The Estevan precedent & the fallacy of "affordable housing"
Councillors’ stated reasons for permitting duplex development
Councillors started considering the proposal based on faulty reasoning about the supposed benefits of duplex development. From the Council meeting on July 25, 2012 when the the proposal to create a duplex zone for 2280 Estevan Avenue was presented,
Councillor Green spoke in support of alternative housing options and addressing housing affordability.
(Oak Bay Council Minutes, July 25, 2012)
The duplex proposal under consideration has a break-even sale price of about $800,000 per unit. Can that really be considered “affordable” housing?
Councillor Ney spoke in support of the proposed use, design and the appropriate increase in density.
(Oak Bay Council Minutes, July 25, 2012)
Councillor Copley noted that there was a growing demand for duplexes and that the old Official Community Plan would make some allowance for this kind of use.
(Oak Bay Council Minutes, July 25, 2012)
Discussion on the Estevan Avenue proposal resumed at the Committee of the Whole meeting on September 10, 2012, where it was recorded that
Concerns were raised regarding contemplating spot zoning one lot to a duplex use prior to undergoing the overall renewal of the Official Community Plan, where full public consultation on all aspects of land use in the community would result. It was also pointed out that a rezoning of this kind could lead to additional applications prior to the new OCP process being undertaken.
(Oak Bay Committee of the Whole Minutes, September 10, 2012)
However, Council shrugged this off, because
... the majority of members felt that there is a growing demand for duplexes or other alternate housing options to single family dwellings, and that the rezoning application for the densification proposed in the context of the specific property should be moved forward to the next stage.
(Oak Bay Committee of the Whole Minutes, September 10, 2012)
No reference was made to when and how the “growing demand for duplexes” was brought to Council’s attention.
Only Councillor Herbert opposed the motion to instruct staff to bring forward a bylaw to create duplex zoning for the Estevan Avenue development.
Despite claims to the contrary, this action was precedent-setting.
At least one Councillor has claimed the spot-zoning action was not bound by the OCP, because
Staff had been directed to draft a bylaw SPECIFIC TO THIS SITE and not to be applied anywhere else or generally in Oak Bay. Otherwise, it would be inconsistent with the existing OCP, which states clearly that duplexes should be considered on a “case by case” basis.
(Councillor Cairine Green, October 14, 2012)
However, zoning cannot be created for application only to a specific property. If a duplex zone is created in response to a specific developer proposal, it will set a precedent and other developers can (and will) come forward with requests to rezone properties to that zone. If the arguments supporting these requests are similar to those provided in the original application, Council will have little choice but to approve them. To deny them would risk legal action for being arbitrary in the application of the new zone, all the more so because the OCP does not address the issue.
The Director of Building and Planning acknowledged this in a report to Council regarding a second request for “spot-zoning” to permit duplex construction:
Careful consideration of rezoning to duplex zones needs to have tight controls on density and massing of buildings. As duplex zones have not been permitted in nearly fifty years one needs to consider precedent setting situations as other applications will follow. This application is evidence that further applications will follow.
(Memo to Council, October 16, 2012 from Roy Thomassen,
Director of Building and Planning)
Councillors started considering the proposal based on faulty reasoning about the supposed benefits of duplex development. From the Council meeting on July 25, 2012 when the the proposal to create a duplex zone for 2280 Estevan Avenue was presented,
Councillor Green spoke in support of alternative housing options and addressing housing affordability.
(Oak Bay Council Minutes, July 25, 2012)
The duplex proposal under consideration has a break-even sale price of about $800,000 per unit. Can that really be considered “affordable” housing?
Councillor Ney spoke in support of the proposed use, design and the appropriate increase in density.
(Oak Bay Council Minutes, July 25, 2012)
Councillor Copley noted that there was a growing demand for duplexes and that the old Official Community Plan would make some allowance for this kind of use.
(Oak Bay Council Minutes, July 25, 2012)
Discussion on the Estevan Avenue proposal resumed at the Committee of the Whole meeting on September 10, 2012, where it was recorded that
Concerns were raised regarding contemplating spot zoning one lot to a duplex use prior to undergoing the overall renewal of the Official Community Plan, where full public consultation on all aspects of land use in the community would result. It was also pointed out that a rezoning of this kind could lead to additional applications prior to the new OCP process being undertaken.
(Oak Bay Committee of the Whole Minutes, September 10, 2012)
However, Council shrugged this off, because
... the majority of members felt that there is a growing demand for duplexes or other alternate housing options to single family dwellings, and that the rezoning application for the densification proposed in the context of the specific property should be moved forward to the next stage.
(Oak Bay Committee of the Whole Minutes, September 10, 2012)
No reference was made to when and how the “growing demand for duplexes” was brought to Council’s attention.
Only Councillor Herbert opposed the motion to instruct staff to bring forward a bylaw to create duplex zoning for the Estevan Avenue development.
Despite claims to the contrary, this action was precedent-setting.
At least one Councillor has claimed the spot-zoning action was not bound by the OCP, because
Staff had been directed to draft a bylaw SPECIFIC TO THIS SITE and not to be applied anywhere else or generally in Oak Bay. Otherwise, it would be inconsistent with the existing OCP, which states clearly that duplexes should be considered on a “case by case” basis.
(Councillor Cairine Green, October 14, 2012)
However, zoning cannot be created for application only to a specific property. If a duplex zone is created in response to a specific developer proposal, it will set a precedent and other developers can (and will) come forward with requests to rezone properties to that zone. If the arguments supporting these requests are similar to those provided in the original application, Council will have little choice but to approve them. To deny them would risk legal action for being arbitrary in the application of the new zone, all the more so because the OCP does not address the issue.
The Director of Building and Planning acknowledged this in a report to Council regarding a second request for “spot-zoning” to permit duplex construction:
Careful consideration of rezoning to duplex zones needs to have tight controls on density and massing of buildings. As duplex zones have not been permitted in nearly fifty years one needs to consider precedent setting situations as other applications will follow. This application is evidence that further applications will follow.
(Memo to Council, October 16, 2012 from Roy Thomassen,
Director of Building and Planning)