e rm s and

condit ion s f i rst approved by t he Lieutenant Governor in Counci l .

(3) If th e land granted und er subsection (1) is no lon ger required f or t hose educational purpo ses,

the m in iste r m ay no t i fy the reg ist ra r o f t he land t i t le d ist r ic t in w h ich the land is loca ted , and t he

registrar m ust then cancel the registrat ion of t he board 's t i t le on the record s of t he land t i t le off ice.

As per sect ion 99(1), land granted in tr ust carr ies legal signi f icance. W hen land is granted in tru st , i t means

the land is m anaged by a person or organizat ion (cal led the tru stee) for t he benefi t of an oth er (cal led the

benefic iary) . The tru stee holds legal t i t le of the land and the benefic iary holds equi table t i t le , w hich is the

r ight to u se and enjoy the land. In th is case, the r ecip ient school board of crow n land granted in tru st for

educational purposes ho lds legal t i t le for those who ben efi t fro m edu cational purposes. Presum ably, th e

benefic iary is the com m unit y the school serves.

In act ing as t rustee , the schoo l board o w es a f iduc iary du t y to the schoo l comm uni ty , w ho are the benef icia l

ow ners of the granted land. A f iduciary dut y is a re lat ion ship of tru st and confiden ce, w hereby one part y re l ieson the adv ice or p ro t ect ion o f the o t her . The law im poses a f iduc ia ry du ty on t rustees, who m ust a lw ays act f o r

the benefi t and int erests of t he benefic iary. This obl igates school boards to be for t hr ight in m anaging lands

granted by t he Crow n, in t rust fo r educat iona l purposes .

Subsection 99(3) of t he Schoo l Actalso re info rces th is specia l purp ose by requir ing that the land r evert back t o

the Crown i f no longer requ i red fo r an educat iona l purpose. Perhaps impor tan t , the w ord requ i red is inser ted


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instead of used, suggesting that a l thou gh a school board m ay not use the land for edu cation al purposes, th e

land is sti l l required, and therefo re can be reta ined. For example, presumably under th is provision a school

board w ould be able t o lease a school no lo nger usedfor educational purp oses to generate revenu e for

educational purp oses elsew here in t he distr ict .

Subsection 99(2) perm its a school board t o sel l land that w as granted by th e Crow n w ith t he consent of and o nterm s and condi t ions f i rst appro ved by the Lieuten ant Governo r in Counci l . The Lieutenant Govern or in Coun ci l

m erely acts on and w ith t he advice of the Executive Counci l or Cabinet, so in actual i ty i t is a min ister w ho

approves and impo ses term s and condi t ion s on a schoo l board w ith regard to sel l ing land granted by t he Crow n.

As such, sect ion 99(2) is not that d i f feren t from the School Bui ld ing Closure and Disposal Pol icy, w hich requires a

board to seek the approval of the m inister (of Education) pr ior t o sel l ing school pro pert y. The only d i f feren ce is

that under the Pol icy a school b oard can sel l land to ano ther school board , including francopho ne and

independent boards, w i thout requ i r ing the M in iste r s approva l .

Subsection 99(2) provides an al ternative to the reversion descr ibed in subsection 99(3). Reading subsection

99(2) and (3) together , i t w ould seem a school b oard can sell the land in cert a in circum stances w ith t he appro valof t he Lieutenant Governor in Counci l , perhaps i f the p roceeds are required f or education al purposes.

Otherw ise , subsect ion 99(3) p rov ides i t m ay rever t back to t he Crown a t t he d iscre t ion o f t he m in iste r .

I t m ay be usefu l to no t e tha t i f the land does rever t back to the Crown as per subsect ion 99(3) , it w ou ld be

possib le for the p rovince to classi fy th e closed-school land as a provincia l park or recreation area. W hi le

recognizing the b est case scenar io is for a school b oard t o cont inue using the land f or ed ucational purp oses,

subsection 99(3) may have a ro le to p lay i f the land is no longer requ ired for an edu cation al purpose. This is

because unl ike a regional park, a provincial park is created from parcels of Crow n land. Therefore, i f the land is

no longer required fo r an education al purpose it w i l l revert back to th e Crow n, enabl ing the Crow n to establ ish

the green space as a provincia l park. Section 5 of the Park Actreads as fo l low s:

5 (1) The Lieutenant Governor in Counci l m ay(a) estab lish an ar ea of Crow n lan d as a Class A, Class B or Class C par k, or as a

conservancy or re creatio n area,.45

I t should b e em phasized t hat i f c losed-school lands are to be classif ied as a provincia l park, i t w ould l ike ly be

d i f f i cu lt fo r a schoo l board t o rec la im the land fo r schoo l purposes i f and wh en the schoo l board r equ i res

addi t ion al faci l i t ies. How ever, th is rem ains a possib i l i ty for preserving closed-school lands as publ ic green space

Notes:

1LANDS (Lets Agree Not t o Dispose of Schools), Heres wh at w e know so far: Retr ieved fr om :


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ht tp : / /bclands.weebly.com on Novem ber 30, 2008.

2BC Teachers Feder atio n, School Closures. Retr ieved f rom : ht tp : / / w w w .bct f .ca /SchoolClosures.aspx on October 10,

2008.3

David Cubberley, M LA (Saanich Sout h), School Lands Publ ic Asset or Cash Cow ? M ay 2008.4

[R.S.B.C. 1996], c. 412.

5 Personal com m un icatio n, Jessica Van der Veen, LANDS.6

M inistry of Education , Bri t ish Colum bia, 2008-09 Capital Plan Instruct ions, 2007, p. 7.7

M inistry of Education , Bri t ish Colum bia, Disposal of Land o r Improvem ents Order , M inister ia l Order M 16/ 03,effect iv e January 2003, repealed by M 233/ 07.

8Supr a note 3.

9M edia Release, Friends of Fairburn and LANDS,Fairbur n School Lands M em orial Service, released June 9.

10M inistry of Education , Bri t ish Colum bia, Disposal of Land or Im provement s Order , M inister ia l Order M 233/ 07,

ef fect ive Septem ber 14, 2007, rep laced M 16/03, repea led by M 193/08.11

Speech from the Throne, 3rd

Session , 38th

Parl iamen t of the Province of Bri t ish Columbia, Februar y 13, 2007.12

pol icy13

New s Release, M inistry of Education, N eighbourh oods of Learning M ap new Futu re for Schools, releasedSept em ber 3, 2008.

14

M inistry of Education, School Bui lding Closure and Disposal Pol icy, Septem ber 2008. Retr ieved from :ht tp : / /www.bced.gov.bc.ca/po l icy/po l ic ies/school_closure.h tm# on Novem ber 5 , 2008.15

M inistry of Education , Bri t ish Colum bia, Disposal of Land or Im provement s Order , M inister ia l Order M 193/ 08,

rep laced M 233/07.16

Calvin Sandbor n, Green Space and Grow th : Conserving Natural Are as in BC Com m unit ies, M arch 1996. A

research paper prepared fo r th e Com m ission on Resources and t he Environm ent , Wildl i fe Habit iat Canada,Fisheries and Oceans Canada, and the M inistry of M unicipal Affairs and Housing. Cont act Calvin at

[email protected]

[R.S.B.C. 1996 ] c. 32 3.18

Supr a note 16, p 83 (no te 2).19

Ib id, p 83 (note 2).20

California Edu cation Code. Accessible from th e off icial si te for Cal i fornia Legislat ion, m aintained by the Legislat ive

Council of California: h t tp : / /www. leg in fo .ca.gov/ 21 California Government Code, accessible fro m th e off icial si te for Cal i fornia Legislat ion , maint ained by the Legislat ive

Council of California: h t tp : / /www. leg in fo .ca.gov/ 22

Supr a not e 15, Policies and pro cedures: 6. Boards m ust deve lop and implem ent p o l icies and procedures wi th

respect to t he disposal o f land or impro vement s under sect ion 96(3) o f th e Schoo l Act, consisten t w ith this Order,

and m ake these pol icies and pr ocedures publ icly avai lable.23

Forest Pract ices Board, Board Bul let in, Volume 3 Oppor tun ity fo r Publ ic Consultat io n und er the Forest and Range

Pract ices Act .

24School Com m uni ty Connect ions. In form at ion re t r ieved f rom ht tp : / /www.schoolconnect ions.ca on Decemb er 3, 2008.

Cont act: UBCM Local Governm ent Program Services.25

Ib id.

26 Ib id.27

Ib id.28

Lifecycles at h t tp : / /www. l i fecyclespro ject .ca .29

Altho ugh the OCP can be amend ed at th e sam e t im e as land is rezoned, to m ake the zoning and OCP consisten t w ith

each o t her .

30Greater Victo r ia School Distr ict No. 6 1 v. Oak Bay (Distr ict) [2006] B.C.J. No. 110, 2006 BCCA 28, 264 D.L.R. (4

t h)

100.31

Ibid, para. 3.


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Documents

School Lands Memo -- Final, January 20, 2009