Caveats, Covenants, and the Impartial City

Caveats, Covenants, and the Impartial City

Like Violet Beauregarde after a delicious stick of Wonka’s blueberry pie bubblegum, Edmonton is ballooning at an insatiable rate.

As the city marches towards a population of two million—forecasts show us nearly doubling to this mark within 20 years—we find ourselves repeatedly gobbling up more land on the outskirts, while paying little mind to the excess space littered throughout our interior.

One might place some blame on city managers and politicians, who are slow to promote brownfield development on prime central sites like The Quarters and the Exhibition Lands. But perhaps the City’s laissez-faire approach is merely a reflection of Edmonton’s cultural milieu around homeownership—namely, the inflexibility of homeowners to accept a little bit of change in their backyard.

Densification is, for the most part, a bad word to many of Edmonton’s homeowners. As the city increasingly turns towards infill and lot splitting to alleviate sprawl, homeowners are not welcoming the change. They send angry letters to the editor. They post signs promoting “family-oriented development” on their front lawns. They take the fight to City Hall. More and more homeowners are even toying with problematic restrictive covenants to keep infill at bay.

CARRUTHERS’ LEGACY

Edmonton has a long history of restrictive covenants dictating neighbourhood progress (or, perhaps, the lack thereof) over time. One of the oldest and most notable local residential covenants is the Carruthers Caveat, signed in 1911, which governs much of today’s Glenora neighbourhood.

Glenora is an undeniably unique neighbourhood in Edmonton, known for its large historic brick and stone homes, its dense tree coverage, proximity to the river valley, and its upper-class population.

Glenora’s establishment and early growth is arguably history worth preserving. One of Edmonton’s first suburbs, it was connected to our budding core by a streetcar network that, sadly, we have now lost to history. The Carruthers Caveat intended to keep the community residential—by explicitly banning businesses—and the homes detached, permanent and high quality. In many ways it has done its job, and to this day it’s wielded like a fiery torch by Glenora’s homeowners. The City, on the other hand, pretends it doesn’t exist.

Now, more than 100 years later, Edmonton and the world are changing rapidly, humanity is beginning to think twice about unfettered growth and expansion, and the City’s hands-off approach is starting to cause some friction…

FROM CAVEAT TO COVENANT

In 2015, when City Council voted to permit lot splitting, all eyes turned toward the City’s post-war suburbs. With their modest bungalows set upon often comically large lots, it didn’t take long for residential developers to descend upon these unsuspecting neighbourhoods with dollar signs plastered over their eyeballs.

With the City largely turning a blind eye to the development pressure suddenly facing these communities, homeowners turned to restrictive covenants to prohibit lot splitting. In the years since, restrictive covenants have become all the rage in generic post-war suburbs throughout the city, including Westbrook Estates, Capilano, Gold Bar, and others. Proponents typically explained that they are simply fighting to preserve the character of their community.

With restrictive covenants being attached to land titles, the City is a non-party in their creation and enforcement. This has led to some frustrating scenarios for homeowners and homebuilders, including one in Glenora whose basement suite build was approved for development by the City but didn’t make it past the Carruthers Caveat. The embattled homeowner had been left out to dry by the City while neighbours circled with pitchforks.

One could make the argument that the City should have no place in restrictive covenants as they flex their enforcement muscle through traditional zoning. But could there be a better way?

DOING THE DEED

In its approach to regulating land use, Edmonton is like most other cities in North America. But there are exceptions. Take Houston, for example. Houston does not have a zoning ordinance dictating what can be built and where. Each new residential development, and the restrictions that come with it, are handled on a case-by-case basis through deed restrictions, typically reflecting developers’ interests first and foremost. While zoning ordinances generally try to paint residential developments with the same brush, Houston’s deed restrictions allow for a tailored approach that may better reflect the unique location or character of the area, or the lifestyle of the residents. Of course, this system could cause more harm than good. Deed restrictions certainly have a history of some pretty terrible exclusions.

Another different between Edmonton and Houston is that in the latter deed restrictions are enforced by the city, which can swoop in to arbitrate any challenges between homeowners. Having a third party like this to settle debates ultimately seems like a positive, rather than allowing homeowners and homeowner associations to go to battle on the streets.

THE PUSH AND PULL

One could make many arguments for or against zoning, deed restrictions, and restrictive covenants, and I don’t know that any could ever be declared a decisive winner. However, it’s clear that there are issues with Edmonton’s current system, in that the City’s blanket zoning rules create the conditions for homeowners to react by putting their own restrictions in place, and doing so on a lot-by-lot basis. This leaves some neighbourhoods with confusing and arbitrary patchwork restrictions in place. While one lot may have a restrictive covenant that prevents lot splitting, their neighbour may not, meaning infill and skinny homes can still be built. In this scenario, is anybody really happy?

In some areas where the battle is particularly fraught, like Glenora, the City is stepping in with zoning in an apparent effort to keep the torches and pitchforks down. Just last week, City Council received a report (item 6.7) to change much of Glenora to DC1, with an eye toward allowing only those developments that preserve the historic character of the neighbourhood. But to complicate matters, the plan makes a modest allowance for “sensitive infill opportunities” including secondary suites, garden suites, or duplexes, all of which are a no-go with the Carruthers Caveat. We’ll see how that turns out.

In some ways, it feels as though the City of Edmonton is stepping on its own toes in its admirable quest to densify central neighbourhoods, and their unwillingness to acknowledge covenants could cause more drama than they fix. Its initial infill strategy gave developers carte blanche to redevelop lots regardless of what’s next door, much to the chagrin of those adjacent neighbours. In response, residents put restrictive covenants in place, agreements in which the City is left out entirely. Clearly, it’s a formula designed neither to win over communities nor successfully curb sprawl.

To their credit, the City soon followed up with an Infill 2.0 strategy that astutely focused its infill push on main streets, community boundaries, and transit corridors. For the moment, it appears homeowners are satisfied with the approach. It’s been awhile since caveats or covenants have made the news, but I get the feeling those pitchforks are still well within reach.

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