ELBOYA HEIGHTS Community Association

Transcription

1 The Elboya/Park Hill Caveat - The Details Background The City of Calgary was the original planner and developer of a portion of the Elboya and Park Hill Community which was previously known as the Stanley Park Building Scheme in At that time, the City put forth a set of constraints or restrictions by which development in the area would be governed (this pre-dates the current Land Use Bylaw). Those restrictions were registered on the title of each lot in the area in the form of a Caveat (or Restrictive Covenant) this caveat forms a binding agreement into which the property owner enters upon the purchase of a lot in the affected area. For your convenience, we have plotted the area of the Elboya and Park Hill communities which are affected by the Caveat in the maps below (outlined in red). Map 1 Northern Portion of Caveat Area Page 1 of 6

2 Map 2 Southern Portion of Caveat Area If you check your land title, you will find an instrument registered against it with the number 4345GS dating from The character of Elboya/Park Hill in the above areas has been defined and preserved by the Caveat registered by the City on all the properties since However, the City of Calgary no longer has any legal status vis a vis the Caveat and will not enforce it. Indeed, the City may even approve a proposed development that complies with the existing Land Use Bylaw even if it does not comply with the provisions of the Caveat. Each property owner affected by the Caveat has both the benefit and the burden of the Caveat and each land owner is responsible to ensure the Caveat is complied with. The very nature of the Caveat is negative it is intended to prevent something from happening hence the alternative term Restrictive Covenant. Page 2 of 6

3 Highlights of the Elboya/ Park Hill Caveat: Allows for only one single family dwelling (this means that semi-detached or multi family dwellings are not permitted) Allows for only one private attached or detached garage per lot that conforms to the style and finishing of the home Prohibits any subdivision that would reduce frontage or lot area (this means that splitting a lot into two or more lots is not permitted) Specifies minimum home sizes for single and two story homes Specifies the minimum front set back from the front property line Limits use to private residential (no business or trade) (this means that collecting lots to construct a larger commercial development is not permitted) The caveat does not address exterior architectural elements such as style, materials, colour, fencing, driveways, patios, landscaping and so forth... The Value of the Caveat: Why does the Caveat represent any value to the Community and to you as a Land Owner? The Caveat serves to maintain the character and nature of the portion of the community it affects. It offers the knowledge and security to land owners that developments outside of the parameters of the Caveat must be rejected by all land owners who are a party to the Caveat. If we, as a community and land owners, do not enforce the Caveat, it may be unenforceable on future development applications. In short we would, in all likelihood, lose some of the important elements provided by the Caveat on future developments in the affected area of Elboya and Park Hill. For example, the front setback provides a landscape buffer that complements the unique, architectural diversity in our community and allows residents a higher degree of privacy than offered in many other communities. Additionally the Caveat prevents sub-division and only allows single family dwellings, thus loss of the Caveat may also open the door for subdivision and higher density redevelopment of lots in the affected area which possess the current R- C1 land use. This is not to say that the wider Community has not been supportive of higher intensity/density we have in fact; however, the areas where high density is contemplated and supported are on the Community boundaries and have not yet been within the core established areas of the community covered by the 4345GS Caveat. Interpretation: Unless otherwise specified in the caveat, the Elboya Heights (EHCA) relies on the wording of the City of Calgary Land Use Bylaw (LUB) that applies to R-C1 low density residential districts when reviewing plans for caveat compliance. Page 3 of 6

4 LUB definitions, methods of calculation (e.g. parcel/lot width) and rules (e.g. relating to projections into set back areas) that are in effect at the time that the EHCA conducts its review and approves the project will apply. These definitions, methods and calculations are subject to change. The EHCA rounds to two decimal places when converting metric to imperial measurements to determine caveat compliance. Enforcement: Because the City of Calgary has long since concluded its role as developer of the community, it will not enforce the Elboya/Park Hill Caveat. As a result, every property owner in Elboya/Park Hill with instrument 4345GS registered on their land title is subject to the Caveat and also responsible for its enforcement. Volunteer members who sit on the Elboya Heights (EHCA) Board and Development Committee attempt to ensure that all development within Elboya/Park Hill for land tied to the Caveat continues to be in accordance with the Caveat. However, each property owner affected by a proposed development should satisfy themselves that the proposed development complies with the Caveat. Neither the EHCA nor the EHCA Development Committee, nor its members accepts any legal responsibility for enforcing the Caveat and their role is advisory only. Enforcement Example: Below is an example of a Caveat enforcement which occurred in the Britannia Community Britannia is adjacent to Elboya. The Britannia Caveat, while having some additional parameters, possesses many of the same core provisions as the Elboya/ Park Hill Caveat. In 1995, a home owner in Britannia was granted a development permit from the City of Calgary that allowed an extension of his home which did not comply with the side yard requirements set out in the Britannia Caveat. An application was made to the Alberta Court of Queen s Bench by community residents to prevent the development from proceeding. The plaintiffs were successful in obtaining a permanent injunction prohibiting the development from proceeding. When deciding in favour of the community, Madam Justice Rawlins of the Court of Queen s Bench clearly indicated that the Britannia Caveat constituted a valid restrictive covenant which was enforceable by other community members. She further found that there was no conflict between the City s land use bylaws and the Caveat given that the City bylaws only set permissible, not obligatory, development standards. Thus even though the City bylaws may permit certain building schemes, the Britannia Caveat may not and it is this Caveat that must be complied with when building in Britannia. Justice Rawlins also indicated that if the Caveat was to be maintained it would have to be diligently enforced to ensure compliance. Page 4 of 6

5 Based on the above example, the Elboya Heights has established a Caveat Preservation Fund. The fund will be built up through the collection of money from area property owners whose land titles have the 4345GS Caveat registered. The purpose of the fund is to defend a breach of the Caveat in a court of law if necessary. Every property owner subject to the Caveat is requested to contribute monies to the Caveat Preservation Fund. The funds are held in trust with legal counsel. The Elboya Heights Communication Association will: Provide information about the caveat and advice at the early stages of planning as to what is required to comply with the caveat. A preliminary review of the plans may be performed if requested by the home owner or designer/architect Review plans when notified of the application by the City, and ideally before the development permit is approved Communicate with the homeowner or designers/architects if the plans as reviewed do not comply File appeals with the City of Calgary s Subdivision and Development Appeal Board Coordinate individual homeowners within the community to act as plaintiffs to defend the caveat, should a breach occur or be imminent. It must be emphasized that we hope in the vast majority of cases, the plans will be adjusted to comply with the caveat without the requirement of legal action. Elboya/Park Hill Approval Process If you are planning to build a new home, or are renovating such that the exterior would be altered beyond new cladding, roofing or window/door installation, you should first research the Caveat as it is registered on your own property title and then submit your preliminary plans to the EHCA before proceeding with your Development or Building Permit application. In addition to the City of Calgary permit application requirements, the EHCA requires a copy of the plans with the caveat setbacks properly drawn in to define the allowable building footprint. This site plan should include all proposed projections into the setback areas, including decks, as well as height if it is a perimeter lot. We also require notification of any amendments or modifications to the site plan. Plans submitted to the EHCA may be shared with other members of the community, if requested. Assuming that the plans comply with the Caveat, a compliance letter stating that the EHCA has no objections to the specified development plans will be issued. The compliance letter will be deemed to be withdrawn if the plans are subsequently modified or the building does not conform to the approved plans. The compliance letter is not a legal document. The final responsibility for compliance falls to the Page 5 of 6

6 property owner's: all residents of Elboya/Park Hill with the Caveat on their property share responsibility for enforcement. The EHCA also strongly advises that residents planning to build or renovate discuss their plans with their immediate neighbours and obtain signatures of support. Individuals also have the right to file an appeal with Calgary s Subdivision and Development Appeal Board and may argue that the proposed development is out of context for their street on a variety of grounds. It is the individual responsibility of residents to protect their specific property from adjacent encroaching redevelopment or tree removal that could result in loss of privacy and shading. The EHCA does not address these concerns. We encourage neighborly dialogue and compromise to resolve these issues. A call to the City at 311 can help you determine the City s Infill Guidelines that apply and what approvals may be necessary for the project. The EHCA encourages the retention and protection of trees on private land. Note that only trees located on the City boulevard allowance are protected from damage or removal by City bylaw. Elboya/Park Hill is a desirable area because the Caveat has been maintained; new residents should be aware that the Caveat exists because it is registered on their title. Designers and architects have a responsibility to prepare plans that comply with the Caveat as well as the City of Calgary Land Use By-law. Realtors, real estate lawyers, property management firms, rental management firms and indeed any real property professionals have a professional duty to inform potential residents of Elboya/Park Hill of the existence of the caveat before their clients make legal and binding documents with respect to this community. Homeowners have a responsibility to ensure that Caveat restrictions are adhered to should they enter into lease agreements for their properties. Links: s Elboya/Park Hill Caveat in PDF Crump vs Kernahan Judgement in PDF Go to and follow the links through Departments to Planning, Development & Assessment to Development & Building Approvals for information on the permit process and the LUB. See the Parks department brochure: Tree Protection Plan During Development. Page 6 of 6