neighboring properties to enter into agreements

[sunyaer]

Attached is a staff report from City of Toronto regarding chimney. My question is more about the comments in the second screenshot below. How can the owner of a new proposed construction permit enter into an agreement about the neighbor's effected chimney? Who will pay for the extension or relocating of the effected chimney?

As I understand, unless there is proof that shows that the neighbor's effected chimney has been constructed without a permit, the neighbor (if it's me) would not be willing to pay for any cost to bring his / her effected chimney into compliance with current building code.

 

[mtlogcabin]

Who will pay for the extension or relocating of the effected chimney?

The person who wants to build that would be part of the agreement.

 

[tmurray]

Normally, we calculate the limiting distance to the lot line. What the City of Toronto allows is for two private property owners to agree on a different line being used to calculate the limiting distance.

The proposal would satisfy the issues around prohibited locations that are in close proximity to the lot line. There are a couple of issues with this approach. First, unless registered against the properties, the agreements would not be binding on future owners as they would be unlikely to be made aware of the agreement. Additionally, these would be challenging for the municipality to manage without substantial resources.

To be effective, these agreements would need to be:
1. surveyed by a licensed land surveyor
2. the survey would need to for part of the agreement.
3. the agreement would need to be registered against both properties
4. the survey would need to be incorporated into the city's GIS system so that it can be referenced in the future for permits of both properties.

Without the above measures, it is too likely that people may not be aware of agreements impacting the properties they are purchasing, at best rendering the agreement null and void, at worst exposing an unaware owner to increased risk, and ultimately that the city issue permits that should not be approved as they are too close to the agreed upon limiting distance line, rather than the property line.

 

[sunyaer]

Normally, we calculate the limiting distance to the lot line. What the City of Toronto allows is for two private property owners to agree on a different line being used to calculate the limiting distance.

The proposal would satisfy the issues around prohibited locations that are in close proximity to the lot line. There are a couple of issues with this approach. First, unless registered against the properties, the agreements would not be binding on future owners as they would be unlikely to be made aware of the agreement. Additionally, these would be challenging for the municipality to manage without substantial resources.

To be effective, these agreements would need to be:
1. surveyed by a licensed land surveyor
2. the survey would need to for part of the agreement.
3. the agreement would need to be registered against both properties
4. the survey would need to be incorporated into the city's GIS system so that it can be referenced in the future for permits of both properties.

Without the above measures, it is too likely that people may not be aware of agreements impacting the properties they are purchasing, at best rendering the agreement null and void, at worst exposing an unaware owner to increased risk, and ultimately that the city issue permits that should not be approved as they are too close to the agreed upon limiting distance line, rather than the property line.

Excellent information.

More of my doubt is about why the owners are willing to enter into such agreement, would they all benefit from the agreement?. Assume an scenario where my neighbor is applying for a new two story house (tear down and infill) which would make my existing chimney uncompliant, why would I enter into such an agreement to do extension or relocating of my chimney unless in the agreement that my neighbor will pay all the costs, and an amount of compensation for my inconvenience?

 

[classicT]

why would I enter into such an agreement to do extension or relocating of my chimney unless in the agreement that my neighbor will pay all the costs, and an amount of compensation for my inconvenience?

Kindness - simply because they are sympathetic or kind-hearted and do it for the pure benefit of the neighbor.

or​

Quid-pro-quo - never underestimate the ability for a this-for-that trade.

 

[Plumb-bob]

I have looked at scenarios where spatial separation was a challenge for a project, and in these situations I would allow the limiting distance to be on a plane other than the lot line, if a restrictive covenant were placed on the affected properties prohibiting future construction that did not align with the agreed upon limiting distance.
Has not happened yet in practice, but I would allow it if proposed.

 

[ICE]

California Residential Code.

R102.2 Other laws. The provisions of this code shall not be deemed to nullify any provisions of local, state or federal law.

R102.7 Existing structures. The legal occupancy of any structure existing on the date of adoption of this code shall be permitted to continue without change, except as is specifically covered in this code, the International Property Maintenance Code or the California Fire Code, or as is deemed necessary by the building official for the general safety and welfare of the occupants and the public.

The existing chimney becomes a code violation. If not, how would you describe it?

So far the Canadian authorities have deemed their Building Code to be silent on the issue and therefore the government is neutered. A bit too convenient.

The plan for an agreement of some sort that has the effect of mitigating the code violation seems laudable and highly impractical. For example, when exactly does the violation become apparent? Was is during plan check or at the final inspection. Do not assume that it's always found at plan check. There's plenty of evidence pointing away from that conclusion.

The "Agreement" is between members of the public. How can the government force a member of the public to reach an agreement? What if the owner of the soon to be chimney violation says he won't even discuss the matter. What then? He wakes up on a cold winter day and the wood stove is acting like it swallowed a basketball?

The permit applications that I have seen have a clause that states that the permit does not give authority to break any and all laws.....

So let's take the position of the existing chimney owner. At some undetermined stage of construction he is made aware of the violation. He now has a problem that was created by the adjacent property owner. An adjacent property owner that violated the terms of his permit. He is then informed that he shall sit down and hash out an agreement. He is wondering why he is a part of this.

Other scenario: The owner is approached with an request to reach an agreement prior to issuance of a permit. The owner declines to participate. Will he be taken to court.

The agreement is a way for the government to get housing projects approved. No argument there. It just seems like a heavy handed way to go about it.

 

[tmurray]

Excellent information.

More of my doubt is about why the owners are willing to enter into such agreement, would they all benefit from the agreement?. Assume an scenario where my neighbor is applying for a new two story house (tear down and infill) which would make my existing chimney uncompliant, why would I enter into such an agreement to do extension or relocating of my chimney unless in the agreement that my neighbor will pay all the costs, and an amount of compensation for my inconvenience?

In that situation, the neighbour would need to have their limiting distance encroach onto your property, which would be what triggers your chimney to be non-compliant. So, for you to sign an agreement, the neighbour would have to compensate you to whatever level you want for having to relocate the chimney and lose the some of the potential use of your property (i.e.: you can no longer build in that area).

 

[ICE]

In that situation, the neighbour would need to have their limiting distance encroach onto your property, which would be what triggers your chimney to be non-compliant. So, for you to sign an agreement, the neighbour would have to compensate you to whatever level you want for having to relocate the chimney and lose the some of the potential use of your property (i.e.: you can no longer build in that area).

If you decline to reach any agreement, does the building department then somehow reverse settled law that states that the Building Department does not have jurisdiction over existing buildings? Would the jurisdiction deny a building permit based on the future violation? Would the jurisdiction ever red tag the chimney that has become a code violation?

Somehow in all of this I assume that the entire exercise is the government not wanting to exercise it's authority. Making a code violation a civil matter between random citizens might lead to unexpected consequences.

 

[tmurray]

If you decline to reach any agreement, does the building department then somehow reverse settled law that states that the Building Department does not have jurisdiction over existing buildings? Would the jurisdiction deny a building permit based on the future violation? Would the jurisdiction ever red tag the chimney that has become a code violation?

Somehow in all of this I assume that the entire exercise is the government not wanting to exercise it's authority. Making a code violation a civil matter between random citizens might lead to unexpected consequences.

I don't believe the Supreme Court of Canada has heard a case on this matter, so I cannot agree that it is settled law. Even our code says that normally as long as something was constructed to code, it would not need to be upgraded simply because the code changes, unless the building official deems it a substantial safety risk. So, there is a process to trigger upgrades even if there is no construction, but I have not heard a single instance of it being invoked.

My assumption is that the chimney is currently setback appropriately from the lot line and the new building needs a little more room on the other side of the lot line to be constructed legally, but this moves the chimney from its complaint status to non-compliant due to the relocation of the line used to calculate limiting distance. So, to answer your question; the permit for the construction of the new building would be denied and the chimney would remain compliant.

 

[Inspector Gadget]

The question I have is how this would be implemented - and like tmurray, the specifics would revolved around registering against the title.
Our shop places a "Land Gazette" notice for alternative solutions proposals... I suppose a joint alternative solutions proposal might work.

Seems like a massive process in any event, and the critical issue is that this kind of agreement binds future property use. Normally, when dealing with spatial separation, we are not concerned about the existing, future, or past use of any buildings on the adjacent property. We are only concerned about the property line.

PS: Why not just do a division of land, removing one chunk from property (1) and adding it to property (2)?

Meh. Seems silly.

 

[ICE]

this kind of agreement binds future property use.

The agreement would eliminate the code violation. Once the requirements of the agreement have been met, the agreement becomes moot. Presumably, the future property use would have to meet applicable code. That would prevent the creation of a code violation.

 

[mtlogcabin]

Question for our northern neighbors, do you care about snow drifting from a new 3 story building increasing the snow load on an existing single-story building?
IBC
1608.1 General.
Design snow loads shall be determined in accordance with Chapter 7 of ASCE 7, but the design roof load shall be not less than that determined by Section 1607

ASCE 7 7.7.2 Adjacent Structures, requires adjacent buildings within 20 feet and less than 6 times the vertical separation distance to be reviewed for any additional snow loads that may result from snow drifting from the taller building.

 

[sunyaer]

...

My assumption is that the chimney is currently setback appropriately from the lot line and the new building needs a little more room on the other side of the lot line to be constructed legally, but this moves the chimney from its complaint status to non-compliant due to the relocation of the line used to calculate limiting distance. So, to answer your question; the permit for the construction of the new building would be denied and the chimney would remain compliant.

The court ordered the permit to be issued:

 

[sunyaer]

The screenshot in the above post is actually from the attached file in my original post

 

[tmurray]

In Alaimo v. North York, (I can't find the actual case law, just a brief summary in another ruling) the building official refused to issue a permit to allow the construction of a chimney due to the height of a chimney, on the basis that he believed that it could cause a hardship on the future development of the adjacent property. The court found the building official had no basis to withhold the permit on these grounds (likely due to a violation of procedural fairness)

I'm not sure that case would have any impact on the scenario you presented.

 

[ICE]

In Alaimo v. North York, (I can't find the actual case law, just a brief summary in another ruling) the building official refused to issue a permit to allow the construction of a chimney due to the height of a chimney, on the basis that he believed that it could cause a hardship on the future development of the adjacent property. The court found the building official had no basis to withhold the permit on these grounds (likely due to a violation of procedural fairness)

I'm not sure that case would have any impact on the scenario you presented.

I hope that the jurisdiction had to pay the citizen's legal bills.

 

[tmurray]

I hope that the jurisdiction had to pay the citizen's legal bills.

This would be typical as part of the damages claimed by the plaintiff. No statutory immunity here in Canada. If someone is "injured" by a building official, they can sue for damages. If the act by the building official is particularly egregious, you might also get awarded court costs.

 

[sunyaer]

In Alaimo v. North York, (I can't find the actual case law, just a brief summary in another ruling) the building official refused to issue a permit to allow the construction of a chimney due to the height of a chimney, on the basis that he believed that it could cause a hardship on the future development of the adjacent property. The court found the building official had no basis to withhold the permit on these grounds (likely due to a violation of procedural fairness)

I'm not sure that case would have any impact on the scenario you presented.

I would think it's a bit related, while the scenario we are discussing here is a proposed new construction that would impact an existing chimney on adjacent property.

 

[tmurray]

I would think it's a bit related, while the scenario we are discussing here is a proposed new construction that would impact an existing chimney on adjacent property.

You're not wrong. In the case, the courts held that a permit could not be withheld because the building official thinks there might be a violation someday. Your example is exploring the opposite, presumably the building official could not legally issue the permit because it would permit illegal construction.

In your example, the existing chimney would at no point be illegal. The new construction that is too close to the lot line would be.