SUPPORTS ITEM NO. 4
P&E COMMITTEE AGENDA
JUNE 29, 1995
POLICY REPORT
BUILDING AND DEVELOPMENT
Date: May 2, 1995
Dept. File No: STRATHE2.PR
TO: Standing Committee on Planning & Environment
FROM: City Building Inspector, in consultation with the Associate
Director of Planning - Land Use and Development (Subdivision
Approving Officer)
SUBJECT: Building By-law Amendments to Exempt Strata
Title Compliance for Some Heritage Buildings
RECOMMENDATION
A. THAT the Building By-law not be amended to exempt an existing
heritage one-family dwelling from life-safety upgrading
through the use of residential sprinklers when it is not
otherwise being altered, but seeking strata title conversion
to separate the heritage dwelling and infill development on
the site.
B. THAT in calculating an equitable heritage bonus for
development proposals involving conservation of heritage
buildings and for which designation or protection of the
building through a heritage revitalization agreement will be
required as a condition of approval, staff include in the
calculation the cost of sprinklering and other requisite
upgrading as might be anticipated in future strata titling of
the premises.
C. THAT in the case of the heritage building with infill
development proposal approved at 2005 West 16th Avenue, being
a corner site, the applicant be encouraged to enter into a
heritage revitalization agreement through which Council may
vary the Subdivision By-law to permit consideration of a fee
simple site subdivision by the Approving Officer as opposed to
strata titling of the premises.
GENERAL MANAGER'S COMMENTS
The General Manager of Community Services RECOMMENDS approval of A,
B and C.
COUNCIL POLICY
The Condominium Act mandates that Council, as Approving Authority,
require a building being converted to strata lots first be upgraded in
order to "substantially comply" with municipal by-laws, with particular
regard to building regulations. This obligation includes a one-family
dwelling being converted to a strata lot when stratification is proposed
to deal with an infill development on the same site.
BACKGROUND
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On February 24, 1994 the Standing Committee on Planning and Environment
considered a report regarding a heritage retention and strata title
conversion proposal at 2005 West 16th Avenue and the owner's request to
exempt the heritage building from the sprinklering requirements. In
considering the report, Council approved the following recommendation:
"C. THAT staff report back on possible amendments to the
Building By-law to exempt heritage buildings from the
sprinklering requirement in situations limited to infill
proposals on sites occupied by single-family heritage
dwellings."
DISCUSSION
During the past few months, staff have reviewed:
- their interpretation of intent of the Condominium Act;
- what "substantial compliance" with the Building By-law
reasonably implies; and
- what options are available to Council should it wish to avoid
life-safety upgrading as an unnecessary imposition on a
heritage one-family dwelling not otherwise being altered.
The Requirements for Substantial Compliance
The Condominium Act deals with strata title approval, including existing
buildings, and states:
"9.(1) On the conversion into strata lots of a previously occupied
building by an owner developer, the approving authority may approve
the strata plan, refuse to approve the strata plan or refuse to
approve the strata plan until terms and conditions imposed by the
approving authority are met.
"9.(2) The approving authority shall not approve the conversion
unless the building substantially complies with the applicable by-
laws of the municipality...." (emphasis added).
The Subdivision Approving Officer has also previously advised that
strata titling is a form of tenure preferred by the market in order to
create separate ownership for an infill building and a remaining
principal dwelling. Fee simple subdivision of these sites is virtually
impossible in all but a very few cases.
Typical Areas of Fire Safety Deficiencies in Older Dwellings
A study of fires in older buildings indicates that most single-family
dwellings in our city were designed with a high fire-risk style of
construction, known as "balloon-framing". This entails a framing system
with extra-long wood studs continuous from basement to attic, clad both
sides with wood-lath strips for plastering, and with no firestopping at
floor, ceiling or wall lines. These stud and joist spaces were
intentionally kept wide open, to provide continuous ventilation and
prevent dampness throughout the framing members, both to inhibit the
growth of fungus. These spaces also facilitated the installation of
plumbing and electrical wiring. Unfortunately, the "free air space"
within the walls in this form of construction became the principal
reason for the spread of fires in dwellings.
As a result of thousands of fires starting and spreading throughout
these highly combustible spaces, balloon framing is no longer permitted
anywhere within North America, having been replaced with firestopped
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framing methods. Many other changes were also made to building codes in
order to minimize potential fire deaths:
- new types of exterior cladding and roofing materials have been
designed to resist conflagration and fire spreading to
neighbouring buildings;
- new interior finishes have been restricted to those which
resist flashover during fires; and
- most of the wood-panelled interior finishes would not be
permitted in new homes today without sprinklers.
In addition:
- modern electrical wiring methodology has been substantially
improved to cut down on potential electrical fires starting
within the stud spaces;
- "hard-wired" smoke alarms have been required for the last 17
years for residential-type buildings to try to warn their
occupants during those times when no one in the dwelling unit
would otherwise be aware of incipient fires. However, smoke
alarms neither contain nor put out fires; and
- currently within new dwellings, extra means of egress,
balconies, or decks are now required to come within six
metres of ground level and the overall height of wood frame
construction has been restricted, to permit safe egress from
the uppermost floors.
One of the remaining areas of concern is access for rescue work or fire
fighting from the fronting street, around or by the principal building,
to a rear infill unit(s). This access for fire fighters or stretchers
is inhibited in many cases due to narrow sideyards beside buildings that
are not fire-protected. This restricted access can be offset by good
fire suppression from sprinklers in the principal building at the front
of the infill site, in order to carry out the rescue work of other,
potentially incapacitated, occupants around or past this building, if it
were involved in a fire incident.
The New Sprinkler Technology
The installation of quick-response sprinklering - developed in the early
1980s - has become the only way to (virtually) assure life-safety in
dwellings of all ages. To date, no fire deaths have occurred in any of
the estimated 15 million dwellings constructed throughout North America
that have been equipped with these residential sprinkler systems. Staff
concluded there was no other equivalency to residential sprinklers for
the life-safety deficiencies that occur most frequently in single-family
dwellings, which is where most of the fire tragedies occur. Over 50% of
the recorded fire deaths in single-family dwellings involve senior
citizens, young children and persons with disabilities.
The above are typical of the range of problems considered by Council
before it decided to amend the Building By-law in 1990 to mandate
residential sprinklers. Their excellent success rate has also raised
the fire protection engineers' comfort levels when considering them as
equivalencies for many fire and life-safety deficiencies. No other
methodology would come close to residential sprinklering in providing
the same degree of life-safety within any of these dwellings.
Current Practice
During the past five years there were 10 similar proposals for strata
title conversion of properties containing an older one-family dwelling
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and a new infill dwelling. Of this number, three involved dwellings of
heritage quality. Except for one, which preceded the sprinkler
amendment of April 1990, all 10 were sprinklered and upgraded internally
for their life-safety deficiencies in order that the buildings
"substantially comply" with the Building By-law, as required by the
Condominium Act (See Appendix A). In reviewing the major deficiencies
of the older one-family dwellings in these projects, sprinklering was
the only methodology that could provide a sufficient level of life-
safety, relative to full Building By-law compliance.
Staff also reviewed previous proposals for upgrading of heritage
buildings of many different uses over the years and determined that the
majority have taken advantage of the sprinklering alternative to
increase their life-safety to overcome most deficiencies of the Building
By-law. In case of fire, sprinklering certainly improves the chances
that such heritage buildings will survive for future generations to view
and enjoy. In fact, even with the installation of sprinklers, many of
these buildings also maintained high quality finishes within their
interior. The Council Chamber itself is a good example of the delicate
and unobtrusive placing of sprinklers, as is the Orpheum Theatre.
The City Building Inspector believes that the appropriate time to carry
out required life-safety upgrading is when the owner is in receipt of
funding made possible because of Council's support for a heritage-
related density increase and extra buildable equity. Heritage
designation should only be given to a deserving building that our
citizens expect to remain forever; designation should not be given
lightly nor should the owner expect to reap financial gains without
assuring its lasting retention. Consequently, monies spent on such
projects should give priority investment to life-safety upgrading of the
existing building, not just cosmetic renovations.
Because of his concerns for life-safety and the fact that sprinklering
will substantially increase the chances of the heritage building
surviving a fire, the City Building Inspector is recommending A and B.
COMMENTS from the PLANNING DEPARTMENT
Before considering the pros and cons of various options, the "facts", as
we understand them, should be noted:
"Facts"
1. Before Council (as Approving Authority) approves the conversion of
a previously occupied building into strata lots, the Condominium
Act mandates that the building substantially comply with municipal
by-laws, with particular attention to building regulations;
2. A building to be converted to a single strata lot (such as an
existing one-family dwelling, with a new infill dwelling to be a
separate strata lot) is, under the Interpretation Act, a building
subject to the upgrading requirements of the Condominium Act;
3. The City Building Inspector has determined that sprinklering of the
existing building will bring it into substantial compliance with
the life-safety requirements of the Building By-law;
4. Upgrading of an unrenovated existing one-family dwelling would not
be required if the new infill dwelling was left as a rental unit,
under the same ownership as the one-family dwelling;
5. Strata titling of the property (i.e., the existing dwelling and the
infill dwelling as separate strata lots) increases the value of the
infill dwelling;
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6. Infill dwelling development will be less attractive to the owner of
a heritage dwelling if it cannot be strata titled (or subdivided)
and sold, and may be an insufficient incentive for retention and
restoration of the heritage dwelling, thus increasing the
vulnerability of many heritage dwellings to possible demolition;
and
7. The upgrading requirement of the Condominium Act can be overcome in
two possible ways:
(a) through Building By-law amendment; or
(b) through a Heritage Revitalization Agreement (under recent
heritage legislation) that would allow subdivision of corner
parcels as opposed to creation of strata lots.
Based on the foregoing, three apparent options are available:
Option 1 - Require sprinklering of the heritage one-family dwelling
as a condition of final strata approval, per the
Condominium Act.
The advantages of this option are:
- it satisfies the requirements of current legislation;
- the heritage dwelling is improved in terms of occupant life-
safety;
- the longevity of the heritage building is enhanced insofar as
possible destruction by fire; and
- emergency personnel can more safely access the rear, infill
dwelling and its occupants in the event of a fire in the
heritage dwelling.
The disadvantages of this option are:
- it requires upgrading of the heritage dwelling, at cost and
inconvenience to its owner noting that it is often difficult
and costly to retrofit a heritage building and that important
interior surfaces and features may be altered;
- required life-safety upgrading, if "essential" for the sake of
the building's occupants, should be mandated retroactively on
City-wide basis, irrespective of an application initiated
solely to enable sale of the new infill dwelling; and
- upgrading required for strata title approval may, for
financial, aesthetic or other reasons, result in the heritage
building owner's decision to abandon development of the infill
dwelling, leaving the heritage building at greater risk of
future demolition. However, the financial concern can be
addressed by calculating the compensatory heritage density
bonus in a manner that includes consideration of the cost of
sprinklering and other requisite upgrading as might be
anticipated in future strata titling.
Option 2 - Amend the Building By-law to exempt from sprinklering an
existing heritage dwelling on a corner site, which is
otherwise not being altered but which is proposed for
strata title conversion to separate it from an infill
dwelling.
The advantages of this option are:
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- it recognizes that development of a rear yard infill
dwelling on a corner site can be more readily accessed by
emergency personnel in the event of a fire in the principal
dwelling, than can a rear yard infill dwelling on an interior
site; and
- the existing dwelling would, by virtue of the Building By-law
exemption, substantially comply with the by-law without having
to be upgraded, thus facilitating approval of the strata title
application.
The disadvantages of this option are:
- it would create a unique exemption in the Building By-law to
circumvent the intent of the Condominium Act, which seeks to
ensure that every strata lot created through conversion of a
previously occupied building, will contain a unit which, at
the time of strata approval, substantially complies with the
prevailing municipal by-laws. This provincial objective of
providing a degree of consumer protection for strata lot
purchasers, will be sacrificed through this approval.
However, staff note there is no similar consumer protection
provided to purchasers of existing one-family dwellings or any
other building located on its own site; and
- the City foregoes the opportunity to improve the life-safety
of an existing heritage dwelling, increasing the future risk
to both occupants and the building.
Option 3 - Suggest that owners of heritage buildings on corner sites
wishing to sell the rear yard infill dwelling be directed
to pursue the option of a Heritage Revitalization
Agreement (HRA), through which the site might be
subdivided as opposed to strata titled.
The advantages of this option are:
- under recent heritage legislation, Council may enter into a
HRA with the owner of a heritage building. The provisions of
this agreement may vary zoning and/or subdivision by-law
regulations that would otherwise apply;
- the upgrading requirement imposed by the Condominium Act is
avoided since creation of separate legal parcels through
subdivision is pursued, rather than creation of strata lots;
and
- if subdivision is approved, the heritage dwelling and the
infill dwelling can be sold independently with no legal
interrelationship, unlike a strata lot which remains as part
of a strata corporation with attendant responsibilities.
The disadvantages of this option are:
- the subdivision of a corner site, if approved, would create
two substandard parcels in both area and depth, and the new
corner parcel would lack secondary access to the rear lane;
- the subdivision, if approved, would create two legal parcels
that would remain indefinitely, long after the heritage
dwelling and the infill dwelling have been demolished. For
all intents and purposes the subdivision would be permanent
whereas the Condominium Act addresses the demise of a strata
plan; and
- each of the proposed parcels created through subdivision in
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this manner would be regulated by the zoning provisions in
effect at the time of redevelopment (i.e., if two-family
dwelling is an outright permitted use, each parcel could be
developed as such), except as may be provided for in the HRA
(with respect to the replication of a heritage building or the
replacement of the infill building).
COMMENTS FROM THE DIRECTOR OF LEGAL SERVICES
The Director of Legal Services is concerned that Council's policy of
requiring sprinklers as a life-safety measure not be compromised by
exempting certain residential buildings, thereby placing its occupants
at a potentially greater risk. In these terms, there does not appear to
be any justification for the exemption alluded to in Recommendation A.
CONCLUSION
Staff have studied the problem and have found that many outstanding
life-safety deficiencies exist within most older existing dwellings,
whether "heritage" or not. In addition, many other fire-safety hazards
may be created within the same and adjacent properties by these
dwellings whenever infill units are constructed.
As long as the City is in the position where it cannot approve the
conversion unless the building "substantially complies" with the
Building By-law, we must enforce the current Building By-law or amend
it.
However, staff have explored the option of using the Heritage
Revitalization Agreement, which has become available through recent
heritage legislation and will not require strata titling conditions for
an existing Heritage home on a corner site since it may be subdivided
off to create two separate parcels.
A heritage Revitalization Agreement may be appropriate in this instance
to enable consideration of site subdivision (fee simple) as opposed to
life-safety upgrading of the principal building required through strata
titling (with costs unanticipated by the owner at the outset).
However, future infill proposals should be assessed in a fashion that
incorporates the costs of life-safety upgrading as would be required
upon strata titling, to ensure that the property owner receives infill
approval sufficient to compensate for this additional work to the
principal building.
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