Tag Archive for: Severance

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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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Housing Inflation by the Numbers. A Case Study.

There is a house in our neighbourhood that currently stands vacant, and it is currently for sale.

It’s a prime example of speculation in the housing market.

The house was sold in 2011 when the original owner passed away. The selling price, as we understand, was about $500,000.

The house, a 3-bedroom bungalow built around 1940, sits on a 50-foot lot and is about 1,000 sq. ft.

For the next eight years, it was rented out by the owner to a number of different tenants until it was sold in 2019.

The selling price was $1,300,000 – 2-1/2 times what it sold for in 2011.  That represents a 17.5% annual growth rate in value.

The purchaser applied to the Committee of Adjustment to sever the property and build two oversized homes. The residents objected and the Committee of Adjustment agreed with their objections, unanimously refusing the application to sever.

The owners eventually put the house back on the market for $1.8 million.

In the brief time they have held the property, they are effectively expecting a 16.6% increase in value during which time they have done nothing to add value to the property. As noted in the opening paragraph, the house currently is vacant, so it is not generating any rental income to offset its carrying costs.

In the listing, the owners suggested to potential buyers that the property had potential to be severed and rebuilt.

Let’s look at this.

Assuming the sellers gets their $1.8 million, the cost per severed lot would be $900.000. Usually, in cases of severances, the builders try to build approximately 2,000 sq. ft. of house. At a conservative estimate of $350/sq. ft. to build, the builder would be investing another $700,000 into the property, bringing the total investment to $1,600,000.

Current MLS® stats indicate an average house price of $834,497 Long Branch. This represents houses of all sizes as well as condos. It also represents sales of newly built homes as well as resales of existing dwellings. So, the price for a 3- or 4-bedroom house with 2,000 sq. ft. of space would be significantly higher. According to the MLS®, averages for 4-bedroom homes in Long Branch are about $1,600,000 which, again, represents a mix of new builds and existing homes.

If we assume the average asking price in Long Branch for a 2,000 sq. ft. home is about $1.700,000, which would net the builder only a $100,000 profit assuming everything goes as planned.

But we haven’t factored in costs such as applying to the Committee of Adjustment for the necessary variances, the commission paid to a real estate agent to sell the property, land transfer taxes or interest to carry the property while it is under development. And these probably do not represent all the costs a builder might incur. If the application has to go through TLAB because either the builder or the neighbours appeal a Committee of Adjustment decision, that can easily add another $100,000 to the cost, for hiring a lawyer, a professional planner and an arborist.

Let’s assume this property is purchased by a family who wish to have a custom home built and so they do not plan on severing the property.

Using the property value of $1.79 million and another $700,000 for construction, the owners who wish to build instead of severing would have to ask in excess of $2.5 million for their 4-bedroom, 2000 sq. ft. home, should they decide to put it on the market. That’s well above the average of $1,700,000 for a comparable property in the neighbourhood. But it’s also likely the family would live in the home for several years.

It should be noted that, between 2011 and the present, no improvements have been made to the property we described by any of the owners. So, apart from trying to sever the property, the collective owners have done nothing to add value to this property. And yet they’re expecting something in excess of a 15% return on their investment.

In the meantime, the residents on this street have a house with no neighbours to interact with, that is not being maintained and no real expectation that this will change in the near future.

And it’s not an isolated example in Long Branch. There are several properties that were granted severance approval back as far as 2015 that still have the original homes. In other words, the owners got their severance but have done nothing since.

If everyone is so concerned about housing supply, why haven’t these properties been developed?

If this isn’t speculation in one of its worst forms, it probably is close.

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Record 17th Victory for LBNA at TLAB

On January 19, 2022, TLAB issued a decision on the proposed severance of 65 Fortieth Street, overturning the Committee of Adjustment’s approval in 2019 and thereby refusing the severance and the associated construction ot two oversized homes. . This was the first application in Long Branch that was subject to the Long Branch Neighbourhood Character Guidelines.

This represented the 17th straight victory for the LBNA in opposing severance activity in Long Branch since 2018. All the more impressive, given that the LBNA has advocated at TLAB on behalf of Long Branch residents without engaging a lawyer.

In her 19-page decision, TLAB presiding member Ms. Shaheynoor Talukder commented that the applicant’s team failed to prove that the lot frontage of the proposed dwellings will respect and reinforce the existing character of the neighbourhood.

In addition, this property has a prominent White Fir . This was measured by the Applicant’s arborist to have a trunk diameter of 47 cm, so is of a size that the City’s Tree Protection regulations indicate should be protected. Ms Talukder commented that it is visually impressive and forms part of the character of the neighbourhood. The Applicant had proposed removing this tree, but Ms. Talukder did not feel they were taking sufficient measures to attempt to preserve it, as per the environmental policies in the Official Plan.

The White Fir at 65 Fortieth Street can be enjoyed as a feature tree on the Conifer Walk this summer as part of our series of Long Branch Tree Tours.

Christine Mercado, co-chair of the Long Branch Neighbourhood Association commented, saying, “This is a big win for our Neighbourhood. But it’s a joint effort. It starts with effective city policy, followed with an effective Neighbourhood Association, residents who are prepared to get actively involved and engagement with our Councillor and City Staff. The foundation this all sits on is engaged and active residents electing the right people, pushing for good policy and ensuring the City is enforcing those policies.”

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City-Driven Intensification

City Planning has proposed increasing the density in the area around Long Branch Station from a maximum density of 0.35 FSI in Long Branch to a minimum density of 0.6 FSI.

What is behind this proposed intensification and what are its ramifications for us as residents?

Affordable Housing

Excerpt from City Planning document proposing intensification targets., This excerpt is for Long Branch.

The idea behind Planning’s proposal is that it would encourage construction of more affordable housing in Long Branch and Alderwood. They’re not necessarily proposing a high rise jungle like in Mimico: they’re thinking more like basement apartments, triplexes, garden suites and so on.

Current Zoning Permissions

The portion of Long Branch that would be affected by this re-zoning is currently zoned RM. That means you already are allowed to build multi-family housing such as semi-detached homes, duplexes, triplexes, and walk-up apartments. If you want to build a triplex, you can build up to 0.6 FSI already. Same for a semi.

So, this area is already zoned with intensification in mind.

But is this really going to be the result of this proposed change in density? And is there a need for such a change?

What Is Happening

Even with these permissions, developers haven’t been building duplexes or triplexes for decades. No semi-detached homes have been built in this area in the past 15 years. Nor have any triplexes or duplexes. They have, on the other hand, been very active in trying to sever properties to build homes that go on the market for between $1.3 and $1.6 million – hardly what you could call affordable. These homes are built for single-family occupancy, with no provision for having a separate entrance for a secondary suite.

We aren’t opposed to more affordable housing. We just don’t see how the proposed policies will generate more affordable housing for people who need it.

One thing that is NOT happening on this issue – whether here or in the neighbourhoods around other major transit stations where intensification is proposed – is public consultation. We know the developers have been actively and aggressively lobbying for less restriction on density. It’s only fair that the public be given an equal opportunity before this official plan amendment gets passed by Council.

How You Might Be Affected

Two oversized homes. The result of lot severing.

Should the proposed changes in density be approved as part of this official plan amendment, you could anticipate more applications to sever properties in the area shown on the map above. Instead of builders being limited to a ceiling of 0.3 FSI, it appears the City would be giving them carte blanche to build as large as they please and, with the new regulations favouring intensification, it will be very hard for residents to mount opposition.

In step with an increase in severance applications, we anticipate there will be further erosion of the tree canopy in Long Branch. In 2009, the tree canopy in Long Branch was measured at 26.5% coverage. By 2018, this had been slashed to 15.0% – the biggest decline in all of Toronto. The City has a goal of reaching 40% tree canopy coverage by 2028 – just 7 years from now – and it appears Long Branch will fall well short of this.

Just about every development application for a new build going before the Committee of Adjustment has removal or damaging of a tree as part of the application. Uncontrolled development could cause the tree canopy in Long Branch to go even lower.

The Process

This will be discussed at the October 28th meeting, which starts at 9:30 am, after which it will go to City Council for approval in November.

What You Can Do

Because Planning is regulated and administered by the City of Toronto, we suggest you make your views known to our representative, Councillor Mark Grimes. You can reach him at his office at (416) 397-9273 or by email at councillor_grimes@toronto.ca. Be sure to ask about how much Planning has obtained input from residents.

You can watch the meeting of the Planning and Housing Committee on October 28th by clicking on the following link: http://app.toronto.ca/tmmis/decisionBodyProfile.do?function=doPrepare&meetingId=21291

Even better, by writing to the Clerk of the Planning and Housing Committee, at phc@toronto.ca you can actually speak at the meeting to ensure your views are heard. Two Long Branch residents spoke at the last meeting of the Planning and Housing Committee. Why not you?

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Severance of 90 Ash Cres. Refused at TLAB

An application to sever 90 Ash Crescent into two 25-foot lots, which had been approved by the Committee of Adjustment on May 9, 2019, was appealed and refused at the Toronto Local Appeal Body, TLAB.

In a 24-page decision dated August 12, 2021, the presiding member, Mr. Ted Yao, refused the severance application.

The hearing began on October 2, 2019; with a hiatus in 2020 due to the COVID-19 pandemic and, altogether, required 10 days of hearings.

This was a highly contentious dispute.

In his presentation to the Committee of Adjustment, the Planner representing the Applicant described the Long Branch Neighbourhood Association as NIMBY and described his clients’ actions as an ordeal requiring “A Herculean effort” to scale back their original proposal to one that City Planning and the Committee of Adjustment could consider approving.

For the residents of Ash Crescent, this application represented a tipping point. The City’s Official Plan requires that applications must be consistent with prevailing patterns of lot frontage, lot area, and density among other factors. At the time of this application, the number of 50-foot lots on Ash Crescent was roughly equal to the number of 25-foot lots. Approval of this application would mean that 25-foot frontages would become the prevailing frontage, which could lead to accelerated approvals of other lot severances on the street.

The Applicant called two witnesses – their Planner and an Arborist. The City, who changed their position mid-hearing from “Object” to “No Objections”, called only an Arborist. The residents’ team was led by the LBNA and involved 7 residents who testified. In addition, the LBNA summoned the City Planner who wrote the final report submitted to the Committee of Adjustment.

Prior to the Committee of Adjustment hearing, the Applicant revised their proposed FSI 3 times: from 1.04 to 0.92, to 0.67 and finally to 0.61. The bylaw standard for density in Long Branch is 0.35 FSI, so the applicant basically revised their density from 3 times the bylaw standard to 2 times the bylaw standard.

The Applicant pointed to a number of approved severances on Ash Crescent as part of the justification for their proposal for 90 Ash. However, 2 of these severances – at 56 and 58 Ash – have had no building activity since they were granted approval by the OMB in 2016. Both properties are owned by a Brampton-based developer who owns other properties in Long Branch.

Mr. Yao undertook some significant and detailed analysis of the data presented by both Applicant and Appellant and concluded that the proposed lot widths and FSIs did NOT reflect the character of the neighbourhood. The TLAB considers both the immediate context (the block or section of the street) and the broader context (a wider area around the subject property.)

We believe the active involvement of 7 residents contributed much to the outcome. And, once again, the LBNA was able to prevail against professional lawyers despite having no formally-trained legal person on the team.

To read the full text of the decision, please click here.

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