P1 POLICY REPORT DEVELOPMENT AND PLANNING Date: November 7, 1996 Dept. File No. FAS TO: Vancouver City Council FROM: Director of Land Use and Development SUBJECT: Pergola at 4208 West 15th Avenue RECOMMENDATION A. THAT the Director of Permits and Licenses be instructed to proceed with enforcement action at 4208 West 15th Avenue, pursuant to the Board of Variance decision of September 18, 1996. As an alternative to the foregoing, the following are submitted for CONSIDERATION B. THAT the Director of Land Use and Development, in consultation with the Director of Community Planning, report back on possible amendments to the Zoning and Development By-law pertaining to fences and other structures in a required yard, in order to allow more development on an outright approval basis if not exempt from development permit requirements; C. AND FURTHER THAT the Director of Permits and Licenses be instructed to withhold enforcement action at 4208 West 15th Avenue pending B above. GENERAL MANAGER'S COMMENTS The General Manager of Community Services RECOMMENDS approval of A. There is no evidence of community consensus seeking more permissive regulations for development in a required yard. Flexibility already exists to permit development in excess of the regulations, through discretionary authority of the Director of Planning. This authority mandates that the concerns of those who may be affected be considered before the discretion is exercised. This process provides for approval of development which the Director of Planning considers "reasonable", and this approval (or refusal) is subject to appeal through the Board of Variance. The pursuit of more permissive "as of right" regulations would require considerable community discussion in search of community consensus prior to preparation of draft regulations for consideration at a Public Hearing. Different neighbourhoods may have different perspectives, suggesting neighbourhood specific regulations. There are much more fundamental planning issues needing staff attention than review of present regulations pertaining to fences and garden furniture. Nonetheless, should Council approve B, C is presented as a further item for CONSIDERATION, noting that a report back per B could take several months and amendments then approved (if any) following Public Hearing may still not permit the structure at 4208 West 15th Avenue. COUNCIL POLICY Council policy is reflected in provisions of the Zoning and Development By-law, a synopsis of which is attached as Appendix A. BACKGROUND Earlier this year, the owners of 4208 West 15th Avenue (the Lefebvres) constructed a retaining wall along the front side of their property to address a slope from their property to their neighbours at 4214 West 15th Avenue (the Dallings). At the request of the Dallings, the wall was constructed to straddle the property line. This retaining wall was part of a plan for extensive front yard landscaping improvements, prepared by a Landscape Architect as a 25th Wedding Anniversary present to the Lefebvres. There is disagreement between the property owners as to the nature of consent given to the Lefebvres by the Dallings to the landscape improvements, specifically regarding a pergola that was subsequently constructed by the Lefebvres. When construction was under way, the Dallings took issue with the pergola, a significant portion of which is situated on top of the retaining wall. Specifically, four groups of four "4 x 4s", approximately eight feet tall, exist on the retaining wall, connected to other similar groupings located about five feet away towards the centre of the Lefebvres' property. As a consequence of the Dalling's concerns, the Lefebvres proposed an alternative that would have resulted in two of the groupings nearest the street lowered, subject to conditions requiring the Dalling's consent. The Dallings could not agree with the conditions attached to the alternative and the Lefebvres proceeded with the construction as originally contemplated. The Dallings complained to the City about the pergola and, following inspection, the Lefebvres were advised that their structure was in contravention of the "outright" regulations governing development in a required yard and that a development application should be submitted seeking approval for the over-height structure through the Director of Planning. The Lefebvres development application was subsequently refused by the Director of Planning on August 15, 1996 taking into consideration the intent of the "outright" regulations, the extent and nature of the overage requested, and the adverse impacts of the structure as expressed by the neighbours (the Dallings), being those most directly affected. Aggrieved by the refusal, the Lefebvres appealed to the Board of Variance. Following review of materials submitted in support of the appeal and a site inspection, on September 18th, the Board heard representations from the Lefebvres, their Landscape Architect, the Dallings and the Director of Planning's representative. The Board, in a unanimous decision, denied the appeal, thereby upholding the Director of Planning's refusal of the development application. Following media attention, the Lefebvres wrote to some members of Council seeking support for amendments to the Zoning and Development By-law regulations which would allow their structure to remain. I discussed this request with Councillor Clarke, who had received a copy of the Lefebvres' letter, and suggested that an attempt be made to reconcile the Lefebvres' and Dalling's differences before proceeding with other options. On October 18th, Council resolved: "THAT Council direct the Director of Permits and Licenses to withhold enforcement to enable staff to have an opportunity to address conflict between the neighbours." On October 21st and 22nd, I met with the Dallings and the Lefebvres, respectively; they had independently agreed to only meet with me separately - an unfortunate reflection of the extent of disagreement that presently exists between them. In my meeting with each party I reviewed the current by-law provisions, including what could be construction "as of right" without development permit. I made it clear that a hedge or similar planting could be installed, without any City approvals, at a density and height in excess of that permitted for structures. I discussed the implications of what is now a jointly-owned retaining wall, and the issues around the pergola vis-a-vis those portions which encroach on the Dalling's property. I also discussed the options which I believe are available to Council in the event that parties could not reach a mutually agreeable solution, and sought an indication from each party as to their willingness to consider modifications to the existing structures that may meet their objectives. DISCUSSION The Lefebvres believe that: - their newly-landscaped front yard, including the pergola as a main feature, is an enhancement benefitting not only themselves but the larger neighbourhood as evidenced by the petition and support by professionals such as Arthur Erickson and Moira Quayle; - they consulted with the Dallings in a very thorough manner prior to commencement, seeking (and they believe obtaining) the Dalling's consent to a sketch plan of the proposed front yard modifications; (The sketch in question is a plan view; no elevations were provided but the Lefebvres believe the details noted conveyed adequate information to indicate the pergola would be of a height that one could walk under.) - their cooperation with and willingness to accommodate the Dallings is evidenced by their agreement to construct the retaining wall straddling the common property line, at the Dalling's request, rather than locating it entirely within their own property; - the compromise they offered when the Dallings objected to the construction in progress contained reasonable conditions based on advice they had received from a lawyer; - even if the earlier conditions were now accepted by the Dallings, the compromise previously proposed is now more than they are prepared to offer; - enforcement action by the City to have the illegal pergola removed will result in a community protest and obstruction of efforts to physically remove the structure; and - property owners should be entitled to construct garden furniture, such as their pergola (albeit not so as to encroach onto a neighbour's property), without having to contend with the interest of a neighbour who may or may not consent. The Dallings believe that: - the sketch of the proposed front yard modifications contained insufficient detail, particularly as to the height of the contemplated structure, to enable them to understand its magnitude and implications; - the compromise proposed by the Lefebvres was in itself acceptable but the conditions attached were not; - the media attention, which they attribute to the Lefebvres, and consequential community involvement, has portrayed them as the "bad guys" and subjected them and their daughter to harassment in spite of the fact that the by-law regulations support their position and they - not others in the neighbourhood - are adversely impacted by the structure immediately adjacent their property; - a compromise, consistent to what had been previously proposed by the Lefebvres but without the attached conditions, may still be acceptable; - further discussions in pursuit of agreement with the Lefebvres should be contingent upon the Lefebvres agreeing to no further media involvement and removal of the entire pergola structure pending mutual agreement on a modified structure; and - City Council should not seek to over-ride the Board of Variance's decision by amending the by-law provisions to allow the illegal structure; the offending structure should be removed through City enforcement of the Board's decision. Although both parties have expressed some willingness to pursue a modified structure, they are still a considerable distance apart from agreement. Unfortunately, I believe that each party's flexibility is now rather narrow as a consequence of events to date. It is unfortunate that events in the last several months have transpired to create the apparently irreconcilable differences that now exist between neighbours who were previously quite neighbourly. Having unsuccessfully pursued a mutually agreeable solution whereby both parties might settle for some - but not all - of what it wants (i.e., a partial win/win), the matter is now reported to Council for decision as to how to proceed. Four options have been identified: 1. Enforce the by-law. 2. Withhold enforcement of the by-law. 3. Amend the by-law. 4. Encourage a new development application with a modification proposal. 1. Enforce the By-law - This option would support the existing by-law, the decision reached on this development application by the Director of Planning and the subsequent decision by the Board of Variance. It would represent a "win" for the Dallings and a "loss" for the Lefebvres. It would support the principle that development in a required yard in excess of what has traditionally been accepted as a property owner's "rights", must be done in a manner that makes peace with the legitimate interests of neighbours who may be adversely affected. If the neighbours cannot agree, the initial decision rests with the Director of Planning. Either party may then appeal this decision to the Board of Variance, having the authority to review the reasonableness of the administrative discretion exercised by the Director of Planning. 2. Withhold By-law Enforcement - Notwithstanding the Board of Variance decision on this matter, Council could choose to withhold enforcement. This would represent a "win" for the Lefebvres and a "loss" for the Dallings. This option is not recommended as it would significantly undermine the Board of Variance and the Zoning and Development By-law. A preferred option, if Council wishes to allow the pergola at 4208 West 15th Avenue to remain, is to amend the by-law regulations. 3. Amend the By-law - The current regulations apply to development in required yards for all properties located in any R- or C-1 zoned district. It is unclear whether the neighbourhood around 4208 West 15th Avenue is in clear agreement that the current regulations should be changed. Less certain is exactly how much they should change if change is in fact desired. There is no certainty that other neighbourhoods would necessarily agree that change is desirable and, if so, to what extent. In addition to community discussion, contemplation of possible amendments would require staff development of alternative regulations for each of the types of structures presently governed, having consideration to what might be more reasonable to allow with respect to height, length/width, location relative to property lines, "solidity" (i.e., a solid:void ratio) and possibly colour. If this option is pursued, there is no guarantee that amending regulations approved (if any) following a Public Hearing would necessarily accommodate the existing pergola at 4208 West 15th Avenue. Staff could undertake this work but it would be at the expense of work on other issues that staff believe are of higher significance, particularly since the current by-law incorporates discretionary authority to allow consideration and approval of development that is not in compliance with the current requirements. Consequently, I do not recommend pursuit of by-law amendments. 4. Development Application with a Modified Proposal - The Lefebvres could submit a development application for a modified structure of their choice, seeking approval by the Director of Planning. If refused, the Board of Variance could again be asked to entertain an appeal and will do so only if, in its opinion, the proposal is materially different from what was previously before the Board. Conversely, if a modified structure was approved by the Director of Planning, the Dallings could appeal this decision to the Board of Variance, seeking to have the decision over-turned. The Lefebvres could pursue this repeatedly, with accompanying development application fees, hoping to ultimately obtain approval and permit issuance. There would, however, be no guarantee of success, the Lefebvres could spend considerable time and money on development applications, and the Dallings and Board of Variance could be consumed with numerous appeals. For these reasons, staff would not recommend this option but it is, nonetheless, available to the Lefebvres. CONCLUSION It is unfortunate that the Lefebvres and Dallings have been unable to reach a neighbourly compromise they can agree upon. Of the options now available, enforcement of the by-law is recommended. * * * APPENDIX A SYNOPSIS OF APPLICABLE ZONING AND DEVELOPMENT BY-LAW PROVISIONS AND ADMINISTRATION Except as specifically permitted in the By-law (or the Parking By-law) no building or development is permitted in a front, side or rear yard that is required. [Section 10.6.1] A fence or similar structure is permitted in a required side or rear yard, or on the boundaries thereof, provided it does not exceed 1.9 m (6.23 ft.) in height. [Section 10.6.3] A fence or similar structure is permitted in a required front yard, or on the boundaries thereof, provided it does not exceed 1.2 m (3.94 ft.) in height. [Section 10.6.4] Height is measured from any point of the ground level of the site at the structure or fence line. [Section 10.6.2] Whether the fence or similar structure is above a common boundary retaining wall, the height otherwise permitted is reduced by one-half of the height of the retaining wall. [Section 10.6.5] A fence or similar structure that is higher than the limitations described above, may be permitted by the Director of Planning but property owners who believe they may be affected are to be notified and their comments considered, before any height relaxation is approved. [Section 10.16.6] For the purpose of the foregoing, "fence" includes arbors, archways, boundary fences, gates, pergolas, screens, trellises, walls and similar structures. [Section 10.16.1] A development permit is not required for a fence or similar structure, provided it complies with the by-law regulations. [Section 5] In practice, very few fences or similar structures that exceed the by-law regulations - and therefore require a development permit - actually have development permits. Inspections staff take action only on the basis of complaint; hence many over-height fences and similar structures are illegal. They remain because neighbours either enjoy them or are not so dissatisfied as to complain. When a complaint is pursued and inspection confirms that the development exceeds the regulations, the owner is advised to file a development application seeking approval under the discretionary authority of the Director of Planning. In processing such an application, immediate neighbours are notified and their comments considered in terms of merit and proximity relative to the site in question. In making a decision on the application, the extent of the height relaxation and the applicant's rationale are also considered. The decision frequently results in an appeal to the Board of Variance.