History of the 2007 Zoning Bylaw Changes
In March, 2005 (then) Mayor Causton identified a problem with the way floor area was calculated in applying limits imposed by the Zoning Bylaw. He told Council
The problem that exists ... is when the floor space of an under height basement, for example, is included as liveable floor space under the provisions of the Zoning Bylaw and owners are restricted in their ability to add liveable floor space without going to the great expense of excavating basements.
(Oak Bay Council Minutes, March 29, 2005)
Mayor Causton specified that a Floor Area Ratio Committee be formed “comprised of members of staff, Council, the public, a designer, and a real estate professional.” However, when formed on April 25, 2005, the committee was constituted with only (then) Councillor Nils Jensen,the Director of Building and Planning, an architect and a realtor.
The committee members drawn from outside of the Council and staff cannot be considered objective given their participation in the real estate development industry. Therefore, contrary to the terms set out by Mayor Causton, there was no public participation in the committee that eventually recommended the changes to the Zoning Bylaw.
Committee Mandate—Under Height Basements and Overly Large Houses on Large Lots
The original mandate of the committee was to address the problem identified by Mayor Causton with respect to under height basements. In June, 2005 the issue of “overly large and intrusive” houses being built on large lots was added to the mandate.
In 2006 as the committee continued its work, the Director of Building and Planning warned Council
Of primary importance to the committee is the need to address this issue without opening the door to overly large houses that would not fit into a streetscape of existing smaller lots and houses.(Memo to Council, March 16, 2006 from the Director of Building and Planning)
This was the first indication the committee recognized potential negative impacts on areas of Oak Bay with small lots—areas that encompass most of the municipality.
Concerns About Impact of Fixed Floor Area Limits on Small Lots
By May, 2006 the committee was considering fixed floor area limits. The Municipal Administrator expressed concerns about the impact of fixed limits on small lots, telling Council
If you are going to maximize your lot coverage on the main floor, you no longer have to do something architecturally pleasing such as incorporating the second floor into the roof structure through the use of dormers. You can just add that second floor straight up, at maximum site coverage.
And for a lot this size, you can achieve all this extra mass without running afoul of the lot coverage, side setback or occupiable height limits. For a smaller lot, you might or might not have some trouble with occupiable height, but otherwise you can achieve a similar result as well.
This is a major policy change, he noted, and an unnecessary one because no one is complaining about the size of new house you can build under the current bylaw – in fact, if there has been any complaint, it is that new houses can be built too big. Under this approach, even larger houses would be permitted.
(Oak Bay Committee of the Whole Minutes, May 15, 2006)
Regardless of this warning, the committee brought forward recommendations to change to fixed floor area limits for lots zoned RS-4 and RS-5.
Public Hearings on the Recommendations—No Mention of Impact on Small Lots
Public Hearings (required for changes to the Zoning Bylaw) were held on December 11, 2006 and June 11, 2007 to allow public comment on the committee recommendations. The notices of these hearings mentioned only the issue of under height basements as the rationale for the changes, saying
For an older house, however, in order to remove existing [under height basement] floor space from the calculation and thereby create some scope to add more floor area elsewhere, an owner will sometimes consider either excavating an existing shallow basement down to a depth at which it does not count as floor space, or building up an existing floor to lower the floor-to-ceiling height. To the extent that such changes are expensive, they can act as an incentive to demolish the older house and construct a new one, which is not always a desirable by-product of the regulation.
(Oak Bay Notices of Public Hearing, December 11, 2006 and June 11, 2007)
A public meeting was also held on April 24, 2007. The notice of this meeting stated the rationale for the bylaw changes as addressing the issue of under height basements and overly large homes on large lots.
Proposed changes are designed to introduce greater fairness for owners of older homes, and at the same time encourage renovation or additions as an alternative to demolition. The proposed changes would also have the effect of limiting the size of homes on larger lots, at least for properties located in the RS-4 and RS-5 Residential Zones.
(Oak Bay Notice of Public Meeting, April 24, 2007)
In spite of the absence of any indication that the proposed changes to the Zoning Bylaw would allow much larger houses on small lots, at least one resident submitted a written comment to the December 11, 2006 public hearing pointing that out. She went even further, explaining that far from encouraging people to renovate instead of demolishing old houses and rebuilding, the changes would provide a strong incentive to do exactly the opposite. Describing a fairly typical bungalow on a 5000 sq. ft. lot with a grade-level basement, she wrote
Under the proposed new bylaw, the house is basically at the limit; if the owners want to add more than 83 sq. ft. they need a variance. ...
In addition, though, the new bylaw would give the owners an option they don't have at present. If they demolish the house, they can then build a 3875 sq. ft. house as long as they dig the basement down at least 2.6 ft. ...
A lot of money can be made this way, and many owners would act on it.
But demolition of character homes, higher density, and huge new houses on small lots are not consistent with the character of Oak Bay and are not what most residents want.
(Oak Bay Public Comment submitted to the December 11, 2006 Public Hearing)
The same resident pointed out that there are numerous large character homes on double lots, and the new bylaw would create a strong incentive to demolish these houses and build two large houses on the individual lots.
Council Adoption of the Proposed Bylaw Changes
Oak Bay Council adopted the proposed bylaw changes in a special meeting convened immediately after the June 11, 2007 Public Hearing.
Council was aware that the changes to the Zoning Bylaw could create problems.
The complexity of the issues related to floor area and the potential that the proposed amendments may need to be adjusted in the future, should they be adopted by Council, was acknowledged by members of the Committee and staff.
(Oak Bay Committee of the Whole Minutes, May 22, 2007)
The problem that exists ... is when the floor space of an under height basement, for example, is included as liveable floor space under the provisions of the Zoning Bylaw and owners are restricted in their ability to add liveable floor space without going to the great expense of excavating basements.
(Oak Bay Council Minutes, March 29, 2005)
Mayor Causton specified that a Floor Area Ratio Committee be formed “comprised of members of staff, Council, the public, a designer, and a real estate professional.” However, when formed on April 25, 2005, the committee was constituted with only (then) Councillor Nils Jensen,the Director of Building and Planning, an architect and a realtor.
The committee members drawn from outside of the Council and staff cannot be considered objective given their participation in the real estate development industry. Therefore, contrary to the terms set out by Mayor Causton, there was no public participation in the committee that eventually recommended the changes to the Zoning Bylaw.
Committee Mandate—Under Height Basements and Overly Large Houses on Large Lots
The original mandate of the committee was to address the problem identified by Mayor Causton with respect to under height basements. In June, 2005 the issue of “overly large and intrusive” houses being built on large lots was added to the mandate.
In 2006 as the committee continued its work, the Director of Building and Planning warned Council
Of primary importance to the committee is the need to address this issue without opening the door to overly large houses that would not fit into a streetscape of existing smaller lots and houses.(Memo to Council, March 16, 2006 from the Director of Building and Planning)
This was the first indication the committee recognized potential negative impacts on areas of Oak Bay with small lots—areas that encompass most of the municipality.
Concerns About Impact of Fixed Floor Area Limits on Small Lots
By May, 2006 the committee was considering fixed floor area limits. The Municipal Administrator expressed concerns about the impact of fixed limits on small lots, telling Council
If you are going to maximize your lot coverage on the main floor, you no longer have to do something architecturally pleasing such as incorporating the second floor into the roof structure through the use of dormers. You can just add that second floor straight up, at maximum site coverage.
And for a lot this size, you can achieve all this extra mass without running afoul of the lot coverage, side setback or occupiable height limits. For a smaller lot, you might or might not have some trouble with occupiable height, but otherwise you can achieve a similar result as well.
This is a major policy change, he noted, and an unnecessary one because no one is complaining about the size of new house you can build under the current bylaw – in fact, if there has been any complaint, it is that new houses can be built too big. Under this approach, even larger houses would be permitted.
(Oak Bay Committee of the Whole Minutes, May 15, 2006)
Regardless of this warning, the committee brought forward recommendations to change to fixed floor area limits for lots zoned RS-4 and RS-5.
Public Hearings on the Recommendations—No Mention of Impact on Small Lots
Public Hearings (required for changes to the Zoning Bylaw) were held on December 11, 2006 and June 11, 2007 to allow public comment on the committee recommendations. The notices of these hearings mentioned only the issue of under height basements as the rationale for the changes, saying
For an older house, however, in order to remove existing [under height basement] floor space from the calculation and thereby create some scope to add more floor area elsewhere, an owner will sometimes consider either excavating an existing shallow basement down to a depth at which it does not count as floor space, or building up an existing floor to lower the floor-to-ceiling height. To the extent that such changes are expensive, they can act as an incentive to demolish the older house and construct a new one, which is not always a desirable by-product of the regulation.
(Oak Bay Notices of Public Hearing, December 11, 2006 and June 11, 2007)
A public meeting was also held on April 24, 2007. The notice of this meeting stated the rationale for the bylaw changes as addressing the issue of under height basements and overly large homes on large lots.
Proposed changes are designed to introduce greater fairness for owners of older homes, and at the same time encourage renovation or additions as an alternative to demolition. The proposed changes would also have the effect of limiting the size of homes on larger lots, at least for properties located in the RS-4 and RS-5 Residential Zones.
(Oak Bay Notice of Public Meeting, April 24, 2007)
In spite of the absence of any indication that the proposed changes to the Zoning Bylaw would allow much larger houses on small lots, at least one resident submitted a written comment to the December 11, 2006 public hearing pointing that out. She went even further, explaining that far from encouraging people to renovate instead of demolishing old houses and rebuilding, the changes would provide a strong incentive to do exactly the opposite. Describing a fairly typical bungalow on a 5000 sq. ft. lot with a grade-level basement, she wrote
Under the proposed new bylaw, the house is basically at the limit; if the owners want to add more than 83 sq. ft. they need a variance. ...
In addition, though, the new bylaw would give the owners an option they don't have at present. If they demolish the house, they can then build a 3875 sq. ft. house as long as they dig the basement down at least 2.6 ft. ...
A lot of money can be made this way, and many owners would act on it.
But demolition of character homes, higher density, and huge new houses on small lots are not consistent with the character of Oak Bay and are not what most residents want.
(Oak Bay Public Comment submitted to the December 11, 2006 Public Hearing)
The same resident pointed out that there are numerous large character homes on double lots, and the new bylaw would create a strong incentive to demolish these houses and build two large houses on the individual lots.
Council Adoption of the Proposed Bylaw Changes
Oak Bay Council adopted the proposed bylaw changes in a special meeting convened immediately after the June 11, 2007 Public Hearing.
Council was aware that the changes to the Zoning Bylaw could create problems.
The complexity of the issues related to floor area and the potential that the proposed amendments may need to be adjusted in the future, should they be adopted by Council, was acknowledged by members of the Committee and staff.
(Oak Bay Committee of the Whole Minutes, May 22, 2007)