Council Report: SECTION 57 NOTICE ON TITLE – 17 EATON AVENUE (July 14, 2020)

SECTION 57 NOTICE ON TITLE – 17 EATON AVENUE

TO: Council DATE: July 14, 2020 FROM: Gary Faykes, Building Official MEETING: July 21, 2020

RECOMMENDATION:

THAT pursuant to section 57 of the Community Charter, SBC 2003, c. 26, Council direct that staff file a notice with the Land Title Office against land with a civic address of 17 Eaton Avenue, View Royal, British Columbia, V8Z 5C9 and a legal description of Lot B, Section 9, Land District 21, Plan EPP21580 (the “Property”)¹ for failure to comply with the Town of View Royal's Building Bylaw No. 786, 2010 (“Building Bylaw”) and the Town of View Royal's Zoning Bylaw No. 900, 2014 (“Zoning Bylaw”);

AND THAT, in the alternative, and should the owners of the Property seek adjournment of hearing of this staff report on or before July 21, 2020, and since the Property is listed for sale, that Council 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 removal of the deck and enclosed breezeway and to immediately file a certificate of pending litigation against the title to the Property after filing of the Notice of Civil Claim.

CHIEF ADMINISTRATIVE OFFICER’S COMMENTS:

I concur with the recommendation.

DIRECTOR OF PROTECTIVE SERVICE’S COMMENTS:

I concur with the recommendation.

PURPOSE OF REPORT:

To inform Council of a residential property with non-permitted construction in contravention of sections 6.1, 24.2 and 24.3 of the Building Bylaw and sections 3.4.1 and 7.3.4 of the Zoning Bylaw and to request Council to pass a resolution directing staff to file a notice against the title to Ardeshir Ourgie Seisan’s and Rohanieh Dehghan (“Ruhi") Manshadi’s Property under section 57 of the Community Charter.

---

¹ Attached as Appendix 1 to this report is a copy of the results of a Land Title search of the Property.

BACKGROUND DISCUSSION:

On June 1, 2016, following receipt of a bylaw complaint², the Building Official posted a Stop Work Order (“SWO”) under the Building Bylaw as construction to close in a breezeway and extend a deck was underway. A portion of the permitted deck was added without a building permit. The lower deck has areas that put it well over the 24” above grade requirement that triggers a building permit. The breezeway design was initially approved during the permit process; however, closing it in would put the building over the allowable floor space ratio.³ The building was inspected and approved with an unenclosed breezeway and a smaller deck as per the issued permit. A follow-up letter was not drafted as Mr. Seisan contacted the Building Official the afternoon the SWO was posted. At this time and due to the conversation on June 16, 2016, it was reasonably understood compliance would not be difficult to obtain. Drawings of the non-permitted construction are included as Appendix 4 of this report. At the time the SWO was posted, staff informed the Property owners the work being done would require a building permit and likely a variance of some sort to allow them to continue. They were referred to Development Services for guidance and assistance.

A building permit application was received June 27, 2016 seeking approval for enclosing the breezeway and the deck construction.⁴

On June 30, 2016 staff wrote to and informed Mr. Seisan that the Town would not issue a building permit for the deck as the deck required a development permit and possible variances for lot coverage and the enclosed breezeway exceeded the permitted floor space ratio.⁵

---

² Attached as Appendix 2 to this report is a copy of a bylaw complaint with redactions made in accordance with the Freedom of Information and Protection of Privacy Act.

³ The maximum floor space ratio within the R -1 B Zone is .42: section 7.3.4 of the Town of View Royal’s Zoning Bylaw No. 900, 2014 (“Zoning Bylaw”).

Attached as Appendix 3 to this report is a August 24, 2011 Town of View Royal (“Town”) staff e-mail to Ruhi Manshadi in which staff informed Ruhi Manshadi what is considered living space and how floor area or floor space is calculated.

See section 2.2 of the Zoning Bylaw for the definition of “Floor Space” which means “the area of all basements, cellars, storeys, and half storeys of all enclosed portions of all principal and accessory buildings on a lot as measured to the interior of the outside wall”.

See also the Zoning Bylaw section 2 definition of “Floor Space Ratio” which means “the ratio which the total floor space of all buildings on a lot bear in relation to the area of the lot on which the buildings are located. …”

Section 2 of the Town of View Royal’s Land Use Bylaw 1990, No. 35 defines “Enclosed Portion of a Building” to mean “a roofed part of a building that has more than 60% of the total perimeter enclosed by wall, door, glass, post, pier, or screen, except a railing required by the British Columbia Building Code is not considered part of the perimeter enclosure”.

See further section 3.4.1 of the Zoning Bylaw which provides that “[w]here a Zone includes a regulation entitled “floor space ratio” the floor area of all buildings on the lot divided by the total area of the lot must not exceed the ratio identified for the Zone in which the lot is located.

⁴ Attached as Appendix 5 is a copy of the June 27, 2016 building permit application.

⁵ See Dawn Miles’ June 30, 2016 letter to Mr. Seisan attached as Appendix 6.

In follow-up to staff’s June 30, 2016 letter and the SWO, on July 7, 2017 staff conducted a site visit to review whether the unlawful construction and enclosure of the breezeway and deck was removed.⁶ On July 7, 2017 staff reiterated the requirements for the work undertaken. An email was received by staff from Mrs. Manshadi on July 11, 2017 regarding the site visit. In the email she questioned the requirement for the permit on the deck. A phone call from staff gave a clear understanding of why the deck was subject to the permit process and why it would exceed lot coverage.

On July 17, 2017 Development Services advised Mrs. Manshadi the construction would require a rezoning application due to the increase in floor area⁷.

On August 30, 2017 Mrs. Manshadi emailed the Director of Development Services requesting a variance rather than a rezoning application.

On September 5, 2017, the Director of Development Services replied and instructed a rezoning was the only tool available, as a variance does not address increased floor area.⁸

On September 7, 2017 Mrs. Manshadi replied to the Director of Development Services indicating she would like to proceed with a rezoning application.

A follow up letter from the Building Department was sent on September 18, 2018⁹. No written reply, either email or regular mail was received.

On September 28, 2018, a member of the Development Services team attended the site to review issues in support of an expected application.

On May 27, 2020 staff was made aware that the house was now listed for sale¹⁰. A site visit revealed the SWO notice was no longer posted. The June 1, 2016 SWO was affixed again to the unlawful enclosure of the breezeway and unlawful construction of the deck.

To date no applications for variances or rezoning have been received by staff.

---

⁶ See Gary Faykes’ June 21, 2017 letter to Mr. Seisan and Mrs. Manshadi attached as Appendix 7.

⁷ See James Davison's July 17, 2017 e-mail to Ruhi Manshadi attached as Appendix 8.

⁸ See Lindsay Chase's September 5, 2017 e-mail in reply to Ruhi Manshadi’s August 30, 2017 e-mail attached as Appendix 9.

⁹ See Gary Faykes’ September 18, 2018 letter to the Property owners attached as Appendix 10.