"THE COMPLAINT - A"
A Community’s Complaint AND PLEA FOR PROVINCIAL ASSISTANCE Prepared by The Planning Committee of the STRATHCONA CENTRE COMMUNITY LEAGUE Edmonton, Alberta Community Complaint: The City of Edmonton does not enforce its own Zoning Bylaw 12800. The Planning and Development Department neither provides sufficient manpower nor has an effective process by which it can confirm compliance with Development Permit conditions of new developments in older, central Edmonton neighbourhoods. The department’s neglect allows unchecked violations of land use regulations regarding building size, occupancy, and respect for property rights of adjacent landowners. These violations are not one-time incidents that just happen and can be forgotten. They continue to offend the surrounding community as long as the development exists. The City is empowered by the Municipal Government Act to enforce the laws it enacts. Edmonton’s citizens rightfully expect enforcement of the Zoning Bylaw but Planning and Development systematically betrays that trust. MINISTER DANYLUK, we believe that the City of Edmonton has betrayed its statutory duty under the Act. We beg you to order the City to restore this essential municipal government function. Submitted to: Alberta Municipal Affairs and Housing the Honourable Ray Danyluk, Minister Submitted by: Strathcona Centre Community League Planning Committee Rob McDonald, Chair In cooperation with: Edmonton Federation of Community Leagues Mature Neighbourhoods Action Group Central Area Council of Community Leagues March 18, 2008 A2 PERFORMANCE REPORT Edmonton’s Planning and Development Department has allowed the quality of its core functions to deteriorate. Clients of the department are frequently faced with the following: Sloppy Development Permits are issued, allowing Zoning Bylaw violations; Discretionary variances are allowed by Development Officers but are not declared on Development Permits; No action results from citizen complaints and no response to complaints is given; Frequency of field inspection, both spot-checks and those resulting from complaints, is utterly inadequate; Only “squeaky wheels” get action and then only from Planning and Development management personnel; Without help from an active Planning Committee within their Community League, residents of Edmonton have little hope of stopping non-complying development. Such dismal performance from a public regulatory agency is unacceptable. The property rights of citizens are being trampled. Community League volunteers alone cannot continue to police infill development in our neighbourhoods. MINISTER DANYLUK, please intervene: Please inform the City of Edmonton that, to fulfill its duty under the Municipal Government Act, it must immediately and effectively enforce its Zoning Bylaw. Strathcona Centre Community League A3 INTRODUCTION The Strathcona Centre Community League appointed me Chair of its Planning Committee in 2006. I’ve lived in Strathcona, near Mill Creek, most of my life. In the early 1980’s, I participated in the community workshops that shaped the Scona East Area Redevelopment Plan, which has since been folded into the Strathcona Area Redevelopment Plan Lately, at the earliest signs of new, infill housing construction about to occur in Strathcona, my neighbours become alarmed. They call me to ask if a new house or garage or apartment building is allowed to be as high, wide, or deep as it appears to be shaping up. Often, it’s true - new construction doesn’t fit in with the older, usually smaller houses on the street. The clash is regrettable but not illegal. Residential fashions have changed, generally for the larger. Frequently though, it’s obvious that one or more Zoning Bylaw regulations are being violated. As a Community League volunteer, I’m usually doing my research into the problem developments in the evenings and on weekends. I rarely get a chance to talk to the construction workers or to see any drawings. Sometimes nearby residents can provide me the development owner’s name. Unfortunately, developers are often already aware that complaints have been made and they rarely return phone calls. When the community and I can’t resolve perceived Zoning Bylaw infractions by discussing them with the landowner, then calls to P&D must be made. While I have developed effective paths of contact through the department labyrinth, most citizens are baffled by a complex maze of responsibilities, which seems invariably to end in frustration and disappointment. It’s not fair. Please help us fix it. Rob McDonald Strathcona GLOSSARY P&D Planning and Development Department DO Development Officer ZB Zoning Bylaw 12800 SCCL Strathcona Centre Community League A4 THE DEVELOPMENT COMPLAINT PROCESS The Community League regularly receives Development Notices for all Class ‘B’ applications – those which include “discretionary variances”. These variances indicate that a development is being allowed to violate applicable zoning regulations. If the Development Officer handling the application decides that allowing the violation would not compromise safety or have a significant negative effect on the neighbours, a Class ‘B’ Development Permit issued. The developer must then notify the neighbours and the effected Community League, who are given the opportunity to review the permit and the construction drawings. They can determine for themselves if the violation is acceptable. If not, the permit can be appealed to the Subdivision and Development Appeal Board. When one has a concern with a project under construction, a call to P&D’s Customer Information Line will connect the caller with the DO who issued the permit. The DO will tell the caller if any discretionary variances were allowed on the permit and if an appeal has already been filed. If there are neither, one can ask the DO to check the approved drawings, to see if an apparent problem might have been missed. If the problem that the caller has identified is not found on the permit documents, the DO will advise caller to make a complaint through the Customer Information Line. The DO may also refer the problem directly to P&D’s Zoning Bylaw Enforcement Officer. A5 “THE JOB DESCRIPTION” Edmonton citizens, who have had professional or personal business with Edmonton’s Planning and Development Department, generally share an assumption of what the role of a Zoning Bylaw Enforcement Officer would entail: to be assigned a zone of the city, from a pool of such officers; to spot-check issued permits and project drawings to randomly visit construction sites; to respond to citizens’ complaints; if a problem is found on a spot-check, a site visit, or resulting from a complaint, to discuss the issues with the builder; to take site measurements, if the officer is able; or to require the Owner or contractor to submit a professional survey to confirm or disprove a perceived problem; if a problem or complaint is confirmed, to order the builder to remedy the violation before proceeding with further work. During the last two years, the residents of Strathcona have received no satisfactory replies - and usually no replies at all - from our calls to the Enforcement Officer, regarding development complaints. The complaints from many other central Edmonton neighbourhoods have also gone unheeded. This past June, our Planning Committee was astounded when told by a member of P&D’s own staff that there is only one P&D employee, who is directly responsible for Zoning Bylaw Enforcement. There is one Zoning Bylaw Enforcement Officer, for the entire city. A6 TALK TO THE BOSS On August 31, 2007, the President of the Strathcona Centre Community League, Joanne Booth, and I met with Mark Garrett, the Manager of the Development Compliance Branch of P&D. He was also acting General Manager of the department at the time. We asked Mr. Garrett to describe the terms of reference for the position of Zoning Bylaw Enforcement Officer. He summarized the job as follows: to act on public complaints only; to retrieve stamped and approved construction drawings from P&D’s files and call up the Development/Building Permit as issued; to compare the drawings and permit, ensuring consistency between the reviewed documents; if no departmental errors are found, to close the file; no further public complaints will be taken on the same matter for that project; no site visit is required and no reply is made to the complainant. Mr. Garrett told us that he believes this scant level of enforcement has been sufficient to meet the expectations of City Council. As evidence, he told us that Council allocated $2,000,000 to improve levels of enforcement of various bylaws in 2007. P&D had requested that the Zoning Bylaw be included but no extra money was allocated to the department for that purpose. If City Council was to direct the Planning and Development Department to increase its level of Bylaw Enforcement and provide additional funding for that purpose, Mark Garrett said that he would be pleased to comply. DUE DILIGENCE OR GOOD ENOUGH? We then asked how often landowners sue the City because of P&D’s negligence in not preventing violations of the Zoning Bylaw. Mr. Garrett assured us that, although many people talk about lawsuits when they are angry, in his long experience with the Department, very few have followed through. Mr. Garrett said that when lawsuits do rarely occur, the matter ceases to be a concern of the Planning and Development Department. The City Solicitor’s office deals with it from that point on. A7 PROVINCIAL AUTHORITY Authorized by the Municipal Government Act, a municipality in Alberta has many powers, rights, and privileges. It can levy taxes, enact bylaws, organize administrative structures, and appoint boards to oversee operations under its control. A municipality’s obligations and duties, however, are not so easily found in the MGA. The Act tells the City of Edmonton how it can enforce the bylaws that it decrees. Guidance is provided on how to issue binding Orders, to secure Court Orders, and how to prosecute offenders for not obeying these Orders. However, nowhere does the Municipal Government Act appear to require an Alberta municipality to enforce its own bylaws. The City has the power to enforce the Zoning Bylaw. It’s not being done. A8 THE ENFORCEMENT SHELL GAME In the course of confirming that Edmonton does not enforce its Zoning Bylaw, we’ve learned that almost everyone expects it to do so. Some developers, of course, have already figured out that no enforcement occurs and flout the rules accordingly. More and more builders will get wise to it every building season, if P&D doesn’t stop them. Generally though, homeowners believe that if they were to build a garage or an addition to their house differently from what is described in their permit, they will get caught and somehow be punished. Commercial developers and their consultants mostly believe that P&D is looking over their shoulder. They think that their work must comply with the zoning rules and with the commitments that they made when they signed for their Development Permit. If not, surely a white and blue car will drive up and a Bylaw Enforcement Officer will slap a Stop Work Order on their construction project. Managers at the Planning and Development Department tell us that this pervasive belief - that offenders will be caught - proves that their scant enforcement efforts are sufficient and effective. The real cost of the exceptions though, is often borne by innocents. That is not acceptable. A9 C’MON, DOES ANYBODY REALLY GET HURT? Not only neighbours but also owners of new structures can suffer from P&D’s negligence: Because of inadequate enforcement, owners may belatedly become aware that their recently-completed home, either built for themselves or purchased from a builder, does not comply with the Zoning Bylaw; A Real Property Report can identify serious ZB violations, which would render an owner unable to obtain permits either to make additions to a house or to renovate it, or even to sell it; The City will become an increasingly frequent magnet for legal action because it fails to enforce the Zoning Bylaw, by issuing poorly prepared permits and not monitoring new construction, either during construction or upon completion. The City of Edmonton may well continue to enjoy impunity from litigation resulting from zoning-based conflicts, as P&D managers would have us believe. However, every month last year, an average of $175,000,000 worth of Building Permits were constructed in Edmonton. Whether by malice or incompetence, a proportion of those buildings will somehow, “materially interfere with or affect the use, enjoyment or value of neighbouring properties.” (ZB 11.3.3.b.) Those wronged neighbours then get no satisfactory response from P&D’s complaint process. Some may seek help from their Community League’s Planning Committee and some may visit their lawyer. Others will be angry enough to just sell their homes and move away. Most, however, will simply swallow their disappointment and fortify the myth that no one in government cares about the little guy. MINISTER DANYLUK: Blameless citizens will continue to suffer the full cost of this neglect, unless you compel the City of Edmonton to fulfill its duty. A10 A NEIGHBOURHOOD TOUR OF RECENT NEW DEVELOPMENTS, with examples of inadequate Zoning Bylaw enforcement. The following samples are mostly from one central Edmonton community, Strathcona. Our counterparts in other Mature Neighbourhoods all across the city assure us, however, that they suffer the same frustrations with P&D’s poor performance. Sloppy permits allow inappropriate and non-complying development. Complaints are ignored and no site inspection is done to ensure Zoning Bylaw compliance. The considerate, moderating intentions of the Mature Neighbourhood Overlay are too often disregarded. Badly designed, over-sized buildings violate their required setbacks, cast long shadows, and look over adjacent private spaces. The neighbours are left to suffer the results indefinitely. A11