Vancouver British Columbia - Vancouver has offered to give Canadian Pacific Railway "its rightful share" of any increased value in the contested Arbutus Corridor should a future council decide to develop the property.
 
The offer is contained in a letter Mayor Gregor Robertson sent to the chairman of CP Rail, Hunter Harrison, at the end of July as the railway was poised to begin ripping up unauthorized gardens along its 11 kilometre line.
 
Robertson's council, as well as previous administrations, have been adamant that they consider the long-disused line between False Creek and the Fraser River an important public transportation and park corridor.
 
They fought CP's attempts to develop the 45-acre property all the way to the Supreme Court of Canada, where CP argued the city had de facto expropriated the land without compensation.
 
The court disagreed, saying the city had the right to set zoning, and that CP was still able to use the line for its original intended purpose.
 
The two sides have been far apart since, with the city offering $20 million for the land and CP arguing, according to the city, that it is worth $100 million or more based on its future development value.
 
Now, as the railway makes good on its threat to demolish gardens and structures that encroach on its right-of-way, the city is feeling the heat from both gardeners and the company to sweeten the offer.
 
In his 28 Jul 2014 letter to Harrison, the mayor acknowledged that the current official development plan relegating the corridor for transportation and green space could be changed by a future council.
 
Although Robertson doesn't support that happening, such a change could raise the land's value.
 
"In the discussions between the City and CP to date, and in our letter of offer dated 12 May 2014, the City Manager (Penny Ballem) recognized that, if there is any future change to the Official Development Plan by a future Council to allow for broader land use, any agreement reached by the City and CP can reflect a methodology to ensure that CP receives its rightful share of the enhanced land value," Robertson wrote.
 
"This is fair and acknowledges the fact that land use regulation can be adjusted by future councils."
 
Breanne Feigel, a CP spokeswoman, said the company has not officially responded to the mayor's offer and has not disclosed its asking price.
 
The company has decided it makes sense to restart rail operations along the line if it cannot sell the land for what it believes it is worth, she said.
 
Meanwhile gardeners, particularly along the southern reach of the line where CP last week opened its war on unauthorized encroachments, appear to be pulling their tomato and squash plants and garden sheds back over the line.
 
For more than 25 years gardeners have planted adjacent to the line, and in recent times the city legalized the action by creating a series of community gardens on city property adjacent to the right-of-way.
 
It put in water lines and other services, but has not encouraged gardeners to encroach on CP property.
 
CP has also registered leases on its right-of-way for commercial purposes, such as parking lots that run almost up to the tracks.
 
The city's offer appears to recognize CP's concern that a future council could change the zoning for the land, no matter how much previous administrations and the public have said it should be kept for public uses.
 
Municipal law experts say there is nothing preventing the city from changing the zoning to open the door for development.
 
"Yes, the city has authority and jurisdiction to amend its official development plan, but subject only to significant amount of consultation," Vancouver lawyer Donald Lidstone said.
 
Councils cannot "fetter" future administrations from making changes that are in keeping with regional context statements or even the official development plan, he said.
 
There are limits, however.
 
The city can't bring in a change or a bylaw that would be inconsistent with the official development plan and that would constitute "an absolute and direct collision" between the two.
 
With the official development plan aimed at preserving public space, major developments would seem to be out of the question.
 
"If they wanted to build a 64-storey skyscraper there, it would be an absolute and direct collision," Lidstone said.
 
It is more likely that the city and CP can come to a mutual agreement over how some of the land can be developed, he said.
 
"In this case, I think that CP's decision to kick out the tomato-growers in the height of the election season was an attempt to force the issue with the city.
 
But given the existence of the corridor official development plan, I don't think it really changes anything," Lidstone said.
 
"There may be a hybrid solution where part of the land along the corridor, particularly in the areas that are more dense, could be used for social housing, with the full consent of CP but with proper compensation.
 
And other portions could be used for greenways, such as is done in Europe, where they are totally divorced from the roadways."
 
Jonathan Baker, a former Vancouver councillor and a lawyer specializing in municipal legislation, is more skeptical.
 
He said he has no doubt that Vancouver will eventually develop portions of the Arbutus corridor.
 
"Absolutely. First of all, they can amend the ODP. It's a piece of cake. It is amended in the same manner as a zoning bylaw, two-week notice of hearing and they rezone it. They can rezone it for anything they want. Nothing keeps the ODP in place," said Baker.
 
Baker's son Gregory is running for a city council seat in the November election under the Non-Partisan Association banner.
 
Baker said he suspects the city will end up cutting a deal with CP that will allow for some amount of development while preserving public aspects of the corridor.
 
Doug Harris, a law professor at the University of B.C., said the dispute is just the latest in a long line of disagreements between CP and the city that began back when Vancouver was formed in 1885.
 
Whether it was plans to develop its north False Creek lands for dense development or the sale of a single property near Granville Island that allowed for a Starbucks coffee shop to be built on the False Creek-Arbutus Corridor right-of-way, the city and CP have tussled over land-use issues.
 
Harris said ultimately it makes sense for the city to want to preserve the corridor while also seeking to develop part of it.
 
"We've got so few linear corridors that are not devoted to the automobile in the city that this is a reason to keep it intact as a route for non-motorized transportation," he said.
 
"To justify transit along the line is going to require more density, and I do think there is space for infill residential, retail commercial, and a streetcar lane or greenway."
 
In 2011, Harris, the Nathan T. Nemetz Chair in Legal History at UBC, wrote a paper exploring the history of the Arbutus Corridor dispute and the issues that led to the Supreme Court of Canada decision.
 
He noted that Vancouver has constantly challenged CP's right to develop extensive land grants the federal government gave the company in its formative years.
 
Those grants, totalling 2,613 hectares, covered much of the city's downtown, False Creek, Kitsilano, Burrard Slopes, Marpole, Kerrisdale, and Cambie neighbourhoods.
 
While CP still owns property in the city, the Arbutus Corridor, which first started as the Vancouver and Lulu Island line in 1902 serving industries and canneries along the Fraser, is the last significant piece of under-developed property in CP's Vancouver land grants.

Jeff Lee.