Agenda Index City of Vancouver

ADMINISTRATIVE REPORT

TO: Vancouver City Council
FROM: Subdivision Approving Officer in consultation with the Director of Current Planning
SUBJECT: Proposed Amendments to Subdivision By-law No. 5208 and Zoning and Development By-law No. 3575 - Leasehold Parcels
 

RECOMMENDATION

A. That Section 9.5 of Subdivision By-law No. 5208 be amended, generally as contained in Appendix A, to exempt parcels created by way of a leasehold subdivision from having to provide a minimum of 7.620 m (25.00 ft.) street frontage; and

B. That the Director of Current Planning be instructed to make application to amend Section 2 of Zoning and Development By-law No. 3575, generally as contained in Appendix B, to include reference to leasehold parcels in the definition of “site” , and that the application to be referred to a Public Hearing; and

GENERAL MANAGER’S COMMENTS

COUNCIL POLICY

There is no Council policy directly related to this matter.

PURPOSE

This report recommends an amendment to Subdivision By-law No. 5208, which would exempt parcels created by a leasehold subdivision plan from having to provide a minimum frontage on a street. It further recommends an accompanying amendment to Zoning and Development By-law, No. 3575, to include reference to leasehold subdivision parcels in the definition of what constitutes/does not constitute a “site”, for the purposes of that by-law.

BACKGROUND

Pursuant to Sections 73 and 99 of the Provincial Land Title Act, registration of a lease for a portion of a parcel of land smaller than the whole, constitutes a subdivision. A 1996 Court of Appeal decision held that leases of a portion of a parcel of land for a term of more than three years are void unless approved by a Subdivision Approving Officer. Section 101(1) of the Land Title Act states that in considering an application for approval of a leasehold subdivision, the Approving Officer shall be “guided by the principles and requirements set out in this Act applicable to the examinations of subdivisions made by subdivision plan.”.

Accordingly, it has been the Approving Officer’s practise to apply the requirements of the Subdivision By-law to a leasehold subdivision proposal, as if it were a conventional subdivision, requiring that street frontage, access, servicing and all other aspects of the By-law be met.

The Approving Officer has dealt with two types of leasehold subdivision proposals in the past. Some have involved the lease of a large portion of a development site, such as the commercial portion of the development at 1995 Powell Street/2001 Wall Street, which would appear for all intents and purposes to be a separate, stand-alone subdivided parcel. In contrast, applications for leasing of small outdoor play areas adjacent to daycare facilities have also been considered. In these cases, the leasehold parcel is not a stand-alone development site but is part of, and integral to, the operation of the daycare facility itself which is a component of an overall development scheme.

A leasehold subdivision application submitted in 1999, involving the new marina proposed for the Bayshore Gardens development, has raised questions about the strict application of Subdivision By-law requirements to leasehold parcels, specifically the requirement of Section 9.5 that each “parcel” must have at least 7.620 m (25.00 ft.) of frontage on a street, as defined in the By-law.

The marina developer has proposed that each moorage slip in the marina become a leasehold “parcel”. The term of the lease is proposed to be 30 years. The slip parcels would only front onto the wharves and fingers that connect the rows of slips and connect the marina to land. The leasehold parcels would not front onto dedicated City street and it is unreasonable and impractical to require that roads be dedicated through the marina to meet the current Subdivision By-law requirement. The parent parcel itself maintains legal frontage on both Bayshore Garden Drive and a small portion of the foot of Denman Street. A Development Permit has been issued for the marina development.

Analysis of this proposal by staff and advice from the Director of Legal Services have led to the conclusion that a Subdivision By-law amendment is required if these leasehold parcels are to be created.

In 1985, Council approved an amendment to the Subdivision By-law to exempt bare land strata lots from each having to have frontage on a dedicated City street. All other aspects of subdivision consideration continue to apply. The recommendation to amend the By-law was made on that basis that although the strata lots might only have frontage on an interior, private road, they would not have individual development rights. Pursuant to the definition of “site” in the Zoning and Development By-law, the overall strata project comprises a single site which must abut a street and be fully serviced. All requests for strata lot development are considered in the context of the whole site and individual strata lots could not be developed in isolation of that collective consideration.

Proposed Amendment to Subdivision By-law No. 5208

It is proposed that a similar exemption now be provided to permit approval of leasehold parcels that do not have the requisite street frontage, subject to support from the City Engineer, and assuming that all other criteria of the Subdivision By-law have been met. The proposed amendment to Section 9.5 of the By-law is described in Appendix A.

In addition, in order to ensure that an individual leasehold parcel is not considered to be a stand-alone site for the purposes of development, a companion amendment to the Zoning and Development By-law is also recommended, as described below.

Proposed Companion Amendment of Zoning and Development By-law No. 3575

The definition of “site”in Section 2 of the Zoning and Development By-law reads as follows:

“Site means an area of land consisting of one or more adjoining parcels or lots abutting on a street not being a lane, but does not include a strata lot.”

As described above, the specific exclusion of a strata lot from the definition ensures that such lots are always considered collectively, instead of individually. Leasehold parcels, especially those which are not “development sites”, but which may comprise an outdoor play area, or in the case of the current application, a marina slip, should also not be considered as separate sites for the purposes of application of the Zoning and Development By-law, but should be considered collectively with the remainder of the development on the site.

Therefore, it is recommended that the definition of site be amended, as outlined in Appendix B to this report.

CONCLUSION

It is assumed that an increasing number of property owners will continue to pursue leasehold subdivisions as an alternative to freehold or strata title ownership, in some instances. It is appropriate that the City’s By-laws be reviewed and updated to remain relevant to all types of applications.

While all other requirements of the Subdivision By-law can be applied equally to leasehold parcels as to a “conventional” subdivision, the requirement for frontage on a street, just as in the case of bare land strata lots, is problematic. The amendments proposed will enable the Approving Officer to grant approval to a leasehold application where there is support from the City Engineer to do so, and will further clarify the application of the Zoning and Development By-law to proposals for development on lands governed by leasehold interests.

For these reasons, the Subdivision Approving Officer in consultation with the Director of Current Planning recommends approval of the amendments as described in Appendix A and Appendix B.

* * * * *

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APPENDIX A

PROPOSED AMENDMENTS TO SECTION 9.5
(additions in bold italics)

9.5 No parcel shall be created which does not have a minimum of 25 ft. (7.620 m) abutting onto a street not being a lane, except for the following:

APPENDIX B

PROPOSED AMENDMENT TO SECTION 2
OF THE ZONING AND DEVELOPMENT BY-LAW
(addition in bold italics)

Site means an area of land consisting or one or more adjoining parcels or lots abutting on a street not being a lane, but does not include a strata lot or a leasehold parcel created under section 99(1)(k) of the Land Title Act, or successor section.

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