Mayor and Council
City of Victoria
#1 Centennial Square
Victoria BC V8W 1P6
April 2, 2006
Dear Mayor Lowe and Council:
RE: AMENDED RE-ZONING APPLICATION #05-5: 1322
ROCKLAND AVENUE
The Rockland Neighbourhood Association (RNA) Land Use Policy and
Re-zoning Committees met jointly with the developer of 1322 Rockland
Avenue, Ms. Wei Tu, on Wednesday March 29, 2006 to discuss her amended
rezoning proposal. The meeting was open to the public and permitted
residents in attendance to pose written questions to the developer.
However, the aim was to permit the Committee to seek clarification from
the developer regarding the most current iteration of her proposal, but
was not intended to represent a full public consultation with the
neighbourhood.
The RNA Board directed its land use committees to carry out a detailed
analysis of the amended proposal and their report is attached. In
summary…
The current proposal does not represent a significant improvement over
the first iteration, postponed in 2005 by Council. It remains
incompatible with spirit and intent of the Rockland Neighbourhood
Plan and is grossly out-of-scale and character with the surrounding
neighbourhood or the site’s historic mansion;
the density and heights are unnecessarily excessive; hence, the
discretionary density bonus is not justified;
The proposal is inconsistent with R1-A and R1-B; rather, it seeks
re-zoning to ‘CD’ mixed commercial/residential use which again is
incompatible with the neighbourhood.
It is concluded that the current proposal does not comply with the
applicable zoning bylaws and neighbourhood plan and no convincing
argument has been given to show why variance from the bylaws and plan
is either necessary or desirable. The RNA Board supports in
principle appropriate development in our community, but finds the
current proposal seriously flawed on numerous levels, and cannot be
fixed through further revision. The Board therefore recommends that
application 05-5 be rejected.
Respectfully submitted for your consideration.
Henry D. Phillips
President
Enclosures: 2
cc. Ms. Wei Tu
Joint Report to the RNA Board of
Directors by the Land Use Policy and Rezoning Committees
April 2, 2006
Re: Rezoning Application #05-5: 1322 Rockland Avenue
This report addresses the proposal to build apartment buildings,
townhouses, and underground parking at 1322 Rockland. This property is
in the heart of Rockland, distinguished by its historic mansion
and a landscape of outstanding beauty. The mansion was built nearly a
century ago for a Victoria pioneer, Hewitt Bostock, who later became
Speaker of the House. In later years as the Caroline Macklem House, it
became a personal care home. The landmark mansion and surrounding
grounds, with mature Garry Oaks and glaciated rock outcrops, is now
seen annually by thousands on their way to Government House and
Craigdarroch Castle.
<>The ground plans and Project Data for the current proposal were
submitted on 10 February 06. In a report of 10 March 06, the Planning
Dept recommended that the proposal be declined. On Wednesday, 29 March
06, a joint meeting of RNA Planning and Land Use/Zoning Committees
convened in open meeting to discuss the proposal and ask questions of
the applicant, Ms. Wei Tu. After consideration of relevant information,
we concur with the Planning Department conclusion that the proposal is
inconsistent with the Rockland Neighbourhood Plan (RNP) and existing
zoning standards (R1-A and R1-B). Proposed densities and heights
substantially exceed current standards, and there are no public or
community amenities which justify a density bonus. The proposal relies
upon arithmetical calculations that have no apparent basis in technical
considerations or site configuration. The applicant has also produced a
document that shows an "entitlement," based on provisions from the
R1-B zone, which appears to justify construction after rezoning
(enclosed). We are concerned that this document has confused many
people.
The proposal has been assessed in light of instructions the
applicant received from Committee of the Whole, 28 April 2005: the
applicant should make "significant changes to the proposal" for
buildings "that better reflect the guidelines in the Rockland
Neighbourhood Plan." The proposal covers a lot of 98,473 sf with: two
4-storey apartment buildings with 22 units; 6 townhouses; and
single-family homes in the mansion and coach house.
The proposal makes no provision for multiple units in the mansion,
as recommended by the RNP, by the Planning Department and by Council,
nor is there a restrictive covenant to preclude subdivision of the
mansion into suites at a future date, after the property is already
subdivided and developed. Without an appropriate covenant, a
future owner would still be free to subdivide the mansion, raising
density well above even the current proposal. Specific zoning concerns
include the following:
<>The proposal's Project Data cites "CD" zoning to divide the
property
into four parcels, A to D. This zoning is impossible because it does
not allow single-family homes. CD zoning applies to areas that
combine commercial activity and multi-unit residences. The RNP
expressly excludes mixed commercial/residential use, such as envisaged
by CD zoning. Even if subdivision were granted, Parcels B and C, for
mansion and coach house, require minimum lot sizes larger than those
described in the Project Data. According to City Bylaw 82-14 article
20, the minimum lot size for the mansion (10,245 sf) must be at least
30,139 sf; while the minimum lot size for the coach house (2,730 sf)
must be at least 9,910 sf. The sum of the remaining Parcel’s A and D is
thus 58,424 sf, which is much less that the 70,009 sf. stated in the
Project Data. This error in the proposal consequently affects the other
calculations. <>While a "new zone" might offer some uplift, the
proposed 30 units far exceeds what would be allowed under the
neighbouring R1-A/B zones, even with a density bonus. The Project Data
cites"Existing Buildings" as comprising 12,975 sf. According to the
R1-B bylaw, the maximum total units within mansion and coach house
would therefore be calculated as 11.6 units. Article 1.3 of the RNP
recommends this as the total number of units appropriate on the
property (i.e., the figure "…should not exceed the number possible by
means of conversion to suites alone"). Alternatively, using R1-A
zoning, the maximum total units for the remaining area --which, as
explained above, is 58,424 sf rather than 70,009 sf--would 7.33 units.
Summing the two figures for the total site yields an overall maximum of
only 18 units, rather than 30.
<>The largest dwelling configuration requested by the applicant,
two
apartment buildings, is excluded by the R1-A and R1-B zones. The RNP
recommends clustered townhouses, for which there are several precedents
in Rockland. Although the number of units has been reduced from
previous plans, the current proposal actually requests slightly more
floor area to accommodate larger units. The requested building height
is now 12.5 metres (4 storeys), which exceeds R1-A/B zoning.<>
In short, the proposal differs markedly from R1-A/B zoning and the RNP.
Any further consideration of this proposal would also require attention
to the following issues, among others, that are addressed by
municipal bylaws and the RNP:
Technical assessment of blasting impact: The proposed underground
parkade calls for a minimum excavation of 66m X 20m, to a depth of
several metres. This will destroy rock outcroppings and mature trees
that are part of the increasingly rare Garry oak plant communities that
have been ranked as imperilled and critically imperilled within British
Columbia. As well, it will threaten the structural integrity of the
mansion and adjacent heritage properties within 10 metres of the blast
site, and potentially disrupt the water table and underground stream
which courses through the property.
<>Integrity of the mansion: The applicant has acknowledged a
dangerous
state of disrepair in this heritage-registry mansion. The proposal must
be placed under a Development Permit that halts "benign neglect,"
prioritizes heritage restoration to a high standard, and requires
compliance with a responsible building plan.
Public views and townhouse siting: The bulk of the apartment
buildings and the front-yard siting of six townhouses would impact on
sight lines towards the mansion. This contravenes standards in the RNP
which recommend only side and rear-yard siting of townhouses and
preservation of neighbourhood views of heritage structures. As well,
the Project Data indicates that the townhouse Parcel D has site
coverage of 37.9%, well above the R1-A requirement of 25% site coverage.
Traffic, parking and road upgrades: The large number of proposed
parking stalls is noted in the Planning Dept report of 10 Mar 06. As
well, the proposed increased density and consequent traffic volume
along Royal Terrace will eventually necessitate future installation of
sidewalks. However, the proposed setback of only 0.6 metres for the
townhouse complex would crowd any future sidewalk and thereby eliminate
a grassed boulevard.
Finally, there is serious concern that the applicant has circulated
a document titled "Density Entitlement & Bonus Density Analysis"
(enclosed) with information that differs significantly from the Project
Data. The document cites figures that apply to existing allowable
density under R1-A/B zoning, but would not apply to the property after
it was rezoned and subdivided. For example, the enclosure cites the
square footage of existing buildings as 18,198 sf, in contrast to the
Project Data which states 12,975 sf. The discrepancy presumably
represents 5,223 sf in buildings added to the mansion after 1931. These
"later unsympathetic additions" [developer’s description] would be
demolished and therefore are not eligible for subdivision in the R1-B
bylaw. Nonetheless, they have be counted in the total square footage,
and inflate the calculation of allowable units (15.83 instead of only
11.6). The document further assumes that zoning uplift through
density bonus is an "entitlement," when in fact it is discretionary,
and awarded on a case-by-case basis. While the applicant’s document
apparently is not included in the official re-zoning application, it
has confused the both the RNA Board and neighbourhood and suggests that
the developer’s calculations need to be validated by City planning
staff.
While much remains unclear about this proposal, it is certain that
its major features are inconsistent both with existing bylaws and the
RNP, and would create a precedent for escalating development in the
neighbourhood. On 10 March 06, the City Planning Dept recommended that
this proposal be declined. We respectfully request that Council,
mindful of its own previous instructions to the applicant, decline this
proposal as well. However, any further consideration should include a
neighbourhood consultation, in an impartial format, that includes an
opportunity to question both the developer’s architect and the assigned
City Planner.
B.
LETTER TO MAYOR &
COUNCIL DATED APRIL 19, 2006
THE ROCKLAND NEIGHBOURHOOD ASSOCIATION
PO Box 5676, Station B Victoria BC V8R 6N2
Pledged to the protection of a unique urban environment
Mayor and Council
City of Victoria
#1 Centennial Square
Victoria BC V8W 1P6
April 19, 2006
Dear Mayor Lowe and Council:
RE: RE-ZONING APPLICATION #05-5: 1322 ROCKLAND AVENUE
The Rockland Neighbourhood Association (RNA) Board of Directors fully
supports appropriate development in our community. The successful
redevelopment of this landmark property will be a turning point for our
neighbourhood and sets the benchmark for future developments.
The Board believes that a townhouse-cluster model, alongside multiple
units in existing heritage buildings, is the preferred model for this
site. This configuration satisfies long-term neighbourhood objectives
while conforming to zoning principles stated in the neighbourhood plan:
Densification can be achieved without drastic variance from current
zoning. Condominium-apartment buildings are counter to our Rockland
Neighbourhood Plan (RNP) and will set a bad precedent for future
development. Compliance with the R1-A bylaw still provides for ordered
growth and densification, without punishing neighbouring property
owners.
Subdividing both the mansion and coach house into multiple units or
suites is likely the only economically sustainable option. As
envisioned by the R1-B bylaw, multiple units will make use of available
living and parking space and insure lasting enjoyment of the mansion.
Single occupancy, even with covenants restricting subdivision, is
unlikely to create a suitable financial environment for the long-term
protection of the 10,245 sf heritage structure.
Blasting to construct a parkade will have an unpredictable impact on
underground watercourses, threaten neighbouring heritage properties and
destroy rocky outcrops and trees which would otherwise enhance the
proposed Pemberton Trail amenity. Existing above ground parking would
need only modest expansion if the overall scale of this development was
reduced.
Recent Rockland developments such 944 St. Charles and 906 Pemberton
demonstrate how to successfully restore heritage properties while
increasing density and still achieving the principles of the
neighbourhood plan.The RNA Board acknowledges that appropriate
discretionary use of a density bonus has merit, with the goal of
achieving a greater public good. We support a modest zoning uplift from
R1-A [article 9] and R1-B [article 1(o)] zoning bylaws in exchange for
public amenities, such as restoring the mansion to a high standard of
historic preservation, and creation of a public right-of-way for the
Pemberton Trail greenway project. A modest uplift may be possible on
Lot 2, Plan 35717 by building a duplex rather than a single
family R1-A dwelling. Determination of a suitable bonus should consider
the following:
1. Transfer of units or bonus density from inside a building to
outside, or from one parcel to another, is outside the scope of the
written bylaws. "Allowable units" calculated from an existing
building's zoned density under R1-B provisions should only apply to
renovation within that structure and not transfer to new buildings.
2. It is our understanding that density uplift does not apply to
building height, which must remain within R1-A limits.
3. Timely restoration and renovation of the mansion must be legally
guaranteed by means of a binding development permit and, needs to be
completed early in the project, to prevent further deterioration of the
structure.
Rezoning discussions need to ensure that projected unit yields are
realistic and are not based on simple arithmetic calculations. A
professional site analysis is necessary to do justice to this estate,
and address significant concerns such as siting of townhouses, roads
and parking, preservation of mature trees and landscape features,
routing of the Pemberton Trail, and establishment of heritage and
aesthetic goals. The neighbourhood plan places considerable weight on
maintaining unobstructed public sight lines to mansions [Rockland Plan
policy 2.1.3 & Diagram 1; R1-A zone article 14], while good
planning principles dictate that heritage buildings must retain
adequately sized lots. A zoning uplift beyond the R1-A/B standard needs
to meet these needs.
We reaffirm our commitment to work with Council, the developer and City
planners to achieve a quality project and believe that a workable
solution is at hand. We would welcome the opportunity to review any
revised proposal and provide constructive comments. We would also
recommend that residents be directly consulted on the next revision, by
means of a community meeting, chaired by an impartial facilitator and
attended by the developer, architects and City planning staff.
Sincerely,
Henry D. Phillips
President
c.c. Ms. Deborah Day – Director - Planning Department
Ms. Wei Tu - Developer
C.
Letter to RNA from Joseph de Villiers regarding application
Jakob S. de Villiers Q.C.
Barrister and Solicitor
3140 Wessex Close
Victoria, B.C.
V8P 5N2
Tel. 250-475-7561
Fax
250-475-2684
jakobv@shaw.ca
July 14, 2006
To the Rockland Neighbourhood Association Board
PO Box 5276, STN B
Victoria, B.C. :-
V8W 6N2
Rezoning Application 05-5: 1322 Rockland Avenue
You have contacted me on behalf of the Rockland Neighbourhood
Association and requested my comments on a number of issues relating to
the proposed rezoning of 1322 Rockland Avenue. You have supplied
me
with the pertinent written materials for review, and I have discussed
the issues with members of the Association’s Zoning and Strategic
Planning Committees.
You have asked me to include in my comments the propriety of the
procedures that have been followed so far in this matter in the
processing of this rezoning application, and also to comment on such of
the issues as may appear relevant within the context of City zoning
policies.
Your Association is concerned, not only with the merits of the present
Application, but also with the direction in which the City may be
moving. Generally, you wish to uphold a consistent and reasonable
approach, which will ensure, not only fairness in process, but also the
maintenance of a congenial neighbourhood, for the enjoyment of all its
inhabitants.
Involvement of your Association in the rezoning process:
It appears that it is the policy of the current City administration to
require all applicants for rezoning outside the core area of the City
to submit their proposals to the applicable neighbourhood association
for comments before the process for the evaluation of the proposal by
Planning staff is commenced, so that the views of the Association may
be taken into account.
This is obviously a sensible policy, since many of the issues that
would otherwise not be dealt with until they are raised at the eventual
public hearing can be addressed early, and perhaps resolved to the
satisfaction of the association and the developer. It also has the
advantage that the Council can be informed of issues of concern to the
neighbourhood ahead of time, so that its Committee of the Whole may
then decide whether to go to the trouble of letting the application go
forward to a public hearing. All this, however, assumes that both the
applicable neighbourhood association and the Planning Department
receive full and accurate information, so that they may make informed
submissions to Council; otherwise the involvement of the Association
would be an exercise in futility.
Looking at the material that you have provided me, I am of the view
that the Applicants have given erroneous information on certain
important issues that I will address below, not because they want to
mislead Council but because they misunderstand or misinterpret the
existing bylaws and policies of the City.
Your Association cannot be expected to make a meaningful contribution
to the debate unless there is proper and continuous disclosure to it of
the relevant facts. What you need is an updated application,
superseding all previous applications, and containing all pertinent
information.
Process of the application:
This application has been presented to City Hall in a manner that leads
to unnecessary confusion, and, in my respectful opinion, the confusion
has been contributed to by the fact that the Applicants have not been
required to submit a fresh application each time a current application
is rejected or abandoned, no doubt because the application has been
regarded as a continuous one, simply requiring revision when the
Applicants meet with resistance. While that approach is fair to the
Applicants it has led to unfortunate difficulties, because it is
difficult for any outside observer, including your members, to keep
track of what is being proposed from time to time, unless one is as
familiar with the history of the application as the Planning staff no
doubt is. Since 10 January, 2005 the Applicants have, in effect,
submitted 3 different applications over an 18 month period,
successively proposing reduced density, all of which have been treated
by the Planning Department as one continuing application.
It is my understanding that it is the policy of the City to require an
applicant for rezoning, who has been unsuccessful, to wait a year
before making a new application, but it is not clear to me whether an
application is treated as unsuccessful if it never went to a public
hearing before rejection by Council.
In my opinion it would be much easier for all concerned to require the
Applicants now to submit an entirely new application, addressing the
entire merits of the application and explaining what is proposed, even
if reference is made for comparison purposes, to the earlier
proposals. I recognize that by doing so, the Applicants would
have to
pay a fresh application fee, but that is part of the cost of doing
business. After all, the purpose of the application fee is to
compensate the City for the cost of the staff time involved in
reviewing a single, not a repetitious application.
I also am of the opinion that it is not proper to accommodate an
applicant for rezoning by “grandfathering” a privilege lost by
effluxion of time, that would not have been available if a fresh
application were submitted. I will have further comments on this
“grandfathering” below.
Consistency of planning policies:
While it must be acknowledged that the City Council has extensive
powers by law to change the zoning status of land, it is reasonable for
your Association, as representative of the inhabitants of your
neighbourhood, to expect that the Council will respect the overall land
use policies that have been in place for many years in the Rockland
neighbourhood and enjoyed by its many inhabitants and by the citizens
of Greater Victoria. The Rockland Neighbourhood Plan, although
not
currently adopted by bylaw as an official community plan, has been
honoured by previous developers and homeowners and has been adopted as
a criterion for evaluation by the Neighbourhood Association land use
committees.
What is being proposed by these Applicants is a radical departure, not
only from the Neighbourhood Plan, but also from the currently
applicable bylaws (R1-A and B zones and the Subdivision Control Bylaw
82-14) and sound planning principles, without any apparent rationale,
other than the obvious desire to maximize their profits. The
Council
must understand that if they yield to the entreaties of these
Applicants they will allow a single development totally out of
character with the Rockland environment and compromise the historic
nature of the neighbourhood that is enjoyed by residents and visitors
alike.
The precedent that would be set by allowing this particular application
to proceed would inevitably encourage a host of similar applications to
transform the Rockland neighbourhood, and it would be difficult to
rationalize any basis for rejecting any of them.
It should be recognized that Rockland now supports a great diversity of
housing, including several assisted living facilities and many short
term accommodations. In particular, people of modest means are now able
to enjoy the pleasure of living in the multiple dwellings that
characterize many of these old houses. For reasons that I will
indicate below, it seems clear that this particular proposal, if it
goes ahead, would establish a precedent, destructive of the present
character of the Rockland neighbourhood, going well beyond “spot
zoning.”
Wrong information, based on an erroneous interpretation of existing
bylaws relating to current allowable density:
Much of the Applicants’ argument for allowing the development to
proceed has been based on their interpretation of “density.” I will set
that out below.
Their lawyer uses the term “Zoned Density” to describe the density
permitted under current zoning. He says it is 15.83 units. I
respectfully disagree. I think it is 12 units.
As I understand the facts, the area of land to be rezoned consists of 2
adjacent parcels of land, one of which, the smaller, Lot 2, has no
buildings on it. The other, Parcel A, has a pre-1931 mansion and a
“coach house” on it. The pre-1931 mansion is 10,245 square feet and the
coach house, date of construction unknown, but probably before 1931:
2,730 square feet. There are other buildings, erected after 1950,
that
appear to be non-conforming, and so should not be included in
calculating present density.
The zoning of Parcel A is RN-2. That means that the regulations
of
Zone R1-A, Rockland Single family Dwelling, apply to it. R1-A in turn
permits whatever is permitted in R1-B. R1-B permits multiple dwellings
in houses built before 1931, such as the one on Parcel “A”, but it
requires that each dwelling unit must be at least 33sm or 356 sq. ft,
exclusive of common areas. Minimum habitable floor space
restrictions
apply.
Thus, according to the Bylaw, the maximum number of dwelling units in
the mansion is 5 (occupying at least 4791 square feet) plus one for
every 1238 sq. ft. over 4791. According to my arithmetic that is a
maximum of 9 units for the mansion, based on 10,245 sq.ft.. For
the
coach house the allowable number would be 3, based on 2,730 sq. ft., a
total of 12 units for the 2 buildings, assuming that their total floor
areas are “habitable floor space.” Each building is a separate unit for
the purpose of calculating minimum habitable floor space. I
therefore
disagree with the Applicants’ calculation of 15.83 units for the 2
buildings. I believe that the floor space of the post-1930 buildings
was erroneously included in that calculation.
In their May 15, 2006 letter to Council the Applicants say that, based
on Mr. Sikstrom’s “overhead projection chart,” there is a current legal
entitlement of 23 units, and they are using this calculation as their
“baseline.” But I understand from Mr. Sikstrom’s report to Committee of
the Whole, dated 21 April, 2005, that he had calculated that the lot
area and existing zoning would permit only 11 units as townhouses in
combination with units in the house and coach house. In that report he
in fact said that subsequent to a subdivision of a separate lot it may
increase the potential number to 20 to 22 “subject to rezoning.” I do
not see how these figures can be reconciled with what the Applicants
allege, especially since Mr. Sikstrom’s report of 10 March, 2006 states
the Applicants’ calculation and does not purport to adopt it as his
own. In any case, their suggestion that they have an “entitlement” of
23 units is insupportable. Even if it can be argued that existing
zoning permits a total of 23 units, including the permissible dwelling
units within the pre-1931 dwellings and any units that may be erected,
if additional lots are created by currently permissible subdivision
rules, there is no “entitlement” to erect dwelling units corresponding
in number to those in the old buildings by erecting new buildings and
offering to reduce the number of units to be retained in the old
dwellings below what is currently allowed.
Whatever “entitlement” there is, is predicated on the retention of the
old buildings and their use as multiple dwellings. The “entitlement”
cannot be transferred from the old buildings to new buildings. In
short, the Applicants are only “entitled” to what the current zoning
permits, if the buildings are used subject to its restrictions.
Without the existence and retention of the mansion and the coach house
the Applicants would only be entitled to erect one single family
residence on each additional parcel of land into which the combined 2
parcels are subdivisible.
It is also relevant to note that the proposal, based on the erroneous
notion of “entitlement,” would substitute new townhouses, each with a
floor space averaging roughly 2700 sf, plus 2 garages, for each
existing dwelling unit of less than 1,000 sf.
Minimum Lot Size
To give effect to the rezoning and concomitant subdivision into new
parcels, the parcel on which the mansion remains would under the
present Subdivision Control Bylaw have to be a minimum of 2800 sm (or
30,139 sf.). Likewise, the parcel on which the coach house remains must
be a minimum of 9,910 sf. However, to accommodate the proposed
rezoning the parcels would have to be reduced below those minimums for
subdivision purposes, a legal impossibility, unless the Council sees
fit to amend the Subdivision Control Bylaw in a manner that would
result in Rockland mansions being retained in substantially smaller
parcels than at present.
In this context it should also be noted that if the Applicants succeed
in their rezoning application and wish to give effect to it by
consolidating and then subdividing the parcels in such a manner as to
create a “panhandle” lot (a parcel with less than 10% of its boundary
contiguous to the street) they will need the approval of at least 6 of
the members of Council.
The “2004 Density Bonus Policy”
I have examined the “City of Victoria Density Bonus Policy”, said to
have been “approved in principle by Committee of the Whole Jan. 13,
2005” and “archived” on July 21, 2005, “but grandfathered for
applications in process.” I suspect that one of the reasons why
these
Applicants have not been required to submit a fresh application after
the resistance they encountered with their first application, was to
enable them to continue to take advantage of the Density Bonus Policy.
In my opinion the Density Bonus Policy has never had any legal effect
and it should never have been applied to this or any other rezoning
applications, for the following reasons:
1. It was not in the form of a bylaw, as required by
Section 904 of
the Local Government Act, and instead purports to enable the City to
“consider bonus density in developments where it will result in the
provision of affordable and special needs housing and community
amenities.”
2. It did not apply to a particular, identified zone
only, as required by Section 904.
3. It did not purport to allow property to be used in
a more dense
manner than the applicable Zoning Bylaw permits, upon the fulfilment of
conditions stipulated in a Bylaw.
4. It purported in S. 6.5 to enable an applicant to
pay cash in lieu of providing amenities.
S. 904 of the Local Government Act, provides for the creation of a
“density bonus,” but only within a defined zone. Essentially,
what it
permits, is the creation of a particular zone with a general minimum
density, applicable to all parcels of land within it, and a more
generous density (enabling smaller parcels to be created in that zone)
if the owner provides certain “amenities” or provides special needs
housing, all within that zone.
You will note, first, that the bylaw that allows for increased density
must apply to a particular zone and must itself be a “zoning”
bylaw.
There is no provision for it to apply to all of the municipality.
Secondly, the bylaw must state the generally applicable density that
applies to all of that particular zone, and then indicate the increased
density within that zone that would be allowed if the owner provides
amenities. Thirdly, there is no provision in it enabling an owner to
avoid the provision of an amenity by paying money to the municipality.
That would amount to selling zoning, a practice which the Supreme Court
of Canada has outlawed in a recent case to which the City of Victoria
was a party. It should be noted that, by contrast, Section 906 of the
Act, which relates to the provision of parking spaces, expressly
enables a council to provide in the bylaw for the payment of cash in
lieu of providing parking.
The Applicants propose in their letter of May 15, 2006, to apply a
”method of exchange of benefit.” It is highly doubtful that any such
“deal,” including the proposed trade of the Pemberton Trail access, in
exchange for getting the rezoning would be lawful. It would amount to
selling zoning. That is what the Applicants now propose under the
caption of “Density.”
Section 904 requires the municipality to identify the zone to
which a
density bylaw applies, and then to define the general (or normal)
density and the increased density within that zone. Here we are
concerned with the creation of a new zone, tailor made for the
Applicants. What would be the general density, applicable to this zone
in its entirety, and what and where would be the increased density?
Even if this “Bonus Policy” were in the form of a bylaw, it would have
to specify the general density in the zone concerned, and then the
increased density that could be acquired by providing amenities. This
policy never was in the form of a bylaw and did not apply to a
particular zone. On its face it was simply a device created for
the
purpose of extracting money from applicants for rezoning.
It would be improper for the City to “grandfather” or otherwise
implement or take into account the ultra vires Density Bonus Policy in
processing this application. In any event, neither the Applicants
nor
the Planning Department seems to propose a procedure for the exchange
of amenities for the proposed rezoning, even if such an exchange were
permissible.
Conclusion:
Instead of permitting the Applicants to haggle with it on the basis of
the invalid Density Bonus Policy or of their spurious “density
entitlement,” the Council should focus on the effect that such a
massive redevelopment would have on the established amenities of this
quiet neighbourhood.
I have no objection to your showing this letter to any interested party.
Yours truly,
Jakob S. de Villiers Q.C.
D. Letter
from RNA to City dated August 1, 2006
Mayor and Council
City of Victoria
#1 Centennial Square
Victoria BC V8W 1P6
August 1, 2006
Dear Mayor Lowe and Council:
RE: RE-ZONING APPLICATION #05-5: 1322 ROCKLAND AVENUE
On June 27, 2006, the Rockland Neighbourhood Association (RNA) land use
committees met with the developer to discuss her ground plan dated May
15th, 2006. The RNA Board then engaged Mr. Jakob deVilliers QC to
provide a legal opinion (enclosed) regarding the zoning assumptions
that underpin the application.
The proposal amalgamates two independent lots: the Schuhuum mansion
lot, and "Lot 2, Plan 35717”, with a grand total of 27 units allotted
as follows: three new townhouse complexes including 22 units (Parcel
A); conversion of existing mansion into 4 units (Parcel B); and 1 unit
in existing coach house (Parcel C). The proposal also creates 58
aboveground parking spaces. A public-access "Pemberton Trail" would run
north from Rockland Ave. to join an entry from Royal Terrace to the
east.
The Board’s views are as follows:
We endorse the townhouse concept with a maximum height 10.5 m as
complying with R1-A/B zoning and the Rockland Neighbourhood Plan (RNP).
Four units in the mansion is a promising scenario for its preservation.
In this respect, we support City Council’s endorsement on April 28,
2005 of the Planning Department’s recommendation to achieve consistency
with the RNP by using "low density, clustered townhouses in combination
with some suites in the mansion and coach house".
Nonetheless, the overall impact of the current proposal is still a
radical departure from current zoning principles, inconsistent with the
RNP, and based on misinterpretation of current zoning bylaws, as
described in Mr. deVilliers’ opinion. Critical shortcomings are
summarized as follows:
GROUND PLAN CONFIGURATION
Parcels B and C violate the Subdivision Bylaw 82-14, article 20. In
particular, the Parcel B (the mansion) is almost 30% smaller than
required area (20,496 sf., instead of 30,139 sf.).
If Parcels B and C did contain the required area, Parcel A would have
60,926 sf. of new construction on a lot of 58,424 sf. The habitable
space/area ratio of Parcel A would be over 1.0, far in excess of what
is appropriate.
Parcel B (mansion) would become a noncompliant panhandle lot facing
east, with a new address on Royal Terrace. The south-facing mansion,
currently under heritage protection as “1322 Rockland Ave”, should
retain its historic Rockland Ave address and, if subdivided, should
have its own title on Rockland Ave.
DENSITY
An erroneous claim to a "legal entitlement” of 23 units, is apparently
derived from conversion of the existing mansion to 15 units and
subdivision of the remaining land into eight single-family lots.
However, R1-B zoning calculations apply within existing buildings, and
are not transferable to new construction. The entitlement to units
derived from subdivision of existing space within the existing mansion
cannot be reallocated to create 22 new townhouses constructed elsewhere
on the property. Also, the developer’s calculation of 15 allowable
units within the mansion is still considered incorrect, and must be
verified by City Planning staff.
Proposed number of townhouses far exceeds current zoning allowance.
Parcel A places 22 units on 70,008 sf., despite R1-A zoning permitting
only 1 townhouse per 9000 sf. (or total of 7.8 units for Parcel A).
Correct application of the R1-A Bylaw would limit the proposal to only
6.5 townhouses on 58,424 sf.
Proposed new construction totalling 60,296 sf. is roughly six times the
mansion's area. Each townhouse complex would be larger than the mansion
and would significantly diminish its stature and presence as a heritage
building.
"Lot 2" is currently an independent R1-A lot. After its amalgamation it
would be covered with 6 townhouses with a 3m setback. This would
compromise the single-family atmosphere on Royal Terrace and Manor
Road. We recommend that this property retain its R1-A zoning, with
appropriate setbacks to the road and adjoining property.
ENVIRONMENT
The “Pemberton Trail" right-of-way, as proposed by the developer,
funnels walkers onto Rockland Ave, contrary to the original route
envisaged by the Greenway Plan endorsed by the City, which studiously
avoided busy roads such as Rockland Ave or Fort St. The developer’s
proposed route on paved driveways amongst dense townhouse complexes is
therefore of marginal value as a public amenity.
There is no heritage covenant to guarantee restoration of the mansion.
The mansion and carriage house require a heritage covenant to guarantee
prompt restoration.
Townhouses in front of the mansion will block sight lines from Rockland
Ave. Sensitive placement and less dense construction could preserve
views from Rockland Ave, as well as from adjacent Gillespie and Royal
Terrace.
Much of the estate’s mature Garry Oak habitat will disappear under
asphalt, because of an excessive number of proposed parking stalls.
In conclusion, this proposal departs radically from the current bylaws
and RNP, and remains much too dense. The developer still presses for
maximum site coverage instead of a responsible, sympathetic addition to
the neighbourhood. The success of previous Rockland projects (for
example: 906 Pemberton, the Molson mansion, the Wilmar) clearly prove
that sensitive compliant development is still economically feasible,
while preserving the estate character of the neighbourhood. A fresh
start is required. We request that you decline this application.
Respectfully submitted for your consideration.
Henry D. Phillips
President
Enclosure: 1
cc. Wei Tu - Developer
Deborah Day – Director of Planning and Development -
City of Victoria
Brian Sikstrom - Senior Planner - City of Victoria
Thom Pebernat - Zoning Administrator - City of
Victoria