A reduced encroachment is still just that but property owner isn’t to blame

I think it’s time to set the record straight about the new garage that encroaches onto Second Avenue.

I think it’s time to set the record straight about the new garage that encroaches onto Second Avenue.

The owner of the property followed the advice of city staff and, in good faith, constructed a garage that encroaches on Second Avenue. The garage may be innovative and efficient but it still encroaches on city property.

That encroachment could cause problems for the owner in the future. It may affect his insurance or mortgage and, as any real estate agent knows, will probably affect his ability to sell the property.

The garage replaced an old wall that also encroached onto Second Avenue but there is no indication that old wall was authorized by any council. Replacing one encroachment with another is not a solution. As most have learned, two wrongs don’t make a right.

The problem does not lie with the owner of the property — the problem lies at city hall.

Encroachment of retaining walls, and sometimes buildings, onto public property is not unusual in Rossland. The city has had a policy in place for several decades to reduce or eliminate these encroachments as the opportunity arose and has had considerable success in doing so. However, the precedent established by this recent action might allow any property owner with a wall or fence or some other encroachment to demand the right to extend their garage, carport, patio or whatever onto city property. Clearly that is not acceptable.

The building inspector was quoted as saying “by local government act, if you have a building lot, you have to have access from the street you’re facing.” I know of no such provision in any provincial legislation. The city’s zoning bylaw does however specify that access may be from a street or a lane. This property has access from the lane as many properties in Rossland do.

So what are some of the problems with this encroachment?

The highway access bylaw says that small lots are only allowed one access. In this case there is an existing access from the lane. A second access is not permitted.

The zoning bylaw says that garages and carports must have a setback of at least 0.3 meters from the property line. This can be changed by a Development Variance Permit (DVP) but no DVP was applied for or granted.

The zoning bylaw also says that buildings cannot straddle property lines and that lots must be consolidated before a building permit is issued. Obviously, the owner will not be able to consolidate his lot with the city road allowance and no building permit should have been issued.

The encroachment bylaw says that an encroachment not secured by a restrictive covenant is an unlawful encroachment and shall be subject to removal. The courts have ordered the removal of unauthorized encroachments. Council may permit an encroachment but has not done so in this case. Staff have no authority to approve an encroachment in spite of the assertions of the CAO.

Staff have not followed the bylaws they were hired to enforce. Their motives may have been laudable but there is still a legal process to follow to achieve the intended results. That did not happen in this case.

The travesty in this case lies with council. In spite of being informed of the obvious transgressions in this case council did nothing. Will council ever understand that they were elected to represent the interests of all the citizens of Rossland including the protection of public land?

Laurie Charlton

Rossland city councillor