Lawrence Rieper on the new Zoning Bylaw
Lawrence Rieper: June 27, 2011
NEW DRAFT ZONING BYLAW – REASONS AGAINST
OUTLINE
INTRODUCTION
A CASE IN POINT – WENTWORTH STREET
EXCLUSION OF SINGLE FAMILY AREA OF THE OLD CITY FROM BYLAW
RESTRICTIVE COVENANTS AND FAIR APPLICATION OF THE BYLAW
QUESTIONING THE NEED FOR DENSITY AND VARIOUS GROWTH STUDIES
THE NEW ZONING BYLAW – WAS THE PROCESS FLAWED?
ANNEX
INTRODUCTION
I hope that you will take the time to read this document and are stimulated to question the issues put before you tonight. Some of you know that I try to be particular and accurate about my research. Probably only a few people in the city, besides some staff members have bothered to educate themselves about the proposed new zoning bylaw. I trust that it includes all of you – this is a very big deal. I sincerely hope that my words will become more than just a dusty piece of the public record.
A CASE IN POINT – WENTWORTH STREET
Firstly, I’d like to thank almost all of you for voting, on May 2nd, against the proposed subdivision of 952 Wentworth Street. In general, your comments indicated that you didn’t consider such a proposal was appropriate for the single-family zoned, heritage area of the Old City (please see Annex).
I must make it clear that I’m not trying to re-visit this issue, but simply using it as a sitespecific
case to question and illustrate the potential application of the new zoning bylaw. This bylaw
will act against your previous decision and if you pass the relevant section, it will put in
question the integrity of your earlier intent.
To recap, the lot in question currently has a length of 40.226 metres and frontage of24.23 metres, giving an area of 974.67 square metres (this is probably not untypical of some of the larger lots in the area). However, if subdivision occurred a 1.67 metre strip would be removed from the alley side reducing the frontage to 22.56 metres and the area to 907.49 metres. It seems that a rear right-of-way access from the alley and across another property does not distract from the overall area.
The new bylaw is very comprehensive and quite overwhelming if viewed in generality. There are a myriad of rezoning possibilities, hence my concentration on one location. The bylaw is meant to be user friendly, but I am not alone in my objection to its use of purely metric dimensions (instead of the current metric and imperial). I know that we are technically a metric nation, but many of us have problems instantly conceptualizing in metric, despite being able to do the math conversion.
I can see these new zoning details being applied to raw subdivisions, but the idea of applying them to existing, well-established, built-out areas is cause for conflict and disharmony. Densification brings problems – social and otherwise. Who pays for densification infrastructure?
There have been a number of changes along the way but I think I’m up to speed on the current
composition presented for your approval. I draw my quotes from a copy of the Draft New
Zoning Bylaw, Bylaw 4500 and the Notice of Public Hearing.
The Notice of Public Hearing states, ‘The proposed new Zoning Bylaw is intended ………………… to reflect the goals and objectives of planNanaimo ……………. (OCP) which embraces the concepts of complete communities, sustainability and growth management”. I believe that I already live in a complete community, sustainability is only accomplished in nature and we have already failed to limit growth. I would sooner have this plan focused on neighbourhood, another concept embraced by planNanaimo (OCP)
The Public Hearing Notice goes on to say that some elements of the existing Zoning Bylaw have been carried over into the proposed new Zoning Bylaw No. 4500, e.g ……………………. the
downtown zones from the existing bylaw have been reformatted within the new bylaw but have not been changed. My question – does this include the Old City single-family area? And if not, why not? Old City zones C 17 ~ 18~ 19 & 20 have all been saved as DT 8~9, 10 & 11 in accordance with the Old City Neighbourhood Plan, which also covers us.
I do not intend to comment on all of the proposed significant changes, but the following
recommendations are of concern -I will take them in the order shown in the Notice.
(1) That the minimum allowable single-family lot size be reduced from 600 square metres down to 500 square metres (instead of the earlier proposal of 450 square metres). The Wentworth Street house has just over 900 square metres, so, in theory, is now safe from the application of this bylaw. Furthermore, the minimum frontage proposed is 15 metresnot enough for two lots here.
(2) However, the next change allows some flexibility in lot sizes (10% variability) within the RI
(single family) zone – provided the average lot size within a subdivision is equal or greater than
500 square metres. Again, with the proviso, so far so good in this case.
(3) But then where a lane exists (as in the Wentworth Street case) minimum lot size and
dimensions for a subdivision are reduced. Minimum lot size becomes 395.5 Square metres and lot frontage is down to 10 metres. Where we appeared safe, now we are not. This makes a mockery of your decision to reject the subdivision of the Wentworth Street lot, and leaves the owner free to follow his original desire without rezoning or reference back to you. One notes that Staff supported the original rezoning applications, but changed their minds after the April 14th public hearing, when three proposals were opposed with large petitions and numerous representations. I’m sure we were all aware, a month or so ago, of the potential contained in the draft zoning bylaw. If your decision is not to appear duplicitous, you must reject the lane option in this case for the area.
Driving the lanes is difficult enough already on meeting oncoming traffic, without the added
problem of extra traffic backing out from an inside lot. They were designed to access the rear of
existing lots, not another tier built behind them. Off-street parking access in these circumstances should be directly off the street if any new subdivision of this area takes place, not through an adjoining lot.
(4) Since it already includes uses of accessory buildings and as bed & breakfast, board &
lodging, care facility, daycare, home based business and secondary suite, the idea of allowing a
duplex on Rl zoned comer lots between 700 and 1000 square metres is simply a total abnegation of single family zoning – a duplex is a massing of structure – a separate zoning and should be rejected in this area.
(5) I do not like the increase in height of accessory buildings from 4.5 metres to 7 metres in
order to allow a 1.5 storey secondary suite within the roof system. It creates an unnecessary overlook into existing properties and an impediment to their views.
(6) The increase for maximum accessory building size from 70 to 90 square metres (13% is
achieved at close to 700 square metre lot size) and excluding parking from that portion of the
building size calculation is tantamount to allowing another small house. This wasn’t the intent
when secondary suites were allowed. The RS-1 minimum lot size was 88 square metres. In this
area of relatively small houses, if accessory buildings keep on creeping up in size (and height)
we will wonder which is the accessory, and which the house. On the subject of accessory
buildings, it doesn’t seem to make sense to allow a minimum rear yard setback of 1 metre on a
lane, if the long-term objective of the city is to increase the lane width by 1.67 metres on either
side.
(7) The increase from 8.25 to 9 metres for single-family dwelling (from grade) and 5 to 5.5
metres (from curb) includes some unknown qualification, as does ……………. .
(8) Allowing front porches to encroach into the front yard setback. Neither of these items
seems to be significant problems in a built-out area at this time.
(9) Decreasing maximum allowable side and rear fence heights from 2.4 to 1.8 metres. (10)
As long as R1, non-strata townhouse development is separate from RI, and spot rezoning
isn’t allowed, it presents no problem to our area. Unfortunately, assumptions can be thwarted
by future changed applications.
(11) I am suspicious of ‘rewarding sustainable development practices and provision of
certain amenities with additional density’, but I don’t understand the details.
(12 – 16) I have no comment to offer, except (13) – I’m all in favour of urban food gardens,
allowing for sale of food grown on-site, as long as the commercial scale or nuisance doesn’t get
out of hand. But isn’t such land use incompatible with densification? Personally, I’d rather see
grass, flowers, crops and trees than cement driveways and foundations. Frankly, it’s far more
environmentally sound to have a productive garden than have that same space taken up with
buildings and the access-to them.
EXCLUSION OF SINGLE FAMILY AREA OF THE OLD CITY FROM BYLAW
This rather parochial perspective tends to support the need for this area to be excluded from
the ramifications of this new bylaw. The essence of the Old City single-family zone is that it is all that remains of the residential area that once surrounded the downtown core. It is a delightful historic neighbourhood that has been almost built out for most of the past century – a bit of a time warp and well worth saving from densification. Much as I personally hate the idea, it might even serve as a tourist attraction for visiting cruise ship passengers, being relatively close to their landing place. Please remember, 800’/0 of the residents recently polled in this area were against destructive densification and loss of flora. That is unlikely to change for a while, so the immediate impact of new zoning should see few resident orientated alterations to the neighbourhood. Eventually though, the impact could be vastly more destructive on our community
I have a number of other issues with this bylaw. It may take some time, but you must agree
that this is a weighty business, deserving due diligence.
RESTRICTIVE COVENANTS AND FAIR APPLICATION OF THE BYLAW
I have it on good authority, from a long-time local realtor (and others), that probably all
subdivisions built between the 1950s and the 1970s (called building schemes), and in the 1970s
and 1980s (called Land Use Contracts) and in some cases as late as the 1990s (or possibly even
later) have restrictive covenants. Many (or most) of them may prohibit subdivision of lots and
disallow secondary suites. The City of Langley had to take restrictive covenants into account
when it was considering allowing secondary suites in 2006. Details are hard to find, but some
evidence is available. It is known that Lynbum Estates is in this category and by inference
probably all of the other subdivisions
developed by the same builder. They tend to be from the old city boundary north and at the present extreme south-west end (Please see Annex for some details). The earlier subdivisions were built before the city had embraced them and served as zoning where none existed. These covenants on the owners’ deeds now supersede zoning bylaws, leaving large areas in zoning limbo – again a sort of time warp. Earlier covenants have no expiry date, but more recent ones do. Later, since amalgamation of certain areas into the city, it appears that this issue has been largely ignored, even though it potentially puts thousands of single-family homes outside of current and future zoning bylaws.
In this respect, the following principles might be considered – A bylaw must:
- respect rights acquired before the making of the bylaw;
- respect people’s rights to enjoyment of property;
- be capable of enforcement;
- not be inconsistent with the principles of natural justice (to act fairly and in good faith
I suggest that this new bylaw is not enforceable because it cannot be applied in a fair and
wholesome manner to all the single-family residences in the city. It has to limit its application to
the mostly older and in some instances, the newest parts of the city. In a way, it essentially
divides between richer and poorer. Many of the covenanted lots are quite large and may be more suitable for subdivision than smaller ones. We need to admit that this problem exists and deal with it effectively.
QUESTIONING THE NEED FOR DENSITY AND VARIOUS GROWTH STUDIES
The proposed legislation is about densification. I question the need for it. Studies for predicting
population growth were done in 2006 and 2007 in anticipation of amending the OCP in2008.
In November 2006, as part of Plan Nanaimo (OCP) Ten-Year review Urban Futures Inc.
prepared a population and housing projection for City Of Nanaimo (CON) from 2006 to 2031 :
Estimated CON population in 2006 = 84,600.
(Actual 2006 Census figures were released in March 2007 = 78,692)
Expected population to grow by 30% to 101,400 by 2016 & almost 50% to 118,000 by 2031.
It Predicted a housing demand of 53,300 dwelling units by 2031.
In January 2007, the Sheltair Group and Eric Vance produced the City of Nanaimo Land Inventory and Residential Capacity Analysis. The following are quoted from their
Conclusions and Recommendations.
“In 2005, it is estimated that there were 32,400 dwelling units in the city and the population
was 79,600 (BC Stats). The theoretical capacity for the city at build-out under current zoning
is 68,200 units, which could accommodate 152,800 people.
The practical capacity is much lower than the theoretical capacity as many residential areas of
the city have been built-out at lower densities than are allowed in the zoning bylaw. The
practical capacity is estimated at 55,900 units, corresponding to a population of 124,500
people. The practical capacity is believed to be the more realistic estimate of capacity in the
city.
In 2005, approximately 99% of the dwelling units were located within the Urban
Containment Boundary. The capacity analysis shows that 97% of the remaining residential
capacity is located within the UCB.
Urban Futures Incorporated estimates that the housing demand in 2031 will be 53,300 units,
which could accommodate a population of 118,000. For single-detached units, Urban Futures
estimates the housing demand to be 31,600 units in 2031. Therefore the practical capacity falls short of the projected demand in 2031 by approximately 1,600 units ………………..
The practical capacity for other ground-oriented units and apartments is sufficient to meet
the projected housing demand ……………… in 2031.
In the short- and medium- term (5-15 years) there is sufficient capacity to meet the projected
housing demand for all structural types. However, over the longer-term (15 years and beyond), the city may start to approach its practical capacity for single-detached units depending on the efficiency at which the remaining residential land is developed.
‘” . .it is recommended that the City: ….. Review housing demand and supply again in the
next 5 to 15 years to identify changes in housing demand and supply that have occurred
and determine remaining capacity ….
There is sufficient capacity on vacant or underused lands within the UCB to accommodate
projected housing demand to 2031, provided all zoned land is developed to its maximum.”
These studies were completed before UCB was removed to city boundary and before
secondary suites were authorized (and well before they included accessory buildings), and
Urban Nodes were in vogue, under the current zoning bylaw Since then more subdivisions
have been completed and Oceanview (Cable Bay) and Sandstone added to the mix. I found no
evidence of any more recent studies or that another study has been ordered to take these issues
into account.
Censuses were conducted in 2001, 2006 and 2011. The results are not immediately released.
The 2006 results were released in March 2007. The 2011 will not be released until May 2012.
As a consequence, these figures have built in inaccuracies (BC Stats are estimates and admit to
discrepancies) – and the effective baseline is a decade old. There may even be a net outflow as
people migrate east for jobs. Certainly, building development is near standstill. Might it be
wise, with the economic changes wrought since the new zoning bylaw was started in 2009, to
wait until at least September 2012 for the planned release of summary data for local
authorities. Then we can see if the projections supporting the densification have any merit.
Members of the planning departments of both the City and Region have commented that
actual growth is presently only a fraction of that predicted by Urban Futures study. Is it time
to rethink our strategy?
THE NEW ZONING BYLAW – WAS THE PROCESS FLAWED?
Is there a rush to implement the new zoning bylaw? There really doesn’t seem a very
pressing need, but a perusal of the published time line is quite interesting.
Timeline – New Draft Zoning Bylaw:
2009 March 5th- staff report to council intention to begin bylaw rewrite. 19th- staff internal review of existing bylaw. April 8th – internal survey on City website asks for comment – letters to stakeholders (VIREB. local architects. developers. consultants Canadian Home Builders Association. DNP, NCCA & NNN & media release. 28th – associated zoning compliance bylaw June 9th – presentation to PNAC for info & discussion.– staff meet local architects to critique current bylaw & brainstorm future changes 23rd – staff meet neighbourhood reps & encourage involvement July 15th
– staff meet developers to critique & brainstorm July 15th -staff meet developers to critique & brainstorm 22nd – staff meet, designers, engineers, land-use consultants, planners,
surveyors to critigue & brainstorm August 10th – zoning bylaw amendment October 13th-highlights presented to local architects for discussion
15th – highlights presented to land-use consultants for discussion 21st – highlights presented to developers for discussion 2010 May 12th – staff meet landscape architects & local developers to discuss proposed changes July 13th – draft copy presented to PNAC & goals discussed 14th – draft published on-line letter sent to all stakeholders (including NNN) re draft on-line August 9th – report to council 24th – staff meet chamber of commerce & discuss draft September 13th – draft presented to council
21st – PNAC updated October 16th – highlights presented to NNN November 10th – highlights presented to Advisory Committee on the Environment &
Sustainability 16th– PNAC introduced to early mapping process. 24th – meet Westwood Lake NA & discuss December 13th– meet Departure Bay NA & discuss 2011 January 6th– update info to council 7th– display at City Hall Annex 24th – update to council 25th– release of open houses to media 31st – open house on facebook February 3rd– newspaper ads 5th– newspaper ads 8th-NIC 10th – Behan Park 15th– update PNAC 16th – Dover Bay school 17th– Chase
River fire hall March 9th– meet SECA 10th– letter to south end commercial owners 15th– report to PNAC April 1 st – consultant hired 5th– meet BC Assessment Authority & discuss 7th – meet Wellington NA & discuss 19th– report to PNAC 20th– media report open house 21st – meet SECA May 4th – Beban Park 11th – meet ACES –
-meet Stephenson Point NA -meet SECA 17th– submission to PNAC June 13th– 1 st & 2nd reading by Council 23 rd – Public Hearing August 5th – Implementation
Is it just me, or can others see some bias in the creation of this document. By far the largest group to be affected is represented by neighbourhoods. In 2009, it was the other stakeholders
(particularly local architects, developers and land use consultants), those with vested interests, that staff met and encouraged to critique current bylaw and brainstorm future changes. Neighbourhood representatives were merely encouraged involvement (whatever that means) Later that year, highlights were presented to these same stakeholders for discussion. It was to be another yearbefore the Nanaimo Neighbourhood Network was presented with the highlights. At this meeting, in response to a question about the Old City area, we were told not to worry as the neighbourhood plan protected us. Perhaps you’d like to make his comment true. Subsequently, there was some discussion with neighbourhood groups but the document was already in play.
The representatives of the larger population had very little say in how these changes were
formulated. You might remember that in your deliberations.
Earlier this year, the local press reported that there are 62,323 voters registered in Nanaimo.
They also stated that there were sweeping changes in one of the city’s largest and most
complex bylaws, that could be getting a complete rewrite and if adopted it will change the
face ofNanaimo in years to come.
The city held 5 open houses to explain the new bylaw. They were very poorly attended.
Initially, only 37 completed surveys were returned to the city, including some e-mailed ones –
a few more came later -I think 62 in all, However, staff built up pie charts to indicate the
percentage in favour of the changes. They should have recognized the confusion or malaise
and ditched this whole project at this time. The process of developing this new bylaw has been
flawed. You might ask the question – ‘Is the (your) exercise of power for a true municipal
purpose, i.e. for the primary purpose of benefiting the ratepayers of the community (who have
stayed away in droves)?’ Maybe the householders want things to stay the same.
ANNEX
Extract of some of your comments opposing subdividing 952 Wentworth Street (taken
from video):
” Coach houses and secondary suites serve intent, without overkill” .
•• This area, this kind of area – several areas like that – conforms to density in OCP – is the
existing older house encroaching on the lane – want design, need to do more sensitively – need
to see design element, image to hold developer to” .
•• Too vague, single family – mixed …. tapering down. Neighbourhood is concerned. Form and
Character – process flawed. The type of infill in this area is form and character. No downtown
design guidelines – could put in really ugly boxes. Very beautiful area – bring down tone of
area. Problem with access from alleyway” .
•• Number of people present – petition was presented. Concern, why access off alley – if it’s
such a good deal why not come off Wentworth”.
” Want artists conception”.
” Need more information, Does infill fit this particular neighbourhood because of its
heritage value? Have alley issues been addressed?”.
” In favour oflnfill and densification, including Old City Quarter. Considerable number of
residents expressed concern – at this point, don’t know what is intended. Want area to stay
same. Too vague -can’t support it”.
Beach Estates – 88+; Cilaire – 455 (92); Cinnabar – 1; City (Divers) Lake – 550; Country
Club Estates – 300 (300); Highlands (Departure Bay); Five Acres Lands – ?; Forest Park
Estates; Green Lake -? (130); Hawthorn Heights – 69+; Lakeside Park (Divers Lake)- 100
(110); Lynburn – 400 (330); Morningside Beach Properties – 171 + (332); Smugglers Hill-
43+; Somerset (Wellington) – 68+; Woodlands – 50;
These are some of the subdivisions suspected of having covenants believed to limit rezoning
and the possibly of secondary suites (built between the 50s & 70s) with number oflots
where known (and acreage):This total alone may well exceed 3000 lots.
Sources: CHIEF STRAIGHT TONGUE by Donna Dash; GREAT NATIONAL LAND &
INVESTMENT CORP. LTD. Annual Reports; 2010 BCSC 1624 – Property Law Act, RSBC
1996~ C.377 &, Re: Lot 71~ Section 1~ Nanaimo District,. Plan 9500 (Lynbum Estates);
Hearsay.
The following streets in the city are mentioned on the internet in connection with restrictive
covenants: Amblewood Lane; (*) Argyll Avenue; Dunbar Road; Greenway Roadway; (*)
Highland Boulevard; (*) Montague Avenue; Sherwood Drive; Stephenson Point Road. (*)
Denotes pertinence. The others mayor may not be pertinent.
Land Use Contracts were added in 1971 (section 702a) to the Municipal Act. The municipality
enters into an agreement with a landowner to develop and use a tract of land according to
certain agreed terms and conditions. By virtue of the Municipal Amendment Act 1977, the
provincial government repealed LUCs and introduced Development Permits.
We are told that “In response to the adoption of the city’s 2008 OCP, in 2009 the CON
Planning Department introduced a draft new Zoning Bylaw to update the current zoning
bylaw (1993) and reflect the goals of the ocp – (1) managing urban growth, (2) building a
more sustainable community, (3) encouraging social enrichment, (4) promoting a thriving
economy, (5) protecting and enhancing our environment and (6) improving mobility and
service efficiency, (7) in the hope of creating a more concise and user-friendly bylaw, as well
as (8) providing more opportunities for affordable housing and (9) embracing the concept of
complete communities. (10) The overall vision will allow for a wide range of housing options
while maintaining the unique character of neighbourhoods.”
Of the proposed changes the following could apply to the existing Old City neighbourhood
(there may be more), and are stated to meet the highlighted goals of the OCP, as shown:
A – Reducing single family residential lot size from 600m2 to 450 m2.
(meets 1,2,3A~, & 6)
B – Creating a new zone (R8), which will allow for fee-simple townhouse ownership.
(meets 1,3 & 4)
C – Reducing the minimum lot size and dimensions required where a lane exists
(meets 1,3 & 6)
D – Allowing front porches to encroach into the front yard setbacks.
(meets 3)
E – Prohibiting parking between the street frontage and the front face of a building
(meets 3 & 6)
F – Allow detached secondary suites above a garage on lots greater than 800m2.
(meets 1,3 & 4)
One may argue that:
(1) Urban growth management is at the periphery not the core. UBC was the tool.
(2) Community is no longer sustainable as an effective community after a certain
density. Density was supposed to be in nodes and corridors.
(3) Social enrichment is degraded after a certain density.
(4) The neighbourhood bas little or no effect on the economy.
(5) An environment of mature gardens and trees is not enhanced nor protected by infill
and increased density.
(6) Service efficiency may be improved with density but only in core nodes. Pedestrian
mobility is encouraged by openness and tranquility.
(7) User friendly for whom? Most residents have little use for zoning changes.
(8) It remains to be seenhow affordable any housing stock will be iftbe demand is as
high as the density suggests.
(9) What is a complete community? Having a completely effective neighbourhood next
to downtown core residential density and commercial services seems ideal.
(10) Having a wide range of housing options will not maintain the unique character of the neighbourhood.
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