Error by city staff leaves property owners on hook with notice on title

·7 min read

A city staff error on a building permit has turned into a notice on title two years later for a North Shore family.

The property at 745 Highway 3A has been served with a notice on title — for not having residential sprinklers or a six-metre wide roadway access for fire trucks — despite the city issuing an occupancy permit for the new residential build two years ago.

But when a neighbouring property applied for a building permit in 2021 awareness of the error on the roadway deficiency and the lack of a sprinkler system arose, prompting the city to issue the notice on title, approved by city council on Aug. 9.

While the requirement for a residential sprinkler was indicated on the approved plans for the first property, noted building official Bruce McNeil in his report to council, errors were made with processing the permits for this property, including:

• An occupancy permit for the single-family dwelling was issued without a notation about the deficiency of a residential sprinkler system; and

• The final building permit was issued for the laneway house.

“The final building permit should not have been granted as the building does not contain a residential sprinkler system,” said McNeil. “Staff have been in communication with owner one since the spring of 2021 to resolve the issue.”

Since his family had been living in the home for two years — and with an occupancy permit well in place — the first owner appeared before council to protest the notice.

He said there were no city bylaws dictating fire access requirements related to this type of a property, no bylaw that mandated sprinkler installation and Section 9 of the B.C. Building Code did not specify road access width, or any other necessary characteristic for fire access.

“Fire access requirements are up to the discretion of the fire chief and hinges upon their willingness to seek a reasonable resolution to emergency access,” the owner noted in his address to council.

One of the conditions of the subdivision — one large lot was turned into four lots — was that “a suitably constructed access easement be designed and built as a six-metre wide ‘hammer-head turn around’ and maintained free and clear over time to allow the City of Nelson Fire and Rescue Services Department access and egress.”

After a site visit on June 20, 2017, an email was sent to all the owners stating that if they could not provide a six-metre wide access, then a 4.5-m access would be accepted if all residential development contained a sprinkler system.

Earlier this year city staff had recommended that notice on title be placed upon both properties — 754 Highway 3A and 758 Highway 3A — because the deficiency and associated facts warranting the notice were the same and had not been remedied.

But there was no mention of any deficiency pertaining to any sprinklers on the final sign off or final occupancy, the first owner said (who did not wish to be named due to security reasons).

“I was hoping if there was a deficiency we would have known along the way and not wait until my house has been finished and we have moved in,” he said.

When an email came from city early last year — citing the need to remediate a lack of sprinklers right away — a notice on title was threatened on the house saying it was unsafe.

“So I was completely taken aback and, again, wondered why no one let me know along the way that this was a deficiency, but waited until our houses were complete and I didn’t really get an answer,” the owner said.

“My question is how does putting a notice on title address the concerns of the access and egress here? I just want to get this done. I don’t see any building code or City of Nelson bylaw contravention.”

City manager Kevin Cormack was quick to respond, stating he did not understand why the notice was being discussed.

“I thought we had come up with a good solution so I’m not quite sure what the ask is,” he said. “So notice on title does protect the city from liability in the event there is a fire or someone is injured at that property.”

“Like I said, I don’t feel like I am being heard,” the property owner replied.

Cormack said if there was a plan to demolish the house, then the notice on title could be removed when that work was done.

“But, in order to protect the city … we can’t take the risk of accessing properties that don’t have sufficient roadway widths,” Cormack said.

Coun Keith Paige looked for some middle ground in the debate.

“Should any of these units move, or change hands or ownership, this notice on title does seem to be required just to mitigate and be transparent with anyone going into the future,” he said. “So, for the nominal fees associated with that, not that the work will be nominal, I think we can look at waiving those into the future.”

Mayor John Dooley reminded council about what was at stake in the debate.

“I think the key piece here is the risk to the Corporation of the City of Nelson. That’s the key. And that’s why this notice of title would go on would be to protect the municipality,” he said.

“It doesn’t mean that that road is going to be widened tomorrow morning, because obviously it isn’t. It probably is at some point in time. In the meantime, at least we are protected.”

754 Highway 3A In the spring of 2019, a building permit to construct a single-family dwelling was applied for at 754 HWY 3A and received approval.

The building permit plans included a “residential sprinkler system required as per City of Nelson Fire direction meeting NFPA 13D.” While the requirement for a residential sprinkler was indicated on the approved plans, staff note that errors were made with processing the permits for this property:

- An occupancy permit for the single-family dwelling was issued without a notation about the deficiency of a residential sprinkler system; and

- The final building permit was issued for the laneway house. The final building permit should not have been granted as the building does not contain a residential sprinkler system.

Staff have been in communication with owner one since the spring of 2021 to resolve the issue. While an error was made by staff, the fire chief has stated that this development cannot be finalized without a six-metre wide access or a residential sprinkler system, and the B.C. Code of Appeals Board supported this decision.

All parties have agreed that widening the access will resolve the emergency access concerns with both properties; however, the road has not been widened to date.

In addition to the above, it was noted during the occupancy inspection that cable-type guard rails had been installed on the exterior of the main dwelling.

These guards fail to meet current building code minimums without modification and are an added risk to occupant safety.

Source: City of Nelson Aug. 9 agenda

758 Highway 3A The property at 758 Highway 3A was sold to owner two after the subdivision was completed.

In early communication with owner two, the city reiterated that a residential sprinkler system was required to develop this property.

In April 2021, the owner applied for a building permit for both the single-family home and laneway house. The approved building permit plans for both permits at 758 HWY 3A included a schedule B for fire suppression systems (sprinklers).

This schedule B indicates to the building official that an engineer has been retained to oversee the installation of a residential sprinkler system. To date, a sprinkler system meeting NFPA 13D has not been installed, nor has the road widening occurred.

As detailed below under the communication heading, staff have been in constant communication over the last 16 months with both owner one and owner two in an effort to resolve the noted contraventions.

Source: City of Nelson Aug. 9 agenda

Notice on title

Filing the section 57 notice on title is a minimal cost to the city and notifies prospective purchasers of the building code deficiencies associated with the properties.

If a notice on title is not registered, it may put the city at risk and potential future owners.

Section 57 of the Community Charter allows local governments to place notice on title of any property that contravenes a municipal bylaw or the B.C. Building Code.

Source: City of Nelson Aug. 9 agenda

Timothy Schafer, Local Journalism Initiative Reporter, The Nelson Daily