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                                 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.