TOWN OF VIEW ROYAL COUNCIL REPORT - Section 57 Notice on Title – 21 Eaton Avenue

Section 57 Notice on Title – 21 Eaton Avenue

RECOMMENDATION:

That pursuant to section 57 of the Community Charter, SBC 2003, c. 26, Council passes a resolution for the filing of a notice with the Land Title Office against land with a civic address of 21 Eaton Avenue, Victoria, BC, V8Z 5C9 and a legal description of LOT E SECTION 9 ESQUIMALT DISTRICT PLAN 4018, PID: 006-169-881 (the “PROPERTY”) for failure to comply with the Town of View Royal’s Zoning Bylaw No. 900, 2014 (“Zoning Bylaw”) and the Town of View Royal’s Building Bylaw No. 786, 2010 (“Building Bylaw”).

PURPOSE:

To inform Council of a residential property with non-permitted construction in contravention of sections 3.1, 3.2, 3.3.1, 4.1.9 -one secondary suite, 3.4.1, 3.4.3 –floor space and density, 8.3.4- density – of the Town of View Royal’s Zoning Bylaw and sections 6.1, 6.2, 6.5, 8.1.1, 8.1.5, 8.4, 15.1.1, 15.2.1, 15.5.1, 20.1, 21.5 and 22.1 of the Building Bylaw and to request Council to pass a resolution directing staff to file a notice against the title of the Property under section 57 of the Community Charter.

BACKGROUND:

The property located at 21 Eaton Avenue is currently owned by Alexander “Alex” William Joseph Burns (08/10/2021 – present) prior to this, it was owned by Hyland Creek Ventures (10/23/2018 – 08/10/2021) and before this by Alex and Lara Burns (from 05/02/2018 to 10/23/18)¹. The residence on the property is a 3-storey single family dwelling (“SFD”) that contains one secondary suite and an unlawful converted crawl space that was used as an unlawful secondary suite until in or about December 2021². The property is currently zoned R-1B, Detached Residential (Medium Lot), which permits a single-family dwelling with a secondary suite.

On September 23, 2021, the Town of View Royal received a bylaw complaint concerning the development of a second illegal secondary suite. A site inspection was conducted on October 5, 2021³, by Lindsay Chase, former Director of Development Services and Dave Slobodan, Registered Building Official and former Building Inspector of the Town of View Royal. During this inspection, the presence of a second illegal secondary suite was found. The location of the illegal suite was in an area designated “crawlspace” on the approved building plans. The construction was undertaken without approved building or plumbing permits.

During construction of the illegal secondary suite, many violations to the approved building plans were conducted such as and not limited to, the removal of sections of foundation walls, structural supports, seismic shear walls and excavation of the ground. These contraventions have considerably compromised the structural integrity of the main dwelling unit. As this work was not permitted, consequently there were no inspections performed through out the construction and no way to confirm it met the minimum standards of the 2018 British Columbia Building Code. Due to the addition of the illegal secondary suite, the property now exceeds the maximum allowable floor area permitted under the R-1B zone.

Staff sent a letter to the current owner on October 14, 2021, giving him 90 days to come into compliance on his bylaw infractions and that failure to do so, would lead to proceedings against him.

Stephen Malkow of Farhill Engineering performed an inspection on January 28, 2022. His report was dated February 7, 2022⁴. The structural engineer notes that previously approved work had been modified without his consent or knowledge and provides guidance and a set of plans on how to remediate this illegal work. On May 31, 2022, the owner submitted a Building Permit application to decommission the secondary suite and reinstate the crawl space⁵. The building plans submitted with the BP application showed the work that was to be done to bring the crawl space into compliance with the Zoning Bylaw. In reviewing the BP application, the Planning Department confirmed that the proposed floor-to-ceiling height of the crawl space of 1.52m exceeds the maximum crawl space height permitted under definition of “Crawl Space” in the Zoning Bylaw, which is defined as follows:

“Crawl Space” means the space immediately above the finished grade:

• with a ceiling not more than 1.2m above grade;
• a floor to ceiling height, as measured from the finished grade to underside of the floor joists of the storey above, not more than 1.5m high for at least 20% of the crawl space; and
• where crawl space floor to ceiling height exceeds 1.5m the floor must be sloping a minimum of 10% and the floor must be at existing grade.

A letter dated July 22, 2022⁶, was sent to the applicant and owner requesting further information and revisions to the plans. The Town has received no correspondence or revised plans addressing staff comments from the applicant and/or owner since sending the letter almost one year ago.

Tom Scinocca, AIC Candidate Member, of D. Fritz Appraisals Inc. contacted the Town’s building department on June 12, 2023 noting that Tom was doing an appraisal of the property, which suggests that Alex Burns may be listing 21 Eaton Avenue for sale.

On Monday June 26th, 2023, a site visit was conducted at the address of 21 Eaton Avenue. The parties involved where Brad Cameron (By-Law Enforcement), Robert Gutierrez (Building Inspector) and Stephen Patterson (Building Inspector). Notice of this inspection was given June 23, 2023⁷, in the form of an email and hand delivered letter. Upon arrival, Alex Burns was not home, his wife Lara Burns informed us there was some confusion as Robert Gutierrez had conducted a site inspection the previous Wednesday (June 21, 2023). We were able to get a hold of Alex Burns who allowed us entry into the suite but could not be present for the inspection. Once inside the suite there was obvious evidence of neglect indicated by the spider webs, bugs, blown in leaves and overall general disarray. The bathroom and kitchen fixtures had been disconnected and capped off as well as the kitchen stove and hood fan had been removed. Photos were taken and the ceiling heights were measured, which is detailed in the attached inspection report⁸.

DISCUSSION:

As the Town has made numerous attempts to reconcile with the owner of 21 Eaton Ave and there has been no communication from the owner, it is recommended that Council direct staff to file a section 57 notice on title of the Community Charter to ensure any future owner is aware of the illegal construction and bylaw contraventions.

For Council’s information, Section 57 of the Community Charter permits Council to make a resolution to file notice on the property title, if the building inspector:

57 (1) A building inspector may recommend to the council that it consider a resolution under subsection (3) if, during the course of carrying out duties, the building inspector (a) observes a condition, with respect to land or a building or other structure, that the inspector considers (i) results from the contravention of, or is in contravention of, (A) a municipal bylaw, (B) a Provincial building regulation, or (C) any other enactment that relates to the construction or safety of buildings or other structures, and (ii) that, as a result of the condition, a building or other structure is unsafe or is unlikely to be usable for its expected purpose during its normal lifetime, or (b) discovers that (i) something was done with respect to a building or other structure, or the construction of a building or other structure, that required a permit or an inspection under a bylaw, regulation or enactment referred to in paragraph (a) (i), and (ii) the permit was not obtained, or the inspection not satisfactorily completed. (…)

ALTERNATIVE RECOMMENDATION:

Alternatively, Council may consider either:

a) invoking the remedial action process to seek that the owner of 21 Eaton Avenue reinstate the crawl space to its original condition.

b) Instruct legal counsel for the Town of View Royal to commence court proceedings by way of a Notice of Civil Claim under section 274 of the Community Charter to seek a mandatory injunction for reinstatement of the crawl space to its original condition and to immediately file a certificate of pending litigation against the title to the property after filing of the Notice of Civil Claim.

The time and expense involved in facilitating both of the above-noted recommendations is greater than the time and expense involved in directing staff to file a section 57 Community Charter notice against title to the property which can give potential purchasers of the property notice of the contraventions of the Building Bylaw and Zoning Bylaw.

CONCLUSION:

That the June 28, 2023, report from the Building Official titled “Section 57 Notice on Title – 21 Eaton Avenue” be received and the sought resolution directing staff to file a Section 57 Community Charter notice against the title to the Property be passed.

ATTACHMENTS:

Attachment 1: Title Searches Attachment 2: Letter from William Kendon dated December 16, 2021 Attachment 3: Letter from Lindsay Chase dated October 4, 2021 Attachment 4: Farhill Engineering Report dated February 7, 2022 Attachment 5: Copy of Building Permit Application Attachment 6: Letter from Lindsay Chase dated July 22, 2022 Attachment 7: Notice letter of inspection dated June 23, 2023 Attachment 8: Copy of inspection report dated June 26, 2023

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¹ Attached as Appendix 1 are copies of land title search results of the Property. ² Attached as Appendix 2 is a copy of a December 16, 2021 letter from William Kendon, legal counsel for Mr. Burns indicating that Mr. Burns relocated tenants out of the second secondary suite. ³ Attached as Appendix 3 is a copy of Lindsay Chase’s letter dated October 14, 2021 summarizing the results of the October 5, 2021 inspection. ⁴ Attached as Appendix 4 is a copy of Farhill Engineering’s February 7, 2022 report. ⁵ Attached as Appendix 5 is a copy of the Building Permit application submitted. ⁶ Attached as Appendix 6 is a copy of Lindsay Chase’s July 22, 2022 letter. ⁷ Attached as Appendix 7 is a copy of Stephen Patterson’s June 23, 2022 letter. ⁸ Attached as Appendix 8 is a copy of the Inspection Report together with Jeff Chow’s notes.