Vancouver City Council |
ADMINISTRATIVE REPORT
Date: October 7, 2003
Author/Local: M. Thomson/7328Dept. File No. 000 050
RTS No. 03632
CC File No.5753
Meeting Date: November 4, 2003
TO:
Vancouver City Council
FROM:
General Manager of Engineering Services in Consultation with the Director of Real Estate Services, the Director of Current Planning, and the Director of Legal Services
SUBJECT:
Proposed Closure and Lease of a Portion of East 44th Avenue, East of Wales Street
RECOMMENDATION
A. THAT Council close, stop-up and lease all that portion of the north side of East 44th Avenue, east of Wales Street, the same as shown within the heavy outline on the plan attached hereto as Appendix "B", to the owner of the adjacent lands, being proposed Lot 4, Block 1, District Lot 50, Plan BCP ________, subject to the conditions contained in Appendix "C".
B. THAT Council authorize the Director of Legal Services to sign, on behalf of the City, a Reference Plan of survey to be prepared, and to make application in the Land Title Office to raise title to the portion of East 44th Avenue shown within the heavy outline on the plan attached hereto as Appendix "B".
C. THAT no legal rights shall arise and no consents, or permissions, are granted hereby and none shall arise or be granted hereafter, unless and until all contemplated legal documentation has been executed, delivered by all parties, and where applicable, registered in the Land Title Office.
D. THAT once the form of all legal documentation and plans has been approved by the General Manager of Engineering Services and the Director of Legal Services, that the Director of Legal Services be authorized to execute and deliver such documentation and plans to the appropriate parties on behalf of the City.
E. THAT the Director of Legal Services in consultation with the General Manager of Engineering Services, be authorized to enter into an Encroachment Agreement, rather than a Lease or substitute one for the other at any time, on the same general terms and conditions, should an Encroachment Agreement be acceptable to an owner of proposed Lot 4.
COUNCIL POLICY
The authority for closing and disposing of streets and lanes is set out in the Vancouver Charter.
Council policy is to protect as many buildings on the Heritage Register as possible.
SUMMARY
On November 20, 2003, at Public Hearing, Council will be asked to authorize the Director of Legal Services to enter into a Heritage Revitalization Agreement (the "HRA") and Designation Bylaw for the heritage building at 5872 Wales Street, with various terms and conditions.
The HRA, if approved in principle, is to include provisions to situate the heritage building on both proposed Lot 4 and on a portion of East 44th Avenue. The portion of the heritage building to be located on East 44th Avenue is to be secured through a 200-year lease as described in Recommendation A and on the terms and conditions contained in Appendix "C". The General Manager of Engineering Services and the Director of Current Planning support this solution to create an economically attractive scenario to retain the heritage building.
PURPOSE
This report seeks the formal authorities to raise a title for an approximate 23.4-foot portion of East 44th Avenue to contain a portion of the heritage building, and to close, stop-up and lease the said portion of East 44th Avenue.
BACKGROUND
Since September of 2000 staff have been working to achieve a solution to satisfy the City's objective of retaining the Heritage "A" building at 5872 Wales Street. The heritage building currently sits in the middle of the property, legally described as The West ½ of Lot 2, except part in Plan 12968, Block 1, District Lot 50, Plan 1375.
A number of subdivision scenarios were examined over an 18-month period. Staff and the applicant have settled on, and the Approving Officer has granted preliminary approval for, a configuration generally as shown in Appendix "A".
The proposal creates six parcels, each 33 feet wide, with four lots fronting Wales Street and two lots fronting East 44th Avenue. A standard 20-foot wide lane, from the lane north of East 44th Avenue, to East 44th Avenue will be dedicated west of proposed Lot 5, thereby providing secondary access to the four lots fronting Wales Street. The north-south lane will be offset approximately six feet west of the existing north-south lane in the north half of the block. This offset has been carefully reviewed by Engineering Services and is supportable.
A 33-foot wide dedication will occur in front of proposed Lots 5 and 6 for widening of East 44th Avenue from 33 feet to the standard 66 foot width for a residential street.
Under all but the rarest of circumstances the General Manager of Engineering Services would seek a 33-foot dedication for widening of East 44th Avenue from the new north-south lane to Wales Street.
The circumstances related to the saving of the heritage building, and most specifically the economic analysis have led the General Manager of Engineering Services to conclude that a dedication of somewhat less than 33 feet is supportable, in this instance.
The General Manager of Engineering Services has concluded that a dedication of approximately 26.4 feet adjacent to proposed Lot 4 is supportable as described herein.
DISCUSSION
The West ½ of Lot 2 has a frontage of approximately 158.5 feet along Wales Street. The economic proforma, as more particularly described in the forthcoming HRA report, concluded that 33-foot wide lots fronting Wales Street were required to create the appropriate balance of incentive, costs and risks to save the heritage building.
The portion of the West ½ of Lot 2 adjacent to proposed Lot 4 identified for widening of East 44th Avenue contains several large specimen trees. An arborist's report identified certain trees as worthy of addition to the Vancouver Heritage Register's Landscape resource list. They are a Beech and two Douglas Firs with trunk diameters of between 1.6 and 3 feet.
These trees are in good health, and with basic maintenance, could survive for many years. City staff support the retention of the trees.
A number of years ago, the General Manager of Engineering Services determined that regardless of the timing of subdivision of the West ½ of Lot 2, the trees would not be removed to build asphalt, curb and gutter.
The position and health of the trees leads to the conclusion that an expanded East 44th Avenue between Wales Street and the new lane outlet would not be constructed as a "standard" City road for many years.
Securing the dedication is, however, critical. A 3-foot wide portion of the area can be used for other ancillary purposes, such as the installation of City and public utilities, a sidewalk or walkway that respects the trees. Further, the corner of Wales Street and East 44th Avenue has been identified as a critical location as part of the future Eastside Crescent, the next City Greenway, currently in the planning stages.
When all the factors critical to the objectives of protecting and saving the heritage building and the long-standing public policy requirements of lands to be subdivided to provide adequate street and lane networks are balanced, the General Manager of Engineering Services and the Director of Current Planning have concluded the dedication of an approximate 26.4-foot-wide portion of the West ½ of Lot 2 for widening of East 44th Avenue is supportable.
As a result of the specimen trees within the 26.4-foot wide strip of road, it will be many years before a standard City street could be built. Therefore and in accordance with the applicant's request, it is reasonable to allow the heritage building to be moved onto proposed Lot 4 and located as to encroach onto a portion of the area to be dedicated as street. At 43 feet wide and allowing for typical side yards, the heritage building will encroach onto the 26.4 foot-wide strip of road 13 to 16 feet. Including a southerly side yard, the heritage house "lot" will occupy approximately 23.4 feet of the 26.4-foot wide strip.
Staff believe this is a reasonable compromise and staff and the applicant have agreed to this approach.
The challenge is how to secure certainty for future buyers around the City continuing to allow the encroaching heritage building. While most staff felt a modified Encroachment Agreement was the best solution, the applicant's consultants expressed concern with this approach.
Staff and the applicant have agreed that a lease is acceptable, as it is understood by the marketplace and can be used to obtain financing.
A lease provides exclusive possession to the lessee and will leave maintenance, and liability with the lessee. The specimen trees become the responsibility of the lessee.
As the West ½ of Lot 2 is the source of the road dedication to be encroached upon, staff are recommending the lease at a nominal fee ($5 per annum) pre-paid for the term. This has been factored into the financial analysis.
While the preference is to create a direct link to the HRA through the lease, to be valid a lease must have a fixed term. Staff and the applicant have settled on 200 years as reasonable, noting that should the HRA be terminated and/or the heritage building not be maintained or properly restored per the contemplated HRA, the City can terminate the lease.
The procedure to create a marketable lease is:
a. the subdivision plan is approved by the Approving Officer and registered in the Land Title Office, thereby securing the long term street and lane needs of the City;
b. the Director of Legal Services makes application to the Land Title Office to raise title to the portion of East 44th Avenue to be leased (approximately 23.4 feet);
c. Council approves the closure and lease of the then titled portion of East 44th Avenue;
d. the lease is registered as a charge against the title to the (closed) portion of East 44th Avenue.
The lease terms restrict permanent structures other than the heritage dwelling within the lease area. Temporary structures such as fences, pergolas, gazebos, patios, and garden sheds are anticipated, and will be subject to the approval of the General Manager of Engineering Services. A small garage would also be deemed acceptable, subject to a crossing application.
The lease area will generally operate as if it were a private yard, subject only to the City's rights as specified in the lease.
Recommendation E is provided so that once a buyer for the heritage dwelling is identified, the alternative of an Encroachment Agreement, in lieu of the lease, is available. The advantage of an Encroachment Agreement is that no term is required. Termination provisions could be linked specifically to the HRA.
CONCLUSION
The General Manager of Engineering Services, in consultation with Director of Current Planning, the Director of Real Estate Services and the Director of Legal Services, recommends approval of Recommendations A to E, including the terms and conditions as contained in Appendix "C" so as to achieve the City objectives of preservation of the heritage dwelling at 5872 Wales Street and the securing of long term City street and lane needs. Council authority to close, stop-up and lease a portion of East 44th Avenue as shown in heavy outline on Appendix B is recommended subject to the conditions described herein.
- - - - -
APPENDIX C
The lease to be drawn on the following general terms and conditions:
a. the lease to require Council approval of a Heritage Revitalization Agreement (the "HRA"), (and subsequent completion of the agreement by the owner) including provision for the moving of the dwelling onto proposed Lot 4 and the area to be dedicated road;
b. the encroachment of the dwelling onto the dedicated road to be absolutely minimized. The final location of the dwelling to be subject to the approval of the General Manager of Engineering Services;
c. the term of the lease to be 200 years;
d. the lease may be registered in the Land Title Office, subject to Council approving the "raising" of title to the portion of closed road;
e. the rent to be a nominal $5 per year, pre-paid for the 200-year term. The lessee to be responsible for taxes, or if the land is exempt, then additional rent equal to annual taxes which would otherwise be levied;
f. the applicant to be responsible for all plans, documents and Land Title Office fees required to create and register the lease;
g. the City of Vancouver (COV) reserves a statutory right-of-way to install, remove, maintain, replace, repair, and use all manner of public utilities, including those not operated by the City of Vancouver itself over the south five feet of the lease area (the "Right-of-Way Area"). (See Appendix "D") The Right-of-Way to only be operable once the three specimen trees in the lease area have died;
h. the COV said Right-of-Way to include the right to install and use a public walkway within the Right-of-Way Area, once the three specimen trees in the lease area have died;
i. the lease area to be used for the maintenance and occupation of the heritage dwelling, subject to the COV rights. Use of the adjacent outdoor areas shall be subject to the approval of the General Manager of Engineering Services;
j. there are to be no permanent structures within the lease area, other than the Heritage dwelling. Any temporary structures including a boundary fence, pergolas, gazebos, garages, patios and garden sheds, shall be to the satisfaction of and will require the written approval of the General Manager of Engineering Services;
k. the lessee is to be responsible for maintenance of the lease area, including drainage,to the satisfaction of the General Manager of Engineering Services;
l. the lessee to be responsible for all existing trees within the lease area;
m. the lessee is responsible for keeping the structure of the heritage building in good repair and the exterior in good appearance and good repair in a manner consistent with the Heritage Revitalization Agreement;
n. if all or any of the heritage building on the leased premises or on the adjacent parcel is damaged or destroyed and not restored within five years, COV has the absolute right to terminate the lease on 30 days notice;
o. if the Heritage Revitalization Agreement (HRA) on the adjacent Lot 4 is terminated for any reason, then the lease on the road dedication is terminated;
p. when ownership of the adjacent Lot 4 changes, the lease must be assigned to the new owners. The occupiers of the area of road dedication must be the same parties who occupy the adjacent heritage parcel;
q. upon expiry or termination of the lease, the lessee is to be responsible for restoration of the lease area to the satisfaction of the General Manager of Engineering Services;
r. the lessee to assume full responsibility for liabilities, loss and damages from their occupancy or use of the lease area, and to insure the proposed lease area to the satisfaction of the Director of Risk and Emergency Management;
s. such additional terms and conditions as required to address the requirements of the Vancouver Building Bylaw, including a release and indemnification given by the owner of proposed Lot 4 and registered against the title to proposed Lot 4;
t. the owner of the road parcel (the COV) shall grant the City as municipality a covenant which requires the following action immediately upon expiry or termination of the lease: (a) complete removal of the encroachment by demolition or relocation or (b) establishment of the road parcel as street and the registration of a street encroachment agreement covering the encroachment. This covenant to not be released without the approval of the Approving Officer;
u. the lease agreement to be to the satisfaction of the Director of Legal Services, the Director of Real Estate Services and the General Manager of Engineering Services, and to contain other terms and conditions as considered reasonable and necessary by the Director of Legal Services.
* * * * *