PURPOSE

To introduce “Zoning Bylaw Amendment Bylaw (Retaining Walls & Fences) No. 3891” (Attachment 1) and “Building Bylaw Amendment Bylaw (Retaining Walls) No. 3892” (Attachment 2) for Council’s consideration of initial readings.

BACKGROUND

North Cowichan’s staff routinely handle development proposals, building permit applications and inquiries that include the construction of retaining walls. These inquiries are not uncommon as the area has mountainous topography which result in recurrent construction challenges.

Section 2 of the Building Bylaw specifically excludes retaining walls from the permitting process. While this exclusion is appropriate for the construction of smaller retaining walls incorporated into residential landscaping, it has resulted in the unregulated construction of retaining walls, some of which were undertaken without engineering review or supervision. In turn, the zoning bylaw provides little assistance in that retaining walls are neither defined nor explicitly regulated.

To illustrate why this lack of regulation is problematic, zoning bylaw section 33.1 “Projections into Required Yards/Setbacks” requires setback areas to be kept free of buildings and structures in order to maintain relatively unimpeded access around buildings, along with “breathing space” to adjoining neighbours. This is particularly important if there are any rights-of-way present for infrastructure where at any time the rights-holder may need to excavate to inspect and repair access roads, water or drainage lines. While in many cases the addition of a retaining wall in these locations is harmless, they are thus implicitly regulated through this provision, currently requiring a development variance permit in all cases for the placement of a retaining wall within a setback. Regulating retaining walls explicitly within the zoning bylaw can make provisions for placement within setbacks under certain conditions which would in turn lead to fewer instances where a variance is required.

In addition to the above concern, with no clear or transparent regulations in effect, consistent interpretation is difficult to provide and as a result, it has led to the following concerns/consequences:

• lack of aesthetic appeal (unsightly)
• overused throughout neighbourhoods
• unnatural manipulation of land to get around height restrictions to construct taller homes
• falling hazard created
• lack of privacy between neighbours when in close proximity
• danger of wall failure when constructed without qualified professional oversight

As such, staff propose amendments to the Zoning and Building Bylaws that aim to:

• provide clear and transparent regulatory direction (plain language with visual aids) relating to retaining walls and associated regulations
• add retaining wall regulations into the Building Bylaw where none existed before and harmonize the building and zoning bylaws.
• create departmental efficiencies by reducing the volume of variance applications received (for retaining walls located in setbacks) and bylaw enforcement files to free up staff time and resources
• align retaining wall best practices requirements with neighbouring jurisdictions

While this issue could be addressed as part of the comprehensive zoning bylaw update to be undertaken in 2023, given its relatively self-contained nature and the detailed work completed to date, staff are in a position to bring this forward to Council ahead of that project. This is an opportunity to provide clarity in the near term to an issue that has confused and frustrated landowners and builders and has consumed inordinate staff time.

DISCUSSION

The proposed amendment to Zoning Bylaw No. 2950 is specific to three areas of the bylaw: ‘Part 3 – Definitions’, ‘Part 4 – General Regulations’ and ‘Part 5, Division 2 – Zones’. No other amendments are being recommended at this time; although as part of the upcoming general zoning bylaw revision, there may be further opportunities to refine the approach to retaining walls, including addressing design aspects within the development permit guidelines. The amendments are as follows:

1) Proposed amendments to ‘Part 3 – Definitions’ include:

a) Amend definitions: “fence”, “retaining wall” and “structure”

b) Add new definition: “guardrail”

2) Proposed amendments to ‘Part 4 – General Regulations’ include:

a) Amend ‘Section 37 - Fences’ to ‘Section 37 - Fence & Retaining Walls’

b) Add new section ‘37.1 Fences’ to introduce both new and amended fence regulations

c) Add new section ‘37.2 Retaining Walls’ to introduce new retaining wall regulations

The proposed regulatory amendments provide for the placement of retaining walls within setbacks under certain conditions without the need for a variance. They also anticipate situations such as where a property owner builds a retaining wall that easily overlooks into the neighbour’s yard and provide for the affected property owner to determine their maximum fence height from the top of the neighbouring retaining wall (as opposed to grade level on their own parcel), thus mitigating a potential privacy issue.

3) Proposed amendment to ‘Part 5, Division 2 - Zones’ includes:

a) Amend ‘Conditions of Use’ in all zones to exclude fence height restrictions

At present, fence height restrictions (if applicable) are included in each zone’s ‘Conditions of Use’ section, however, with the introduction of a ‘Fence Height Restrictions by Zone and Yard Location’ table in the general regulations, fence height restrictions can be removed from each zone, making the bylaw more concise.

To address the issue of inadequately constructed retaining walls, and to ensure the building and zoning bylaws are consistent with each other, the following amendments are proposed to Building Bylaw No. 3172 and are specific to three areas of that bylaw: ‘Part 2 – Application’, ‘Part 3 – Definitions’ and the introduction of ‘Part 19.2 - Retaining wall building permits’:

1) Proposed amendment to ‘Part 2 – Application’ includes:

a) The removal of ‘Section 2.2.b’ which states “This bylaw does not apply to retaining structures’.

2) Proposed amendments to ‘Part 3 – Definitions’ include:

a) Addition of new definition: “retaining wall”

b) Amend definition: “structure” consistent with the proposed zoning bylaw definition change

3) Proposed addition to ‘Part 19’ that includes:

a) Adding the new section ‘Part 19.2 Retaining Wall Building Permit’ that seeks to introduce new retaining wall regulations in the Building Bylaw.

These amendments would mean that a building permit is now required for any retaining wall greater than 1.2 m in height. This is considered necessary from a safety standpoint. No other amendments are being recommended at this time.

C. Summary

In the interest of creating clear and easy-to-understand regulations for retaining walls, amendments to “Zoning Bylaw Amendment Bylaw No. 3891” and “Building Bylaw Amendment No. 3892” are proposed for Council’s consideration.

While the Building Bylaw amendment follows the usual bylaw adoption process as per s. 135 of the Community Charter, s.464 the Local Government Act prescribes a different adoption process for zoning bylaws that include a public hearing. If and when a public hearing has been held for the Zoning Bylaw amendment, Council can then proceed to third reading of that bylaw, and if given, can then adopt both the Zoning Bylaw and Building Bylaw Amendment Bylaws at the same time.

OPTIONS

1. (Recommended Option) THAT Council:

(1) Gives first and second reading to “Zoning Bylaw Amendment Bylaw No. 3891” to amend the Municipality of North Cowichan’s Zoning Bylaw No. 2950;

(2) Directs staff to arrange a Public Hearing for “Zoning Bylaw Amendment Bylaw No. 3891”; AND

(3) Gives first, second and third readings to “Building Bylaw Amendment Bylaw No. 3892” to amend the Municipality of North Cowichan’s Building Bylaw No. 3172.

2. THAT Council defers initial readings of bylaws “Zoning Bylaw Amendment Bylaw No. 3891” & “Building Bylaw Amendment Bylaw No. 3892” and requests additional information or substantial regulatory changes:

THAT staff be directed to provide [information to be identified by Council] and return draft bylaws “Zoning Bylaw Amendment Bylaw No. 3891” & “Building Bylaw Amendment Bylaw No. 3892” for consideration at a future meeting.

3. THAT Council declines to read bylaws “Zoning Bylaw Amendment Bylaw No. 3891” & “Building Bylaw Amendment Bylaw No. 3892” and provides alternative direction to staff on whether or how to proceed with retaining wall regulation:

THAT Council declines to give first reading to bylaws “Zoning Bylaw Amendment Bylaw No. 3891” & “Building Bylaw Amendment Bylaw No. 3892” [and directs staff to … Council to identify]

IMPLICATIONS

RECOMMENDATION

(1) Gives first and second reading to “Zoning Bylaw Amendment Bylaw No. 3891” to amend the Municipality of North Cowichan’s Zoning Bylaw No. 2950;

(2) Directs staff to arrange a Public Hearing for “Zoning Bylaw Amendment Bylaw No. 3891”; AND

(3) Gives first, second and third readings to “Building Bylaw Amendment Bylaw No. 3892” to amend the Municipality of North Cowichan’s Building Bylaw No. 3172.

Report prepared by: Report reviewed by:

Patricia Taylor Rob Conway

Planner Director, Planning and Building