Some decisions about development proposals are challenging

9762 Third Street & 9763 Fourth Street

Some decisions about development proposals are challenging. The proposed development at 9762 Third Street & 9763 Fourth Street is one of those cases. This is currently a privately owned narrow parking lot running between Fourth and Third Streets. It is currently zoned C1 Downtown Commercial which gives the owner the right to build up to a 4-storey building with 0-metre setbacks from the properties to the north and south.


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The developer is proposing 4-storeys of 27 residential units with a partially underground parking area with 17 parking spaces and 2 live/work units on the ground floor, one on Fourth St. and one on Third St. Because the parking area is only partially underground this is technically a 5-storey building and requires a variance for the number of storeys, although the height of the building is less than what the zoning allows. The C1 zone requires commercial on the ground floor, so the live/work units also require a variance. The C1 zone also requires that 10% of the units be 3-bedroom and located on the 1st and 2nd floors. Since technically the underground parking area is the 1st floor, this development also requires a variance to allow some of the 3-bedroom units to be located above the 2nd floor. Lastly, the parking area covers 59.6% of the lot area which is bigger than the 50% allowed and therefore requires a variance. The bylaw requires 29 parking spaces and the development will make payment in-lieu for 12 parking spaces.

This is a pretty challenging property to develop because of the long and narrow shape. I’m not opposed to seeing this property redeveloped, but I expressed concerns about the design particularly as the building on Third St. goes straight up to 4 storeys with no setbacks. The Advisory Planning Commission (APC) reviewed the proposal and made several recommendations to improve the design. The revised proposal came back to Council for review and then a public notice was issued to inform the community about the proposed variances.

A few days before the meeting where Council would decide whether to approve the variances and authorize the development permit 8 emails were received from residents of nearby condos to the south, the Watermark (9751 Fourth St.) and Livingston Lofts (2460 Bevan Ave.), objecting to the variances. Several of these residents came to the meeting and spoke passionately during public participation about their objections.

The main concerns expressed were the following:

  • Loss of natural light, views and air circulation in the Watermark;
  • 5-storeys should not be permitted;
  • The ground floor should be commercial not live/work units;
  • Availability of parking in the downtown is a concern and the site should remain as a parking lot;
  • Loss of privacy because the building will overlook north-facing skylights in bathrooms and bedrooms in the Livingston Lofts; and
  • The proposed development does not provide enough parking for the building.

This is where things get challenging. I’m sympathetic to the concerns of the residents, but this parcel has been zoned to allow a mix-use development for a long time. The owner has a right to redevelop the property in a manner consistent with the zoning. So, expecting it to remain a parking lot isn’t reasonable.

Technically the building is 5-storeys but from the outside it looks like a 4-storey building and its height is 2 feet less than the zoning allows. This doesn’t seem to be a substantial concern.

The architect made efforts to mitigate impacts on units in the Watermark in the design of the proposed development. The Watermark is also built with no setback from the property to the north, however, the residential units in the 2nd and 3rd floors are setback about 12 feet from the property line (shown below). The design of the proposed building also includes courtyards which align with the middle and corner units in the Watermark to soften the impact of the proposed development (shown below). Can the design be altered to provide more separation from the units in the Watermark? Yes, but not without reducing the number of units in the development. Should Council require the developer to make such changes? The variances being requested have nothing to do with this concern. Neither the OCP nor the Downtown Local Area Plan include guidelines which require the design to address these concerns. It is also not reasonable to expect that nothing would ever be built there which might limit the views from the Watermark. Council does have the discretion to deny the requested variances, but the owner could come back with a very similar design that doesn’t require any variances.  I’m sympathetic to this concern and the APC did consider this in their review of the design.

The concern about loss of privacy for units in the Livingston Lofts is challenging. The picture below shows many north-facing skylights which are at a steep angle potentially offering views into these units from the upper floors of buildings to the north. As can be seen, Livingston Lofts is built with zero setback from the parcel to the north with a windowless firewall extending to the 2nd storey. There is a 1-storey building between Livingston Lofts and the proposed development and when this building eventually redevelops there will be a similar concern about loss of privacy. Unfortunately, nobody seems to have thought about that when Livingston Lofts was built.

As can be seen in the perspective view below, the proposed development doesn’t have any windows on the south side which overlook Livingston Lofts. Some units have balconies where the side-view may overlook these skylights and the architect offered to revise the design to install privacy screens to prevent this. This would seem to effectively address this concern about loss of privacy.

The concern about the development not providing enough parking is one I sympathize with. However, the variance is for a bigger parking area and since it is not visible from the outside seems reasonable. To deny this variance would mean even less parking spaces for the development. Payment in-lieu for 12 spaces as proposed is allowed under the bylaw and does not require any approval.

At the May 28th Council meeting the decision on this development was tabled until June 18th to allow more time to consider this late arriving information and so that all Council members would be present for the decision.

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