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.