Tag Archive for: 9 Thirty Eighth

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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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