Navigating the Crossroads of Blanket Re-zoning and Restrictive Covenants

In the ever-evolving landscape of urban development, cities are constantly seeking ways to address housing challenges. One approach gaining traction is blanket re-zoning, a strategy aimed at increasing housing options and density in existing neighborhoods. However, this approach has sparked a contentious debate, with some residents turning to restrictive covenants as a countermeasure. Let's delve into these complex topics and their implications for property owners and communities.

Understanding Blanket Re-zoning: The City's Vision

Blanket re-zoning is a comprehensive approach to updating land use regulations across entire neighborhoods or cities. The City of Calgary, for example, has proposed five significant changes:

1. Rezoning for Increased Density: Many single-family zones will be rezoned to allow for a mix of housing types. For instance, R-1, R-1s, R-1N, and R-2 zones will become R-G (Residential – Low Density Mixed Housing District), allowing single-detached, semi-detached, and rowhouses. Similarly, R-C1, R-C1L, R-C1Ls, R-C1s, R-C1N, R-CG(ex), and R-C2 zones will become R-CG (Residential – Grade-Oriented Infill District), permitting single-detached, semi-detached, rowhouse, fourplex, and townhome developments.

2. Introduction of H-GO Zoning: Certain parcels in approved Local Area Plans (North Hill, Westbrook, and Heritage Communities) will be rezoned to H-GO (Housing – Grade Oriented).

3. Expanded Secondary Suite Options: Both a secondary suite and a backyard suite will be allowed on the same property.

4. Parking Requirement Changes: Removal of parking requirements for backyard suites.

5. Maintaining Development Rights: Addition of Contextual Single-Detached Dwelling to R-CG to ensure existing development rights are maintained.

The City argues that these changes will make it easier and legal to build various types of homes, increasing housing options for everyone. They assure that proposed developments will still be reviewed for compatibility with the surrounding community, and that existing parks and green spaces will remain unchanged.

The Role of Restrictive Covenants

As blanket re-zoning efforts progress, some community associations and individual homeowners are turning to restrictive covenants (RCs) as a means of maintaining neighborhood character. But what exactly are restrictive covenants?

Restrictive covenants are private civil agreements between property owners, often likened to a private land use bylaw. They can place limitations on how properties can be used or developed, potentially conflicting with new zoning regulations.

It's important to note that cities typically do not consider or enforce these private agreements when making zoning decisions. The City of Calgary, for instance, views restrictive covenants as private matters to be dealt with between the parties involved, separate from any governing land use bylaw.

The Clash: Blanket Re-zoning vs. Restrictive Covenants

As cities move forward with blanket re-zoning initiatives, some communities are responding by registering new restrictive covenants on property titles. This creates a potential conflict between public policy goals and private property rights.

For homeowners considering this route, it's crucial to understand that while creating and registering these covenants is relatively straightforward, removing or amending them can be a complex, time-consuming, and costly process. It often requires court intervention and agreement from all affected parties.

The Common Law Test for RC Removal

In Alberta, removing a restrictive covenant requires a court order based on several factors:

1. Change in Circumstances: Has the covenant become obsolete due to neighborhood changes?

2. Public Interest: Does the covenant hinder community growth or development?

3. Undue Burden: Does it unfairly restrict the property owner's rights?

4. Mutual Agreement: Do benefiting parties agree to remove or modify the covenant?

The court balances these factors against the covenant's original intention and current impact.

Key Takeaways for Property Owners

1. Increased Housing Options: Blanket re-zoning could provide more flexibility in how you use your property, potentially allowing for secondary suites or different housing types.

2. Potential for Neighborhood Change: While single-family homes will remain an option, the character of neighborhoods may evolve as more diverse housing types are introduced.

3. Restrictive Covenants as a Tool: Some communities are using RCs to resist blanket re-zoning, but these are not guaranteed to prevent changes and can be challenged in court.

4. Due Diligence for Buyers: If you're purchasing property with plans for redevelopment, be aware of any existing RCs that might hinder your plans.

5. Uncertain Legal Landscape: As these conflicts between blanket re-zoning and RCs emerge, new case law may develop, potentially changing how these issues are resolved in the future.

As cities continue to grapple with housing challenges, the tension between blanket re-zoning and restrictive covenants is likely to persist. Property owners and community members should stay informed about local zoning changes and carefully consider the long-term implications of any private agreements affecting their properties.

Remember, while change can be unsettling, it also brings opportunities. The key is to stay informed, engage with your local planning processes, and make decisions that align with both your personal needs and the broader community's future.