Parkdale Planning and Development Committee Report to the Community

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The role of the Parkdale Planning and Development committee is “To protect, mitigate and enhance community quality of life that may be impacted by land use, building/infrastructure development and other planning initiatives. To meet this objective, the committee will represent the interests of the Parkdale community residents on land use re-designation and redevelopment proposals within the community and City-wide policies that impact Parkdale.”

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One of the biggest issues we are facing is how to support densification within our community while conserving community fabric and quality of life. Parkdale has participated in no less than three comprehensive community plans to try and achieve density that respects sound planning principles. These plans, although well thought out and developed to provide intelligent informed guidance, are not statutory and therefore are not binding upon the City or developers.

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You may be aware that City Council is currently considering blanket policy changes that will support re-zoning of the low-density residential areas to allow multifamily development. This is being done in response to the "Affordable Housing Crisis" or also termed as the "Housing Crisis”. Although well intentioned, this change concerns many residents.

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One of the existing protections for some properties in older residential areas is a Restrictive Covenant (RC) that is registered on title. Restrictive Covenants are caveats to a Provincial land title prescribing certain restrictions such as a single house on a single lot, no pig farms, etc.

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They are classified as Private Law, registered with the province and while in place, supersede the Municipal bylaws. Often, they are applied to multiple lots and generally, may only be removed or altered if all the covenant holders agree to it. Also, it is typical that only parties to the restrictive covenant are allowed to speak to the covenant in a court.

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Municipal Bylaws and Private Law are separate entities so the City does not have to consult the land title for RCs before changing a land use bylaw or issuing a Development Permit (DP).

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The City can autonomously approve the LUA and the DP without consequence because the covenant is a provincial land title issue not a bylaw issue. However, so long as the Caveat is in force, the developer cannot construct beyond the limits of the Caveat. If they do, a person can take them to Provincial Court seeking remedy for violating the covenant. This can be a costly legal process, and is not typically executed by the province on its own.

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Some property owners are defending RCs to preserve their community fabric and prevent the City bylaw changes from allowing higher density on these lots. Several properties in Parkdale have RCs, primarily to prevent subdivision of lots to allow more density. One such property is 704 33 St. NW. Currently residents who are parties to the same RC are rallying to oppose removal of the RC on that property.

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Another community with RCs is Banff Trail. Homeowners in the community of Banff Trial are engaged in a lengthy and costly legal battle to uphold and maintain their RC and associated rights. Banff Trail is a community that has over 300 titles registered with the same RC and the same registration number. In this matter several developers pooled their resources seeking to remove the RC on 9 lots at 5 different proposed redevelopment sites in the area.

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A recent court of King’s Bench (KB) decision on this matter was split. The RC was upheld on 2 sites covering 3 lots BUT removed by ordered of the court on 3 sites encompassing 6 lots in total. That portion of the KB decision that pertains to the court ordered removal of the RC on 6 titles is currently under appeal.

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For those seeking to remove a RC by judicial order and without consent of the other RC holders, there must be a conflict with municipal land use bylaw (a conflict necessitates a judicial ruling), and such a removal is deemed to be in the public interest (a ruling will need to take this into account). (See section 48(4) of Land Titles Act and applicable sections of the Municipal Governance Act.)

 

One approach, as those familiar with the Banff Trail matter explained, is where a developer seeks a land use amendment with a Direct Control (DC) modifier. This DC modifier sets the minimum density on the respective lots just above the restrictions of the RC. When endorsed by the City a conflict between the municipal land use bylaw stipulations and the RC at the same location is established. Under such a scenario re-development of the lot(s) is effectively impossible as one cannot comply with both the municipal bylaw and the RC at this location. Resolution of such a conflict is adjudicated by the court.

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Municipal interference in private land contracts is dangerous and precedent setting. It effectively gives the City corporation and developers almost autonomous control over municipal development, while further limiting the voice of affected constituents. Such precedent effectively disarms property holders from any benefit or right of Private Law.

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If you are interested in learning more about the precedent setting loophole allowing overturning RCs by the City, and would like to support the opposition of this legislation, the contact is Wayne Howse howsewayne@yahoo.ca.

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It is important for community members to be aware of these proceedings and the actions that the City is taking in this regard. If you are interested learning more and supporting the residents’ effort to protect the RC on 704 33 St NW, the contact is Agata Korczewski akorczewski@yahoo.com.

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November 2023