Property 'covenants' new weapon in door-to-door battle over infill housing

The battle over new infill regulations in Edmonton has become a legal turf war, with soldiers now taking their campaign door to door.

Homeowners who don't want increased density in their neighbourhoods have found a new tool to help in their fight. A restrictive covenant, registered against the land title.

Such legal contracts are commonly used in new developments, to control the kind of landscaping, or roofing, or paint colour. Now they're being used in older neighbourhoods such as Westbrook, Aspen Gardens and Rio Terrace to prevent lot splitting, and the construction of duplexes.

Edmonton lawyer Chris Bowie has been helping homeowners in a handful of mature neighbourhoods draw up the contracts.

"The people I've interacted with are very much on board with this, not as a perfect solution, but the only thing that can be done in regard to these bylaw changes," he said. "I have been working with Westbrook, and started with the Rio Terrace community. And I'm getting inquiries from a number of other mature neighbourhoods about this thing, and its building from there."

• Infill debate continues to rage in west Edmonton neighbourhood

In April 2015, city council amended the zoning bylaw to allow anyone to subdivide a residential property at least 50 feet wide. Since then, residents have been clashing with developers.

One of last legal avenues

Bowie said restrictive covenants have become one of the last legal avenues left for homeowners opposed to the new high-density construction.

"It is a really an agreement between all the participants in the neighbourhood, and what is does, it has everyone agreeing that they won't do certain things to their property," he said. "It prevents a person from subdividing their lot, or even applying to the development authorities to subdivide their lots."

The clauses, included in property deeds, are legally binding, allowing surrounding property owners with similar covenants in their deeds to enforce the terms in court. Once the caveat is signed, the property is locked into the contract indefinitely. The property can never be subdivided or used for the construction of a duplex again, unless every single signatory in the neighbourhood agrees to release them from the agreement.

Bowie said his own neighbourhood of Westbrook was the first to launch an organized legal fight against the new development regulations, and the vast majority of homeowners have already signed into the legal contract.

He wants to be sure the neighbourhood he bought into isn't lost due to redevelopment.

'The biggest concern'

"When my family was looking to move into the neighbourhood, the character of the neighbourhood was a big part of that — the mature trees, wider lots, low density, good schools — and that's really what attracted me and a lot people to that neighbourhood. And I think that's the biggest concern."

Darren Jacknisky, who lives in Westbrook, is one of those going door to door to try to get people to sign covenants. He said he got involved because lot splitting can change the character of a community.

"You buy in a neighbourhood because of trees, green spaces, openness, and that's what is being removed by these developments," he said.

Opponents of infill have put up signs around the neighbourhood that say: "City Council. Subdivisions not need or wanted here!"

Jacknisky said he expects by mid-June owners of 80 per cent of the 226 houses in Westbrook will have signed. He said that will eliminate the uncertainty about the future of the neighbourhood.

"If you have 100 houses on a street and 85 agree, then only 15 could do it. How many of those would do it? Maybe none."

City has good infill policy

Coun. Michael Oshry said the city has an evidence-based policy that restricts the number of infill developments to one or two per neighbourhood each year. He said he understands why residents are looking at covenants as a legal options to avoid infill.

"People are passionate, and people think it's going to make a material difference to their neighbourhood," he said. "But really, when you look at one or two lots in a year over the next 20 years, in a neighbourhood with hundreds of lots, it's really not going to be a significant change. But I understand why neighbours are emotional about this."

In the end, Oshry said,only neighbours who sign the covenants will be restricted from subdividing.

"But it wouldn't prevent anybody who didn't sign, or their future generations, from splitting ... . So I'm not sure what it necessarily accomplishes, besides freezing up their land. But they're welcome to do it."