Petitioners say they want to preserve the neighbourhood’s ‘residential character.’ But it appears other projects have been allowed to proceed despite decades-old restrictive covenants.
Mike Van Capelle purchased a 1960s-era house that was falling apart in the Garibaldi Estates neighbourhood of Squamish with a vision to turn it into a fourplex.
The house has been demolished and the site is prepped. Construction signs and fencing are up. An excavator is in place. He’s ready to pour a foundation.
But the site remains quiet.
Neighbours who live next door are petitioning the courts for an injunction to halt the project. Their properties, and others, are bound by decades-old statutory building schemes or restrictive covenants on their land titles that don’t allow more than one dwelling per lot.
“The existence of the building scheme was an attractive feature to us, as it provided us with reassurance that the subdivision, which was low density residential and made up of modest one- or two-storey single family dwellings, would remain that way in the future and that its trees would be preserved,” Dennis Smith wrote in an affidavit accompanying the court case he filed with his wife, Andrea.
Van Capelle and his company, Clearwater Park GP Inc., want to build and sell four 2,000-sq.-ft. homes in a townhouse-style layout.
They have approval from the District of Squamish and a letter from a Squamish senior director of community development stating they should be allowed to proceed.
There have been “many contraventions of the covenant that have occurred over the past 40 years in the neighbourhood,” the letter states.
For example, there are already secondary suites and laneway homes that have long been contrary to the restrictive covenants.
The letter, dated Oct. 1, 2024, shortly after the district issued a development permit, says that district staff “have no intention to observe the covenant restrictions.”
Reached for comment this week, the district said it was aware a petition had been filed in B.C. Supreme Court and that it would be inappropriate to comment.
Van Capelle said he’s frustrated over the delays and that the province should have addressed these old covenants before rolling out legislation encouraging more density.
“Frustrated that the NDP didn’t think to deal with this in their Bill 44 policy and that old, antiquated covenants can slow down much needed housing from being built and that money that could be spent to build more housing is being spent on legal issues.”
Others are closely watching how the case develops.
Daniel Winer, executive lead at Small Housing B.C., cited the case in a recent column published online.
“The irony?” he wrote. “The same covenant, which dates back decades, has been routinely ignored by homeowners in the neighbourhood for years. But when a gentle-density project — aligned with the province’s goal of creating more housing in existing neighbourhoods — was proposed, it became a vehicle to preserve the status quo and prevent new homes from being built.”
The province has acknowledged that its legislation for municipalities to bring in zoning that allows for multiple housing units on all lots doesn’t override these restrictive covenants. It has repeatedly told property owners to seek legal advice.
The restrictive covenant at the centre of the Squamish case was registered in 1959. The original grantor of the covenant was a corporation called Garibaldi Park Estates Ltd., which dissolved in the early 1980s.
Van Capelle said there are almost 70 properties in the neighbourhood tied to the covenant. He said the petition for the injunction was filed after he tried to meet with the neighbours.
“They came down to the lot fairly well-organized and fairly angry about what we were doing. That meeting didn’t really go well. We didn’t see at all eye-to-eye and, then, we left that meeting to let them know that, ‘Hey, we are still intending to move forward with this project,’ ” said Van Capelle.
The Smiths’ petition said they thought the restrictive covenants would be “an important and binding safeguard that would ensure the neighbourhood maintained the residential character it had at the time. We never expected there would be multiple family dwellings on single lots in the subdivision, let alone right beside our home.”
Other neighbours who filed affidavits in support of the Smiths’ petition said they were concerned that the fourplex would lead to increased noise and traffic, and reduced walkability and privacy. Some acknowledged that secondary suites and laneway houses have already contravened restrictive covenants, but they don’t see these as having the impact that this project would.