SUPPORTS ITEM NO. 4 P&E COMMITTEE AGENDA JUNE 29, 1995 POLICY REPORT BUILDING AND DEVELOPMENT Date: May 2, 1995 Dept. File No: STRATHE2.PR TO: Standing Committee on Planning & Environment FROM: City Building Inspector, in consultation with the Associate Director of Planning - Land Use and Development (Subdivision Approving Officer) SUBJECT: Building By-law Amendments to Exempt Strata Title Compliance for Some Heritage Buildings RECOMMENDATION A. THAT the Building By-law not be amended to exempt an existing heritage one-family dwelling from life-safety upgrading through the use of residential sprinklers when it is not otherwise being altered, but seeking strata title conversion to separate the heritage dwelling and infill development on the site. B. THAT in calculating an equitable heritage bonus for development proposals involving conservation of heritage buildings and for which designation or protection of the building through a heritage revitalization agreement will be required as a condition of approval, staff include in the calculation the cost of sprinklering and other requisite upgrading as might be anticipated in future strata titling of the premises. C. THAT in the case of the heritage building with infill development proposal approved at 2005 West 16th Avenue, being a corner site, the applicant be encouraged to enter into a heritage revitalization agreement through which Council may vary the Subdivision By-law to permit consideration of a fee simple site subdivision by the Approving Officer as opposed to strata titling of the premises. GENERAL MANAGER'S COMMENTS The General Manager of Community Services RECOMMENDS approval of A, B and C. COUNCIL POLICY The Condominium Act mandates that Council, as Approving Authority, require a building being converted to strata lots first be upgraded in order to "substantially comply" with municipal by-laws, with particular regard to building regulations. This obligation includes a one-family dwelling being converted to a strata lot when stratification is proposed to deal with an infill development on the same site. BACKGROUND - 2 - On February 24, 1994 the Standing Committee on Planning and Environment considered a report regarding a heritage retention and strata title conversion proposal at 2005 West 16th Avenue and the owner's request to exempt the heritage building from the sprinklering requirements. In considering the report, Council approved the following recommendation: "C. THAT staff report back on possible amendments to the Building By-law to exempt heritage buildings from the sprinklering requirement in situations limited to infill proposals on sites occupied by single-family heritage dwellings." DISCUSSION During the past few months, staff have reviewed: - their interpretation of intent of the Condominium Act; - what "substantial compliance" with the Building By-law reasonably implies; and - what options are available to Council should it wish to avoid life-safety upgrading as an unnecessary imposition on a heritage one-family dwelling not otherwise being altered. The Requirements for Substantial Compliance The Condominium Act deals with strata title approval, including existing buildings, and states: "9.(1) On the conversion into strata lots of a previously occupied building by an owner developer, the approving authority may approve the strata plan, refuse to approve the strata plan or refuse to approve the strata plan until terms and conditions imposed by the approving authority are met. "9.(2) The approving authority shall not approve the conversion unless the building substantially complies with the applicable by- laws of the municipality...." (emphasis added). The Subdivision Approving Officer has also previously advised that strata titling is a form of tenure preferred by the market in order to create separate ownership for an infill building and a remaining principal dwelling. Fee simple subdivision of these sites is virtually impossible in all but a very few cases. Typical Areas of Fire Safety Deficiencies in Older Dwellings A study of fires in older buildings indicates that most single-family dwellings in our city were designed with a high fire-risk style of construction, known as "balloon-framing". This entails a framing system with extra-long wood studs continuous from basement to attic, clad both sides with wood-lath strips for plastering, and with no firestopping at floor, ceiling or wall lines. These stud and joist spaces were intentionally kept wide open, to provide continuous ventilation and prevent dampness throughout the framing members, both to inhibit the growth of fungus. These spaces also facilitated the installation of plumbing and electrical wiring. Unfortunately, the "free air space" within the walls in this form of construction became the principal reason for the spread of fires in dwellings. As a result of thousands of fires starting and spreading throughout these highly combustible spaces, balloon framing is no longer permitted anywhere within North America, having been replaced with firestopped - 3 - framing methods. Many other changes were also made to building codes in order to minimize potential fire deaths: - new types of exterior cladding and roofing materials have been designed to resist conflagration and fire spreading to neighbouring buildings; - new interior finishes have been restricted to those which resist flashover during fires; and - most of the wood-panelled interior finishes would not be permitted in new homes today without sprinklers. In addition: - modern electrical wiring methodology has been substantially improved to cut down on potential electrical fires starting within the stud spaces; - "hard-wired" smoke alarms have been required for the last 17 years for residential-type buildings to try to warn their occupants during those times when no one in the dwelling unit would otherwise be aware of incipient fires. However, smoke alarms neither contain nor put out fires; and - currently within new dwellings, extra means of egress, balconies, or decks are now required to come within six metres of ground level and the overall height of wood frame construction has been restricted, to permit safe egress from the uppermost floors. One of the remaining areas of concern is access for rescue work or fire fighting from the fronting street, around or by the principal building, to a rear infill unit(s). This access for fire fighters or stretchers is inhibited in many cases due to narrow sideyards beside buildings that are not fire-protected. This restricted access can be offset by good fire suppression from sprinklers in the principal building at the front of the infill site, in order to carry out the rescue work of other, potentially incapacitated, occupants around or past this building, if it were involved in a fire incident. The New Sprinkler Technology The installation of quick-response sprinklering - developed in the early 1980s - has become the only way to (virtually) assure life-safety in dwellings of all ages. To date, no fire deaths have occurred in any of the estimated 15 million dwellings constructed throughout North America that have been equipped with these residential sprinkler systems. Staff concluded there was no other equivalency to residential sprinklers for the life-safety deficiencies that occur most frequently in single-family dwellings, which is where most of the fire tragedies occur. Over 50% of the recorded fire deaths in single-family dwellings involve senior citizens, young children and persons with disabilities. The above are typical of the range of problems considered by Council before it decided to amend the Building By-law in 1990 to mandate residential sprinklers. Their excellent success rate has also raised the fire protection engineers' comfort levels when considering them as equivalencies for many fire and life-safety deficiencies. No other methodology would come close to residential sprinklering in providing the same degree of life-safety within any of these dwellings. Current Practice During the past five years there were 10 similar proposals for strata title conversion of properties containing an older one-family dwelling - 4 - and a new infill dwelling. Of this number, three involved dwellings of heritage quality. Except for one, which preceded the sprinkler amendment of April 1990, all 10 were sprinklered and upgraded internally for their life-safety deficiencies in order that the buildings "substantially comply" with the Building By-law, as required by the Condominium Act (See Appendix A). In reviewing the major deficiencies of the older one-family dwellings in these projects, sprinklering was the only methodology that could provide a sufficient level of life- safety, relative to full Building By-law compliance. Staff also reviewed previous proposals for upgrading of heritage buildings of many different uses over the years and determined that the majority have taken advantage of the sprinklering alternative to increase their life-safety to overcome most deficiencies of the Building By-law. In case of fire, sprinklering certainly improves the chances that such heritage buildings will survive for future generations to view and enjoy. In fact, even with the installation of sprinklers, many of these buildings also maintained high quality finishes within their interior. The Council Chamber itself is a good example of the delicate and unobtrusive placing of sprinklers, as is the Orpheum Theatre. The City Building Inspector believes that the appropriate time to carry out required life-safety upgrading is when the owner is in receipt of funding made possible because of Council's support for a heritage- related density increase and extra buildable equity. Heritage designation should only be given to a deserving building that our citizens expect to remain forever; designation should not be given lightly nor should the owner expect to reap financial gains without assuring its lasting retention. Consequently, monies spent on such projects should give priority investment to life-safety upgrading of the existing building, not just cosmetic renovations. Because of his concerns for life-safety and the fact that sprinklering will substantially increase the chances of the heritage building surviving a fire, the City Building Inspector is recommending A and B. COMMENTS from the PLANNING DEPARTMENT Before considering the pros and cons of various options, the "facts", as we understand them, should be noted: "Facts" 1. Before Council (as Approving Authority) approves the conversion of a previously occupied building into strata lots, the Condominium Act mandates that the building substantially comply with municipal by-laws, with particular attention to building regulations; 2. A building to be converted to a single strata lot (such as an existing one-family dwelling, with a new infill dwelling to be a separate strata lot) is, under the Interpretation Act, a building subject to the upgrading requirements of the Condominium Act; 3. The City Building Inspector has determined that sprinklering of the existing building will bring it into substantial compliance with the life-safety requirements of the Building By-law; 4. Upgrading of an unrenovated existing one-family dwelling would not be required if the new infill dwelling was left as a rental unit, under the same ownership as the one-family dwelling; 5. Strata titling of the property (i.e., the existing dwelling and the infill dwelling as separate strata lots) increases the value of the infill dwelling; - 5 - 6. Infill dwelling development will be less attractive to the owner of a heritage dwelling if it cannot be strata titled (or subdivided) and sold, and may be an insufficient incentive for retention and restoration of the heritage dwelling, thus increasing the vulnerability of many heritage dwellings to possible demolition; and 7. The upgrading requirement of the Condominium Act can be overcome in two possible ways: (a) through Building By-law amendment; or (b) through a Heritage Revitalization Agreement (under recent heritage legislation) that would allow subdivision of corner parcels as opposed to creation of strata lots. Based on the foregoing, three apparent options are available: Option 1 - Require sprinklering of the heritage one-family dwelling as a condition of final strata approval, per the Condominium Act. The advantages of this option are: - it satisfies the requirements of current legislation; - the heritage dwelling is improved in terms of occupant life- safety; - the longevity of the heritage building is enhanced insofar as possible destruction by fire; and - emergency personnel can more safely access the rear, infill dwelling and its occupants in the event of a fire in the heritage dwelling. The disadvantages of this option are: - it requires upgrading of the heritage dwelling, at cost and inconvenience to its owner noting that it is often difficult and costly to retrofit a heritage building and that important interior surfaces and features may be altered; - required life-safety upgrading, if "essential" for the sake of the building's occupants, should be mandated retroactively on City-wide basis, irrespective of an application initiated solely to enable sale of the new infill dwelling; and - upgrading required for strata title approval may, for financial, aesthetic or other reasons, result in the heritage building owner's decision to abandon development of the infill dwelling, leaving the heritage building at greater risk of future demolition. However, the financial concern can be addressed by calculating the compensatory heritage density bonus in a manner that includes consideration of the cost of sprinklering and other requisite upgrading as might be anticipated in future strata titling. Option 2 - Amend the Building By-law to exempt from sprinklering an existing heritage dwelling on a corner site, which is otherwise not being altered but which is proposed for strata title conversion to separate it from an infill dwelling. The advantages of this option are: - 6 - - it recognizes that development of a rear yard infill dwelling on a corner site can be more readily accessed by emergency personnel in the event of a fire in the principal dwelling, than can a rear yard infill dwelling on an interior site; and - the existing dwelling would, by virtue of the Building By-law exemption, substantially comply with the by-law without having to be upgraded, thus facilitating approval of the strata title application. The disadvantages of this option are: - it would create a unique exemption in the Building By-law to circumvent the intent of the Condominium Act, which seeks to ensure that every strata lot created through conversion of a previously occupied building, will contain a unit which, at the time of strata approval, substantially complies with the prevailing municipal by-laws. This provincial objective of providing a degree of consumer protection for strata lot purchasers, will be sacrificed through this approval. However, staff note there is no similar consumer protection provided to purchasers of existing one-family dwellings or any other building located on its own site; and - the City foregoes the opportunity to improve the life-safety of an existing heritage dwelling, increasing the future risk to both occupants and the building. Option 3 - Suggest that owners of heritage buildings on corner sites wishing to sell the rear yard infill dwelling be directed to pursue the option of a Heritage Revitalization Agreement (HRA), through which the site might be subdivided as opposed to strata titled. The advantages of this option are: - under recent heritage legislation, Council may enter into a HRA with the owner of a heritage building. The provisions of this agreement may vary zoning and/or subdivision by-law regulations that would otherwise apply; - the upgrading requirement imposed by the Condominium Act is avoided since creation of separate legal parcels through subdivision is pursued, rather than creation of strata lots; and - if subdivision is approved, the heritage dwelling and the infill dwelling can be sold independently with no legal interrelationship, unlike a strata lot which remains as part of a strata corporation with attendant responsibilities. The disadvantages of this option are: - the subdivision of a corner site, if approved, would create two substandard parcels in both area and depth, and the new corner parcel would lack secondary access to the rear lane; - the subdivision, if approved, would create two legal parcels that would remain indefinitely, long after the heritage dwelling and the infill dwelling have been demolished. For all intents and purposes the subdivision would be permanent whereas the Condominium Act addresses the demise of a strata plan; and - each of the proposed parcels created through subdivision in - 7 - this manner would be regulated by the zoning provisions in effect at the time of redevelopment (i.e., if two-family dwelling is an outright permitted use, each parcel could be developed as such), except as may be provided for in the HRA (with respect to the replication of a heritage building or the replacement of the infill building). COMMENTS FROM THE DIRECTOR OF LEGAL SERVICES The Director of Legal Services is concerned that Council's policy of requiring sprinklers as a life-safety measure not be compromised by exempting certain residential buildings, thereby placing its occupants at a potentially greater risk. In these terms, there does not appear to be any justification for the exemption alluded to in Recommendation A. CONCLUSION Staff have studied the problem and have found that many outstanding life-safety deficiencies exist within most older existing dwellings, whether "heritage" or not. In addition, many other fire-safety hazards may be created within the same and adjacent properties by these dwellings whenever infill units are constructed. As long as the City is in the position where it cannot approve the conversion unless the building "substantially complies" with the Building By-law, we must enforce the current Building By-law or amend it. However, staff have explored the option of using the Heritage Revitalization Agreement, which has become available through recent heritage legislation and will not require strata titling conditions for an existing Heritage home on a corner site since it may be subdivided off to create two separate parcels. A heritage Revitalization Agreement may be appropriate in this instance to enable consideration of site subdivision (fee simple) as opposed to life-safety upgrading of the principal building required through strata titling (with costs unanticipated by the owner at the outset). However, future infill proposals should be assessed in a fashion that incorporates the costs of life-safety upgrading as would be required upon strata titling, to ensure that the property owner receives infill approval sufficient to compensate for this additional work to the principal building. * * * * *