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9 Thirty Eigthth – TLAB Review

On May 15, 2018, Ms. Burton issued her decision, which upheld the COA’s approval of the severances and variances for 9 Thirty Eighth Street.

Once again, I was out of the country on business, with no access to my computer or support network, when a significant decision was set forth by an adjudicating body.

When I read Ms. Burton’s decision, I felt it was unfair and unfounded.  It seemed as though she had ignored the hard numbers presented by the City’s planner and myself and relied instead on the opinion of the builder’s planner, who presented little in the way of numeric evidence. She seemingly ignored the testimony of the City’s Urban Forestry witness, who urged refusal in order to preserve the 3 mature trees at the front of the property – evidence that was unchallenged by the arborist for the builder, who failed to appear.

TLAB Request for Review Process

According Under TLAB Rules, it is possible to appeal a decision made by a TLAB member through what is called a Request for Review. However, anyone who wants to request a review must do so within 30 days of the date the decision was released. In my case, that left me less than 3 weeks to make a case for having Ms. Burton’s decision reviewed.

Review requests must be in the form of an affidavit and describe:

  • the reasons for the request;
  • the grounds for the request;
  • any new evidence supporting the request; and
  • any applicable Rules or law supporting the request.

The grounds for such a request could include one of more of the following:

  • The TLAB acted outside of its jurisdiction;
  • The TLAB member violated the rules of natural justice and procedural fairness;
  • The TLAB member made an error of law or fact which would likely have resulted in a different order or decision;
  • The TLAB member had been deprived of new evidence which was not available at the time of the Hearing but which would likely have resulted in a different order or decision; or
  • The TLAB member may have heard false or misleading evidence from a Person, which was only discovered after the Hearing, but which likely resulted in the order or decision which is the subject of the request for review.

Grounds for Review

My concerns about how Ms. Burton treated the planning and forestry evidence represented, to me, an error of fact, if not an error of law.  In addition, I felt deprived of the opportunity to present evidence that nearly 50% of the properties on my block were owned by builders and that the severance at #40 went unchallenged because most of the prescribed notices about the Committee of Adjustment would have gone to builders or tenants who had no interest in opposing such an application. In her decision, Ms. Burton stated, “There was no public opposition to the recent severance at no. 40 as it was not appealed. … The City did not appeal the much less desirable “soldier homes” and lot division at no. 40 across the street from the proposed. That development is now part of the street and neighbourhood fabric.”

By way of commenting on references in the decision to other severance applications in Long Branch, the OMB seemed to tell residents that precedent did not play a role in how they adjudicated subsequent applications. Yet they conveniently remind residents that these approved severances were now “part of the neighbourhood character” and therefore should be considered in evaluating future severance applications.

“Similarly, in 40 37th Street, (Oct. 24, 2017, PL 161248), with the same City witnesses, the panel found that if the application for severance were granted, the lots would be the smallest on the street (para. 32), but that these would not constitute a precedent.” [N.B. this application was approved by the OMB]

“On the issue of ‘precedent’, he [OMB member Krzeczunowicz] observed: ‘It is certainly true that severed lots can subsequently be used to justify further severances because, once divided, they become part of the neighbourhood character.’” 2425456 Ontario Inc. v Toronto (City) OMB (PL160520) heard November 14, 2016 (‘2425456’) re 30 Thirty Sixth Street.

To review exactly how the hearing was conducted, I first sought out transcripts from the hearing, but found that TLAB did not prepare transcripts. They did, however, have audio recordings, so I ordered copies of the recordings for both days of the hearing.

The audio recordings were close to being useless. I believe that, while microphones were available in the hearing room, either some were not turned on or some people were not speaking into the microphones because the audio was very faint. I was able to improve the sound quality (primarily the volume) by running the recordings through sound editing software, but not everyone would have the knowledge or expertise to do this. I also used the sound editing software to annotate specific sections in the recordings.

I had to listen to the entire two days of testimony and arguments several times to grasp the nuances of what was said and to document specific passages accurately in my Review Request.

In her rationale, Ms. Burton felt the builder’s expert planning witness was more credible than what was presented by the City’s planner and two residents – myself and David Godley, a long-time Long Branch resident and retired urban planner. She dismissed the City’s planning evidence saying that they defined the neighbourhood as a small stretch of homes along one side of Thirty Eighth Street – a pretty clear misinterpretation of what was presented to her. She also seemed to dismiss the hard numbers in the analysis presented by the residents which showed that what was proposed do not conform to the existing character of the neighbourhood.

The truth is that the City planner and the residents presented much the same data, looking not only at Thirty Eighth Street, but also a much bigger study area covering Lake Promenade to Lakeshore Boulevard and from Thirty Sixth Street to Fortieth Street – not just one side of Thirty Eighth Street.

A deeper look at the data show that narrower lots are mainly found close to Lakeshore Boulevard while lots closer to Lake Promenade, where 9 Thirty Eighth is located, tended to be primarily 50-foot lots. This was presented during the TLAB hearing, but there is no reference to this in Ms. Burton’s decision.

The following are three slides from my presentation that, I think, show a much different picture than what the builder’s planner painted.

The first slide shows that 50 feet is the prevailing frontage in the neighbourhood study area, that represented over 300 properties. The second slide shows the same pattern on Thirty Eighth Street. The third slide shows the density of the proposed new homes compared to the existing homes on Thirty Eighth Street, clearly showing what was proposed did not reflect what was already on the street and that the severance at no. 40 Thirty Eight, which the builder’s lawyer repeatedly referred to, was even further removed from the pattern for the street.

Bar chart showing the number of lots in various ranges of lot frontage
Bar chart showing distribution of lot frontages on Thirty Eighth Street

Ms. Burton also characterized this situation as being different from a similar TLAB hearing on Thirty Sixth Street (38 Thirty Sixth), where I had used the exact same data and presentation format to lead to a refusal of a proposal to sever that property.

Submitting the Request

I assembled my case and exhibits. I wrote up my case in the form of a business letter, expressing my concerns and grounds for the review. I had to take all of this to a lawyer to have it notarized for submission to TLAB. I told the lawyer I was supposed to submit my materials in the form of an affidavit and asked if my business letter format qualified as an affidavit. She replied, “It will be once I sign it.”

I then had to scan all the hard copies into PDF documents – the format TLAB requires for submission – so I could submit by email. I phoned the TLAB offices to alert them that I would be sending a Request for Review and confirmed the date I proposed for submission was acceptable. TLAB Rules say that Requests for Review must be submitted within 30 days of the date of the decision, though it was not clear when the 30 days started – the date of the decision or the day after (it was the latter).

I emailed my completed Request for Review form and affidavit to TLAB on June 15, 2018, copying the lawyers for the City and for the builder which, though not stated explicitly in TLAB’s Rule, seemed to me to be the appropriate protocol.

One problem cropped up when I made my submission. Among the evidence I was submitting were the recordings of the TLAB hearing and the video recording of the Committee of Adjustment hearing. TLAB had no standards for audio or video evidence and, in any event, the files were very large and hard to send via email. I offered to create a zip file to compress the files and send them in a single folder, but staff at TLAB did not know how to handle zip files. I also asked if I could submit the audio and video files via a shared folder so TLAB staff could download from there.

I finally managed to get the video file to TLAB but they informed me they could not upload to the case file because the case files did not support audio or video evidence.

I believe (though I could be mistaken) this was TLAB’s first Request for Review under its Rules of Practice and Procedure.

The Review Decision

After June 20th, I heard nothing from TLAB to verify that my Request for Review had been accepted. Then, on August 3rd, a decision came down from the Chair of TLAB, Mr. Ian Lord, overturning Ms. Burton’s decision and refusing permission to sever the property.

I felt great relief from this decision. It seemed like someone finally listened to the residents.

This, unfortunately, is not the end of the story. Tune in next week for the next instalment.

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EHON Multiplex Comments from LBNA

Expanding Housing Options in Neighbourhoods (EHON) is a City-wide program to increase the number of housing units available in hopes of curbing rapid escalation in prices for homes and for rents in rental units. The program aims to create more low-rise dwelling units including duplexes, triplexes and garden/laneway suites.

Among the recommended revisions:

  • Inclusion of provisions in Policy 4.1.5 of the Official Plan to help ensure new multiplex units fit with neighbourhood character
  • stronger protections for existing trees when new multiplex units are built.
  • a reminder that Long Branch already has zoning that permits multiplex and semi-detached home construction, but only single detached homes are being built by developers.

The point is to ensure new multiplex units are designed to fit in with neighbourhood character and that Long Branch has a mix of low-rise housing types that show that multi-family dwellings can exist in harmony with detached single-family homes. As well, the City should be taking steps to ensure that environmental policies in the City’s Official Plan regarding protection of mature trees, which are frequently taken down to make way for new house construction, are better enforced.

The full text of our letter to EHON Toronto appears below

 

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LBNA Deputation – Environmental Policies

Planning & Housing Committee – May 31, 2022

On Tuesday, May 31sr, the LBNA deputed to the City’s Planning and Housing Committee on environmental policies proposed for Official Plan Amendment 583 (OPA 583), regarding stronger protections for permeable landscaping and mature trees.

Our deputation can be heard in the video below

YouTube player

Below is the text of our letter to the Committee.

To learn more about the City’s review of the Official Plan, click here.

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9 Thirty Eighth – The TLAB Appeal

Because I live immediately across the street from #9 Thirty Eighth, I filed an appeal of the COA’s decision to the Toronto Local Appeal Body, at the time a newly-formed tribunal to replace the Ontario Municipal Board. The City also filed an appeal of the decision. I subsequently learned that the City was appealing the COA decision because it went against the advice of City staff.

This was the first TLAB appeal for a property in Long Branch – although, as it turned out, it was not the first property in Long Branch to be heard by the TLAB. (We’ll discuss this further in a future post)

Party or Participant?

At TLAB, you have to choose to be either a Participant or a Party. Participants can present evidence, but cannot cross-examine other witnesses. Parties have the authority to call witnesses and to cross-examine witnesses called by the City and the Applicant. I chose to be a Party because, although I am not a lawyer, being a Party would give me the same status before the TLAB as a lawyer.

A Call for Accountability

To me, the Committee of Adjustment’s decision to approve 9 Thirty Eighth reflected carelessness and bias. Over the period from 2011 to 2017, (prior to the formation of the LBNA) the COA approved 67% of the severance applications they heard. More concerningly, during this same period, the OMB approved severances in 97% of the appeals they heard. And In 2015, EVERY severance application before the COA and OMB were approved.

I sent a letter to Michael Mizzi, who was, at that time, Director of Zoning and Committee of Adjustment for the City about the process for reviewing a COA decision. I was informed that I could appeal a decision by the COA to TLAB, but that members of a COA panel were immune from prosecution.

So, I sought to summon two members of the Committee of Adjustment to testify at the TLAB hearing. This was one factor in my choosing to be a Party. I wanted them to testify, under oath, about how they reached their decision, the analysis they undertook and to explain why they chose to not follow the recommendations from Planning and Urban Forestry.

However, the Chair of TLAB, Mr. Ian Lord, would not allow me to summon these witnesses. He explained that TLAB hearings were de novo, which means a fresh evaluation of the evidentiary merits of a development proposal as if we were presenting arguments for the first time. The process followed by a Committee of Adjustment was considered irrelevant: only the outcome or decision was relevant.

Prior to the hearing, the lawyer for the City invited me down to her offices at Metro Hall so we could discuss the case. We spent about an hour together. She explained that as a lawyer for the City of Toronto, she represented the interests of the City and should not be considered to represent the interests of residents. That was my role. However, she was helpful and gracious and we agreed the evidence we had strongly pointed to a different decision than what the COA made.

All Parties received TLAB’s Notice of Hearing notice on June 21, 2017, with the TLAB Appeal scheduled for October 17, 2017. However counsel for the Applicant requested an adjournment at the beginning of the hearing to allow him time to find an arborist who could provide expert testimony about the impact of the proposed development on the mature trees located on the property. Both The City’s lawyers and I felt this was a reasonable request and we agreed to an adjournment.

The TLAB Appeal Hearing

The hearing was conducted, with Ms. Gillian Burton presiding, over two days – April 16 and 17 in 2018.

On the first day of the hearing, there was an ice storm. Considering that I would have to get from Long Branch to Yonge and Eglinton, where TLAB has its offices, I decided it made sense to take the TTC rather than risk traffic tie-ups. The subway was slow and service was halted between some stations while TTC crews tried to clear the tracks and switches. I was late for the start of the hearing.

Ms. Burton seemed to have no appreciation that I was a Party and commenced the hearing in my absence. I had no way to let TLAB staff know that I expected I would be delayed because there is no cellphone service in TTC tunnels, where we sat out the delays.

When I finally did arrive, I was seated immediately by her right elbow. Somehow, Ms. Burton seemed oblivious to my presence and passed over me in allowing the lawyers to ask questions of witnesses. Ms. Burton also did not seem to acknowledge that I was a lay person nor did she try to explain to me the procedures used in a hearing and clarify what I could and could not do.

The Applicant’s Expert Planning Witness submitted testimony that was heavy on opinion and short on data to support that opinion. This contrasted with more data-driven analysis from the City’s Expert Planning Witness and from the residents, which clearly showed the proposed severance and oversized homes were inconsistent with the character of Long Branch.

TLAB’s rules on whether or not Parties can give testimony suggested that, as a Party, I could not present evidence. I had done a lot of analysis, but needed a way to be able to bring it forward, So I asked my wife to become a Participant so she could present the data. She underwent cross examination by counsel for the Applicant.

The City’s Expert Forestry Witness described the trees on the property in detail, explaining why they were of protected size and therefore needed to be preserved according to the City’s environmental policies. While the Applicant submitted an arborist report suggesting the trees were not healthy, the arborist failed to appear before the hearing to testify or allow for cross-examination of his submission.

During the hearing, counsel for the Applicant repeatedly made reference to two severances that had been granted on Thirty Eighth Street without opposition, which, in their minds, provided ample justification for their client’s proposal.

However, I knew some reasons why there had been no opposition to these severances. At the time, over 40% of the properties on Thirty Eighth Street were owned by non-residents. Some were triplexes rented out to tenants. Some were detached houses rented out to tenants. But others were homes on 50-foot lots that had been purchased by developers intent of severing. Non-resident owners and tenants have little interest in getting involved in community issues such as development. And, in the case of one of the severances, the original property had been in bad repair, was being occupied by loud, partying tenants and, in the words of one neighbour, “Anything would have been better than to continue to have to put up with that”. So they didn’t object.

My wife didn’t feel comfortable describing this when she was testifying. For starters, the neighbour’s comments above would have been inadmissible as they represented hearsay. And my wife was not in on the conversation, so she would have been testifying about something I had described as having been said by someone else.

I tried to bring this up in closing arguments, but counsel for the Applicant kept objecting on the grounds that I was presenting evidence. So I eventually just gave up.

On May 15, 2018, Ms. Burton issued her decision, which upheld the COA’s approval of the severances and variances.

Next week: The fallout from the TLAB decision.

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9 Thirty Eighth Street – A Long Journey

Over the next several weeks, we will be posting a series of articles on the changing face of development in Long Branch.

We’re starting with a story about the case of 9 Thirty Eighth Street because it shaped the way the LBNA came to oppose developers and provided multiple insights and lessons that helped us become so successful in doing so.

On April 4, 2020, The Divisional Court rendered a Decision denying the appeal of a TLAB Review Request that refused an application to sever the property at 9 Thirty Eighth Street. This closed out a lengthy battle against one developer that began on May 4, 2017.

The LBNA asked me to describe the experience because I was intimately involved in it from the outset.

The Beginnings

In 2015, a builder purchased the property at 9 Thirty Eighth, in the western part of Long Branch, from an elderly couple and, after renting out the house for a couple of years, the new owner applied to the Committee of Adjustment to sever the property and build two oversized homes. The house on the property was a one-story house built around 1931 on a 50-foot lot. In front of the house are a large, mature Ash tree and 2 similarly large Silver Maples.

Like several of my neighbours, I wrote a Letter of Objection to the Committee of Adjustment.

On May 4, 2017, the Committee of Adjustment heard the application and unanimously granted the severance and all associated variances. However, I was unable to attend the hearing because I was in Africa on business.

While severance applications were a common occurrence at the Committee of Adjustment, what distinguishes this is that the COA set aside overwhelming evidence against the proposal. City Planning felt it was inappropriate and recommended refusal.  Urban Forestry expressed concerns that the proposal would result in several mature trees being removed. Seven residents spoke out against the proposal, arguing the variances were not minor and that other severances in the neighbourhood were being used as precedents to justify further severances and thereby change the character of the neighbourhood. Over a dozen residents submitted letters of objection to the proposal, with only a single letter from a resident expressing support for the proposal. Councillor Grimes wrote a letter recommending refusal.

The written decision simply stated the proposal, in the unanimous opinion of the COA panel members, met the “4 Tests” described in The Planning Act. There was no mention of who spoke or what they said. Nor were there any details about why the panel chose to overrule the opinion of City Planning.

On my return to Toronto, wanted to see and hear exactly what was presented to the COA for this hearing. I learned that COA hearings were video recorded and that I could purchase a copy of the recording for this hearing by going down to City Hall.

The builder represented himself at the hearing and his justification was that all the variances were minor. There was no other evidence to support why his proposal should be approved. No one else spoke up in support.

But what concerned me the most was a post-hearing conference between the Panel Chair, Ted Shepherd, and two of his fellow panel members (which could only be heard on the official recording and was not meant to be heard by the public), Mr. Shepherd can be heard commenting that “There’s almost no lot-splits in that part of Long Branch [south towards Lake Promenade]” and “ When you take this neighbourhood at a more micro scale, this [their decision] was precedent-setting”

Effectively, Mr. Shepherd acknowledged there was little precedent to justify their decision.

Coming Next Tuesday

Stay Tuned! The story of 9 Thirty Eighth Street continues next Tuesday with the TLAB appeal.

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We Need Housing that Families Can Afford

When we go to the Committee of Adjustment or TLAB to oppose severance applications, we regularly hear the Planners hired by the builders say that their clients are increasing the supply of housing available to “young families”.

It sounds good, doesn’t it? The builders are helping young families get into the housing market.

You might think this post was going to address affordable housing in the sense of increasing the supply of affordable rental housing or housing for low-income families. Instead, we’re talking about housing that an AVERAGE family can afford.

If you follow the real estate listings in Long Branch, you’ll find that the average price of a home is $834,000. This reflects a mix of house sizes as well as condos and single detached homes.

Source: Zolo.ca

If you narrow this down to single detached houses, you’ll see listings in the range of $1.1 million to $1.7 million. From what we see, the lower end of this scale represents resale homes – a mix of bungalows and modest 2-story homes with 3 or 4 bedrooms.

The upper end of the scale represents homes that have recently been built. Usually, these are larger (approx. 2500 sq ft.), which is what builders say the market wants. And many of these homes are built on smaller lots – often 25-foot frontages – that do not leave much room for gardens or playing area for young children in the back yards.

This begs the question of whether these newly-built homes are within reach of “young families”

The Central Mortgage and Housing Corporation helps first time buyers get into the housing market by offering insurance on mortgages.

According to the CMHC, if you want to buy a home with a down payment of less than 20%, you’ll need mortgage loan insurance. This protects your lender in case you can’t make your payments.

CMHC mortgage loan insurance lets you get a mortgage for up to 95% of the purchase price of a home. It also ensures you get a reasonable interest rate, even with your smaller down payment.

Mortgage loan insurance helps stabilize the housing market, too. During economic slumps when down payments may be harder to save, it ensures the availability of mortgage funding.

However, if the home you want to buy is worth over $1 million – which is more the rule than the exception in Toronto – CMHC does not offer mortgage insurance.

Many mortgage lenders use a CMHC tool called the debt service ratio to determine if potential house buyers represent an acceptable risk. This means looking at the total household monthly income relative to expenses such as heat, hydro, gas, vehicle payments, loan payments as well as the projected mortgage payments to determine just how much house people can afford to buy.

To illustrate, let’s look at an example.

Assume a couple want to buy a home that’s on the market for $1.5 Million – about the middle of the range for newly constructed homes in Long Branch. Let’s also assume they are moving from a rental apartment into their first home and are able to come up with $300,000 as a down payment. This represents 20% of the value of the home.

They want to take out a 25-year mortgage, which would be at 2.5% per year. This would result in monthly payments of $5,383.40.

Now let’s look at their monthly expenses.

Property taxes in Toronto average about 0.45% of the assessed value, which we will assume is the $1.5 million they expect to pay. Their monthly property taxes would work out to $563.75.

Both husband and wife have credit cards and their combined balance each month is $600. Heating their new home could be expected to cost of the order of $200 per month for gas or oil.

When we add up all these expenses, we get monthly expenses of $6,747.15.

The threshold lenders use when determining if a client is credit-worthy is that monthly expenses not represent more than 40% of the combined income.

Using this, for our couple wanting to buy a $1.5 million home, their household income before taxes would have to be at least $202,414. We’ve been very conservative on our estimate of credit card debt and we haven’t allowed for a car loan or lease.

In Toronto, the average household income is $102,721, based on 2015 census data. However, households with incomes over $200,000 represent less than 10% of all households. Household incomes over $200,000 are the exception, rather than the rule.

Such high income levels are not characteristic of “young families”. They represent the elite, not average or typical small families.

So, it doesn’t sound like our young family could afford one of the new homes being built. They might, however, be able to afford something closer to the average in Long Branch. It might be more modest than one of the newer homes, but it most likely will have character and be well-built. And it would be affordable for them. And an entry point into the housing market.

So, a message to planners: please don’t insult our intelligence by trying to pass off developments that will be sold at the high end of the price spectrum as being a way to help “young families” participate in the housing market. The numbers just don’t add up!

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