Help, we’re stuck in a Kafka novel!

Kafkaesque:
: of, relating to, or suggestive of Franz Kafka or his writings especially : having a nightmarishly complex, bizarre, or illogical quality // Kafkaesque bureaucratic delays
…the word Kafkaesque is often applied to bizarre and impersonal administrative situations where the individual feels powerless to understand or control what is happening.

(Merriam-Webster)

As described here, we chose to change the roof shape of the ‘existing’ half of the duplex to a gable roof. This change required that we go through a Delegated Development Permit process.

A Delegated Development Permit (DDP) allows staff to review and approve “minor” changes to a Development Permit, which is a more streamlined process than applying for a completely new DP. We evaluated the timeline, cost and benefits and chose to go ahead, submitting the application in October. The first round of comments from staff were supportive of the roof change, but (of course) pointed out a few other minor items that would require a resubmission.

After we resubmitted in November (and were well into framing construction), the code inspector assigned to our project flagged the fact that we referred to existing structure in the Building Permit drawings but that there appeared to be no existing structure. We explained to the city planner that the design was the same, except that we had replaced existing with new framing (read the rationale here). Development Permits are intended to govern form and character, and this change had no impact on either. As such, it hadn’t occurred to us to talk with the planning department prior to dis-assembling. Apparently we were mistaken.

This revelation kicked us out of the DDP process. City staff said they were not comfortable approving this ‘major‘ change without council input and therefore instructed us that we needed to apply for a new Development Permit before we can continue work. Queue stop work order.

Surely this is not the first time that the late discovery of structural deficiencies has led to a change in approach, and surely applying for an entirely new development permit is not the only path? They said if we’d come to them before we dis-assembled the existing framing, they would have been able to work something out. Like what, keep a wall so we can still call it “existing”? The DP application form says to expect a 3-6 month process. How is that in any way reasonable for a project that is mid-construction?

Upon hearing this judgement, I did what any analytical person would do: I poured over the Local Government Act and Land Use Procedures Bylaw to understand the policy that was informing staff’s direction. I discovered two important things:

• “Minor” and “Major” are not defined anywhere, so it’s up to someone’s subjective interpretation of what is a minor versus a major change. In our opinion, a change that can be documented by revising a couple of notes in the drawing package is a minor change – particularly when it has zero impact on form and character.

• the Local Government Act provides a mechanism to appeal a planning department’s decision to deny a DDP application. The appeal process would mean that we could directly address Council and ask them to either uphold or overrule staff’s decision.

So when city staff rejected our DDP application, citing that they were uncomfortable proceeding without Council’s input, we invoked our right to appeal. Our sole interest was to resolve any concerns quickly so that we could continue with construction. A 3-6 month wait could be lethal to our small project.

A few days after notifying staff of our appeal, we received a letter from the city solicitor’s office saying that we could not in fact appeal. This is worth quoting:

You getting this? Neither are we. I guess that’s why they’re the lawyers and we’re not.

We’ve discussed this process at length with our planning consultant and we remain convinced that we have the policy backing to support our position and our right to appeal. How can staff’s direction be anything but a rejection of our application?

Unfortunately, our case is muddied by the perception that there is a lot of wanton demolition going on in our city by developers. The Acting Director of Planning said in our first meeting that just the week prior, they had a similar case come forward, and they seemed intent on following the same process for both, irrespective of the unique circumstances of each.

It became clear that City staff were not going to budge, despite many conversations and correspondence to address their stated concerns. Our last ditch attempt was to present directly to council at a public hearing (any citizen who submits the proper notice can address Council for up to 5 minutes). If staff were saying they weren’t comfortable moving forward without Council’s input, we would ask Council directly for their input.

I sent a letter to all councillors in advance of the public hearing to provide context and give them the best opportunity to consider our case and ideally, to pass a motion to allow staff to complete our DDP application. We had also exchanged several emails with the Mayor, who seemed willing to do what she could.

I gave my presentation, after which Mayor Helps thanked me and moved on to the next speaker with no further discussion.

We stuck around until the end of the meeting, and Ian (our planning consultant) had a discussion with the Acting Director and the city’s solicitor to better understand their rationale. We remain convinced that the solicitor’s advice is flawed, and listening to him speak left me with the impression that he just wants to be right. But to take up the matter further and engage our own legal advice would only mean more cost and time that we don’t have. We later learned that Mayor Helps had gone to staff earlier that day to ask if Council could in fact pass the motion we had requested, and was told that they could not. The Mayor seemed genuinely interested in helping our case, but was prevented from doing so by staff following the advice of their solicitor.

So we reluctantly raised the white flag (having lost nearly 2 months to the false hope that we could find another, faster resolution) and submitted a new Development Permit (complete with $3,000 application fee to review drawings that have already been reviewed). We are now well into Month 4 of the stop work order as we inch along the City’s review process, with an estimated delay-related cost of $30,000 so far.

Who does this serve? Why is the City not doing everything they possibly can to help projects that add housing and that are wholly consistent with both our climate action imperative and the City’s Official Community Plan? It’s counter-productive, non-collaborative, reactive, punitive, and mired in a procedure over which no one seems to have any control. I understand the need for policies and procedures, but when they’re just ticking boxes, there is a real cost (and a lost opportunity) that they either don’t appreciate or believe they are powerless to change.

The one voice of reason in all of this has been the manager of inspections, who allowed us to finish wrapping the house prior to enforcing the stop work order, so that the structure is protected from the elements. He has also since allowed us to complete the rest of the roof assembly to resolve some moisture and durability issues.

Stay tuned for a new public hearing. If you feel inclined, you are welcome to write a letter of support to mayorandcouncil@victoria.ca. And for those readers for whom this all sounds familiar, watch for the launch of our new city approvals survivors’ group!

Here are some photos of where we’ve left things. While we wait, we can all at least appreciate our beautifully colourful Cascadia fibreglass entry doors.

Thanks for reading!

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