Agenda Index City of Vancouver

POLICY REPORT
DEVELOPMENT AND BUILDING

TO:

Standing Committee on City Services and Budgets

FROM:

The Director of Current Planning in Consultation With the Subdivision Approving Officer and the Director of Legal Services

SUBJECT:

1850 Southwest Marine Drive - Restrictive Covenant Versus Rezoning

 

RECOMMENDATION

GENERAL MANAGER'S COMMENTS

COUNCIL POLICY

· There are a variety of rezoning policies and practices stemming from Section 566 of the Vancouver Charter.

· CD-1 By-law No. 6063 (184) and Design Guidelines for the Angus West Lands, enacted and approved November 4, 1986.

· There is no policy directly related to the matter of amendments to the Subdivision By-law.

PURPOSE AND SUMMARY

This report reviews the possibility of, and recommends against, using a restrictive covenant as an alternative to rezoning to restrict the RA-1 development potential which would be created if Council approved an amendment to the Subdivision By-law to enable the subdivision of 1850 Southwest Marine Drive.

It also recommends against amending the Subdivision By-law to permit the recreation of part of a historic RA-1 subdivision pattern and further recommends that Mr. John Weston be advised that if he wishes to further pursue subdivision of 1850 Southwest Marine Drive, he should re-submit his CD-1 rezoning application for the RA-1 zoned portion of the property. If such a rezoning is approved, the CD-1 would permit development compatible with adjoining CD-1 zoned lands and a subdivision could be considered without a Subdivision By-law amendment.

BACKGROUND

On May 18, 2000, Council's Planning and Environment Committee considered a report from the Subdivision Approving Officer, in consultation with the Director of Current Planning, attached as Appendix A. That report put forward for consideration two options for future development opportunity on the large, split-zoned (RS-1/RA-1) parcel fronting both Southwest Marine Drive and West 75th Avenue.

The first option was to amend the Subdivision By-law to permit a resubdivision of land in the RA-1 zone to recreate a historic subdivision pattern (the subject site had been two parcels that were consolidated in 1974 when all the "bottom lands" north of West 75th Avenue were zoned RA-1). The Approving Officer noted that in other zoning districts the Approving Officer has the discretion to relax the minimum parcel size to recreate a previously-existing subdivision pattern and the same provision in the RA-1 District would have very limited applicability. He felt that Council may consider it is reasonable to support the amendment to allow the subdivision to be approved, given Council's earlier decision to retain this site's RA-1 zoning on its bottom lands, deleting it from a larger CD-1 rezoning initiative in 1986.

The second option was not to pursue the amendment, but to encourage Mr. John Weston to re-activate his CD-1 rezoning application for the RA-1 zoned portion of the parcel. The Director of Current Planning expressed concerns about the Subdivision By-law amendment because it would result in a developable parcel under RA-1 zoning adjoined on both sides by a CD-1 district where dwellings must comply with regulations that differ from, and design guidelines not required by, RA-1 zoning. The Director of Current Planning suggested that Mr. Weston be encouraged to re-activate his rezoning application ("on hold" at his request) for the same CD-1 zoning as on the adjoining lands. Such a rezoning, if approved, would permit the desired subdivision with no amendment needed to the Subdivision By-law.

Following the staff presentation, Mr. Weston explained that his family did not wish to have the property rezoned as there is no intention to develop it in the near future. He indicated a willingness to have a restrictive covenant registered against the title of the new RA-1 parcel to limit development in such a way as to be compatible with the neighbouring CD-1 lands. As this proposal was new to both staff and Council, the Committee resolved:

On May 23, 2000, Mr. Weston withdrew his rezoning application for 1850 Southwest Marine Drive.

DISCUSSION

Mr. Weston's Proposed Restrictive Covenant: Through correspondence and meetings with staff, Mr. Weston has clarified his intentions. Essentially, he proposes that a restrictive covenant be registered on the title of the new RA-1 zoned parcel to limit permitted uses to One-Family Dwelling and Accessory Buildings with building design consistent with the CD-1 guidelines which apply to adjoining CD-1 lands. This covenant would lapse should CD-1 rezoning be approved on this parcel in the future.

The following limits would apply, recommended by Mr. Weston's architect, John Perkins:

1. maximum floor area for a one-family dwelling of 280 m² (3,014 sq. ft.);
2. maximum floor area for an accessory building of 48 m² (517 sq. ft.);
3. maximum height of 8.53 m (28 ft.) and 4.6 m (15 ft.) for an accessory building; and
4. maximum net site coverage of 38%.

Staff note that the proposed maximum floor area for a One-Family Dwelling is the same as that permitted outright under RA-1, and is similar to the sizes of existing houses on adjoining CD-1 properties. The proposed maximum net site coverage is also similar. However, the provisions for accessory buildings and height are quite different. The CD-1 zoning permits no accessory buildings, and height is measured within a series of planes to ensure houses are built with steeply-pitched roofs. There is no indication as to how the CD-1 Design Guidelines, or which of these guidelines (if any), would be included in the covenant.

Assessment of Restrictive Covenant Approach: Planning Department staff, in consultation with Law Department staff, can advise that while it is technically possible to develop a restrictive covenant to require that development be compatible with development on the adjoining CD-1 lands, staff strongly advise against it because:

1. This would set a very difficult precedent in that it would effectively rezone by covenant thereby circumventing the public rezoning process;

2. The Vancouver Charter sets out a public process for controlling land use through a zoning by-law and amendments thereto, and there is no reason to invent a parallel process;

3. The public, including prospective purchasers of this or nearby properties, could not ascertain permitted uses, regulations and design guidelines without searching title to the RA-1 zoned parcel and obtaining a copy of the covenant;

4. Considerable staff time would be required to draft the agreement and potentially, in the future, explain it to prospective purchasers of this or nearby properties;

5. There is no cost recovery for whatever public and staff review process would be used in developing a covenant because there is no fee; and

6. While the form of development under CD-1 zoning must be formally approved by Council, approval under RA-1 is given to the Development Permit Board without a guaranteed political process afforded neighbours of CD-1 zoned lands.

Staff do not support the use of such a covenant, and conclude that the only publicly defensible tool for controlling development on a new parcel fronting West 75th Avenue to ensure consistency with use, density, footprint and form of development with the CD-1 lands on both sides of the property is to rezone the land to the same CD-1 district. The CD-1 design guidelines would apply simply by adding the new site to the text.

Why Mr. Weston Opposes Rezoning: Mr. Weston has provided staff with further clarification on why he and his family do not wish to pursue rezoning of the bottom portion of their property at this time. These reasons are:

1. They don't want to have to figure out what they might want to build in the future -two houses or three, or what kind of footprint.

2. They don't wish to develop at this time.

3. They believe rezoning will create costs and increased taxes which are appropriate if the land is to be developed, but are not appropriate now.

4. They believe it is not in anyone's interest "to require a rezoning that for present purposes is an empty exercise and may not have any future value".

Comments of the Approving Officer: In his report dated May 2, 2000, the Subdivision Approving Officer put forward for consideration the option of a Subdivision By-law amendment (as an alternative to rezoning) in response to Council's 1986 decision to exclude this site's "bottom lands" from the CD-1 rezoning then being advanced on adjoining lands. That decision left the site's "bottom lands" zoned RA-1, as an expression of zoning that reflected the public interest as determined by Council.

In the Council Committee discussion on May 18, 2000, it became clear that Councillors were concerned about potential impacts resulting from RA-1 development should the Subdivision By-law be amended to permit a new (albeit historical) RA-1 zoned parcel in the midst of a CD-1 zoned residential area. However, Council did not support the alternative option also presented for consideration. Rather, Council instructed staff to explore the possibility of using a covenant to safeguard the adjoining properties against potentially inappropriate development under RA-1.

Based on the reasons outlined in this report against using such a covenant, and the reservations Council has expressed about RA-1 zoning of these bottom lands being in the public interest, the Subdivision Approving Officer would no longer put forward for consideration an amendment to the Subdivision By-law.

If Mr. Weston still wishes to pursue a subdivision he should re-submit his application to rezone the "bottom lands" to CD-1. If the application is approved, the Subdivision Approving Officer has confirmed that he would consider approval of the subdivision application without the need for a Subdivision By-law amendment.

CONCLUSION

Planning staff, in consultation with the Director of Legal Services, have reviewed Mr. Weston's suggestion of a restrictive covenant to restrict RA-1 development potential which would be created if Council approved an amendment to the Subdivision By-law to enable subdivision of 1850 Southwest Marine Drive. While it is technically possible to develop such a covenant, staff recommend against this approach for precedent-setting, ascertainability, public process, staff time, cost recovery and form of development approval reasons.

The Director of Current Planning and the Subdivision Approving Officer further recommend that the Subdivision By-law not be amended to permit the subdivision of 1850 Southwest Marine Drive to recreate a developable RA-1 zoned parcel. It is also recommended that Council should advise Mr. Weston that if he wishes to continue to pursue a subdivision that he should re-submit his CD-1 rezoning application for this site which, if approved, would permit the subdivision consideration without the need for a Subdivision By-law amendment

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APPENDIX A

Planning and Environment Minutes - May 18, 2000

5. Proposed Amendment to Subdivision By-law No. 5208 File: 5302-113

(Councilor Bass not present for the vote)

ADMINISTRATIVE REPORT

TO:

Standing Committee on Planning and Environment

FROM:

Subdivision Approving Officer in consultation with the Director of Current Planning

SUBJECT:

Proposed Amendment to Subdivision By-law No. 5208 Affecting Lands in the RA-1 Zone

 

CONSIDERATION

A. THAT Section 4.5 of Subdivision By-law No. 5208 be amended, generally as contained in Appendix A, to permit a resubdivision of land in the RA-1 zone where it is solely for the purpose of recreating a historic subdivision pattern; and

OR

B. THAT no action be taken to amend Section 4.5 of the Subdivision By-law; and

GENERAL MANAGER'S COMMENTS

COUNCIL POLICY

· There is no Council policy directly related to the matter of amendments to the Subdivision By-law.

· Southlands Plan, adopted March 8, 1988.

· CD-1 By-law No. 6063 for the Angus West Lands, enacted on November 4, 1986.

· Angus West Design Guidelines, adopted November 4, 1986.

PURPOSE

This report seeks Council's direction regarding a request from a property owner for an amendment to Subdivision By-law No. 5208. The proposed amendment would enable the Subdivision Approving Officer to consider a subdivision proposal for the site at 1850 SW Marine Drive (Lot C, Block 15, D.L. 317, Plan 5726), which does not meet today's Subdivision By-law standards, to recreate a previously-existing subdivision pattern.

The request has raised issues regarding the appropriateness of the form of development that would result on the RA-1 zoned portion of the land in question, should a subdivision be approved, given the context of the adjacent development under CD-1 zoning.

BACKGROUND AND CONTEXT

The RA-1 lands are generally located below the SW Marine Drive escarpment, in the south portion of both the Dunbar-Southlands and Kerrisdale neighbourhoods and comprise part of the Musqueam Lands, a large part of the Southlands neighbourhood, several golf courses, and the Fraser River Park, south of West 75th Avenue at Angus Drive.

In the RA-1 Limited Agricultural zone, the Subdivision By-law requires that each parcel created have a minimum width of 30.480 m (100.00 ft.) and a minimum area of 0.910 ha (2.25 ac.). The Subdivision By-law does not currently contain any discretion for the Approving Officer to relax those minimum standards.

The site in question is a single parcel of land which extends from Marine Drive south to West 75th Avenue. Lot C is split-zoned, with the upland portion being RS-1 One-Family Dwelling District and the lowland portion being RA-1 Limited Agricultural District. The location of the site is shown in Figure 1, below.

Figure 1

Lot C was created through registration of a plan of consolidation in 1974. Previously, it had been two separate parcels, created on the original plan of subdivision of the surrounding lands, in 1926. The zoning boundary between the RS-1 and RA-1 lands follows the original property line location. The owner has indicated that the former parcels were consolidated into Lot C in order to facilitate the development of an extensive landscaping project.

Legal consolidation was not required to carry out the landscaping project. Site consolidation was not a "prior-to" condition of any permit approval granted, as no permits were sought, or needed, to do this work. The landscaping has long since been removed and the RA-1 portion of the site has been filled and is vacant.

The lowland portion of the site is flanked on two sides by lands zoned CD-1 Comprehensive Development District which are commonly referred to as the "Angus West Lands". The rezoning of the lands extending from the Arbutus Street alignment on the west to Angus Drive on the east, from RA-1 to CD-1, occurred in 1986. All of the sites involved in that rezoning have been built-out in accordance with the Council-adopted design guidelines with one-family dwellings on bare land strata lots.

Although Lot C was not included in the original Angus West Lands rezoning application, staff were directed to apply to rezone the property to the same CD-1 to ensure the consistency of future development. At the Public Hearing, however, the owner (Mrs. Isabel Weston) asked not to be included in the CD-1 and Council agreed to exclude her property, leaving it zoned RA-1.

Notwithstanding the exclusion of her site, the conditions which Council established at the time of the rezoning required that the Approving Officer make provision for access to be provided to Lot C, through the adjacent lands, as a condition of approval of the subsequent bare land strata plans for each adjacent site, in order to ensure that a satisfactory form of development (i.e., potentially three one-family dwellings on bare land strata lots) could be achieved, if the Weston's decided to pursue a rezoning in the future.

CURRENT APPLICATIONS

In July 1999, following several meetings with staff, the owner's son Mr. John Weston, submitted applications to:

1. subdivide the site into two parcels along the zoning boundary; and
2. rezone the RA-1 zoned portion of Lot C to CD-1 Comprehensive Development District to be consistent with the flanking lands (necessitating exclusion of the site from the Agricultural Land Reserve).

Shortly thereafter, he requested that the rezoning application be placed "on hold" pending further discussions with his family as to how they wished to proceed. Mr. Weston subsequently indicated that he intends only to proceed with the subdivision at this time. It is his mother's intent to retain both parcels for the immediate future, but to be able to market her home on the upland parcel separately, once she is no longer able to care for it. The lowland parcel would be retained for future development, likely by family members, with or without rezoning.

The proposed subdivision is not approvable. While the proposed upland parcel would comply with the Subdivision By-law requirements for the RS-1 District in this area, the proposed lowland parcel would maintain an area of only 0.330 ha (0.82 ac.), as compared to the 0.910 ha (2.25 ac.) which is required for parcels created in the RA-1 District. Rather than pursuing rezoning, Mr. Weston has requested that an amendment to the Subdivision By-law be considered, to enable him to subdivide to recreate the previously-existing subdivision pattern.

PROPOSED SUBDIVISION BY-LAW AMENDMENT

Staff have identified only one possible amendment to the Subdivision By-law which could accommodate the subdivision as proposed, while not opening the door to unacceptable subdivision applications throughout the RA-1 district.

Section 4.5, which currently contains three specific instances where the Approving Officer may relax the minimum standards of the By-law, would be the appropriate location for an amendment. The possible amendment, as outlined in Appendix A, would allow consideration of a subdivision in the RA-1 zone where it is solely for the purpose of recreating a portion of a formerly existing subdivision pattern.

ANALYSIS

The amendment as described would have extremely limited applicability. While there have been many subdivisions over the years in the Southlands RA-1 neighbourhood to create smaller parcels, combining parcels to achieve larger development sites has not occurred with the same frequency. Only one other site in the RA-1 district has been identified as being created by consolidation. Therefore, this amendment would not result in an unacceptable level of opportunity for subdivision being provided throughout the RA-1 district.

The possibility that subdivision may occur without an accompanying rezoning to ensure that the form of development is in character with the surrounding Angus West Lands has, however, raised concern.

Under the current split-zoning situation, the lowland portion of the site has very limited development potential since it must be considered in the context of the one-family dwelling and accessory buildings which are located on the upland (RS-1) portion of the site.

If subdivision occurs, however, the lowland portion of the site could be developed with a variety of uses under the "conditional" approval use provisions of the RA-1 District Schedule. Such uses include:

· a One-Family Dwelling (with no applicable guidelines);
· a Special Needs Residential Facility - Community Care - Class A or Class B;
· a Nursery, Field Crop or Fruit Farm;
· a Greenhouse or Stable;
· a Retail Store in conjunction with a Greenhouse or a Stable;
· Bed and Breakfast accommodation; or
· other uses not consistent with the adjacent CD-1 zoning.

COMMENTS OF THE DIRECTOR OF CURRENT PLANNING

The Director of Current Planning has significant concerns about Lot C being subdivided to create a separate, developable parcel under the existing RA-1 zoning and suggests that Council should take no action to amend the Subdivision By-law, but rather should encourage Mr. Weston to re-activate the rezoning application which, if approved, would also permit subdivision of the property, allowing his mother to sell the remaining RS-1 parcel independently. There would be no need to develop the CD-1 zoned property right away.

The rezoning application which was submitted in 1999 has not been circulated for review, nor has there been neighbourhood notification or a rezoning sign placed on the site, as the application was put "on hold" by Mr. Weston shortly after it was submitted. Should the application be re-activated, Rezoning Centre staff would likely support it, as it would bring the property into conformance with its neighbours. A supportable form of development would likely be three one-family dwellings, designed and landscaped in accordance with the guidelines. No change to the guidelines would be needed.

CONCLUSION

In other zoning districts in the City, the Subdivision By-law provides the Approving Officer with the discretion to relax minimum parcel size standards where the purpose of the subdivision is to recreate a previously-existing subdivision pattern, where the parcels created would be consistent with the other parcels in the "blockface". That discretion does not extend to the RA-1 zone.

The proposed subdivision of the property at 1850 SW Marine Drive would recreate the original subdivision pattern which preceded the creation of Lot C. The immediately adjacent sites, although now each containing three bare land strata lots, are also remnants of the original subdivision pattern and are similar in size to the parcel proposed. For this reason, Council may consider that it is reasonable to support an amendment to the By-law to allow the subdivision to be approved.

However, as a result of the CD-1 zoning of the adjacent lands, the form of development which would result on the new RA-1 parcel could be out of keeping with the immediately adjacent and surrounding form of development. For this reason, Council is also asked, as an alternative, whether they wish to advise Mr. Weston that a Subdivision By-law amendment is not acceptable and suggest that he re-activate his application to rezone the land to CD-1 which could permit a subdivision but would also ensure appropriate and consistent development on the land.

PROPOSED AMENDMENTS TO SECTION 4.5
(additions in bold italics)

4.5 Notwithstanding the provisions of Section 4.3, the Approving Officer may approve an application for subdivision which does not comply with a requirement of this By-law where in his opinion:

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