ISSUE DATE: May 29, 2012 PL120381 Ontario Municipal Board Commission des affaires municipales de l Ontario IN THE MATTER OF subsection 33(4) of the Planning Act, R.S.O. 1990, c. P.13, as amended Appellant: Tim and Charlotte Stanley Subject: Decision of Council to refuse to issue a demolition permit Property Address/Description: 140 Dinnick Crescent Municipality: City of Toronto OMB Case No.: PL120381 OMB File No.: PL120381 A P P E A R A N C E S : Parties City of Toronto Tim and Charlotte Stanley Counsel Ray Kallio Amber Stewart DECISION DELIVERED BY J. de. P. SEABORN AND ORDER OF THE BOARD Introduction The matter before the Board is an appeal by Tim and Charlotte Stanley ( Appellants ) pursuant to s. 33(4) of the Planning Act ( Act ) from the refusal of Council for the City of Toronto ( City ) to issue a demolition permit. Issues At the outset of the hearing, the Board heard argument in respect of a motion made by the City to adjourn the hearing to a date after June 6, 2012, which is the next meeting date of Council. For reasons elaborated upon below, the adjournment was denied. The issue at the hearing was whether the Board should direct that a demolition permit be issued, given a pending consideration by Council of a Heritage Report which recommends that the Appellant s property be designated under Part IV, s. 29 of the
- 2 - PL120381 Ontario Heritage Act. The City argued that the hearing should not proceed in light of the recommendation or, if the adjournment is not granted, the demolition permit should not issue, given the recommendation for designation. In the alternative, the City argued that if the Board s decision is to direct the issuance of a demolition permit, the order be withheld until after Council meets. The Appellants opposed the adjournment and argued that given the City has already issued a building permit pursuant to s. 33(6) of the Act, a demolition permit must follow. Evidence and findings Facts In support of the motion to adjourn the hearing, the City filed an affidavit sworn by Ms. Adamo, Committee Administrator for the North York Community Council ( NYCC ). No witnesses were called by the City at the hearing. Mr. Kettel, Chair of the North York Community Preservation Panel ( NYCPP ), was not called as a witness by the City but appeared as a participant. Mr. Rose, the architect retained by the Appellants, was called as a witness by the Appellants. Mr. Rose also filed an affidavit in support of the Appellants opposition to the City s request to adjourn the hearing. The facts and chronology of events were largely not in dispute. The Appellants purchased 140 Dinnick Crescent ( Dinnick property ), which is in Lawrence Park, in April 2011 with the intention of demolishing the existing home and building a new house. When they purchased the house, it was neither listed nor designated as a heritage property and that remains the case today. An application was submitted to the Committee of Adjustment ( Committee ) seeking certain variances required to accommodate a proposed three-storey home. That application (as revised) was supported by City staff, however it was turned down by the Committee. While the Appellants worked with their neighbours and the Lawrence Park Residents Association ( Residents Association ), there remained concerns related to the proposed density of the new house and the variances were not authorized by the Committee. Heritage was not raised as an issue before the Committee. Through inadvertence, no appeal was filed before the Board and a second application was made (identical to the first), refused by the Committee in March 2012 and appealed to the Board on April 4, 2012.
- 3 - PL120381 Parallel with the process of seeking authorization for minor variances, the Appellants asked Mr. Rose to prepare drawings for a new house to be built that would meet all the by-law requirements. Mr. Rose prepared the plans and on January 24, 2012 an application was made for both a building permit and for a permit to allow for the demolition of the existing single-family dwelling at the Dinnick property. In accordance with the requirements of Chapter 363 of the City s Municipal Code, the Appellants posted notice of the demolition permit application at the Dinnick property. The notice stipulated that any comments or concerns had to be made in writing before February 7, 2012. On February 14, 2012, the City issued both a building permit and a demolition permit. However, on February 15, 2012, the City advised that the demolition permit had been issued in error and a revocation notice was issued which indicated that an objection to the demolition permit had been received within the timeframe established under the City s Demolition Control By-law 1009-2006. A staff report was to be prepared regarding the proposed demolition and forwarded to NYCC for its consideration in March 2012. The matter was deferred to May 15, 2012 and NYCC voted to refuse the demolition permit application and that Council designate the Dinnick property. The building permit was never revoked and remains valid should the Appellants seek to construct a new home in accordance with the plans that do not require any minor variances. The letter of objection, dated February 6, 2012 had been prepared by Mr. Kettel in his capacity as Chair of the NYCPP. It was his testimony that a member of the Residents Association had approached the local councilor who made a motion to the preservation panel indicating a concern with the proposed demolition of the Dinnick property as it has heritage value. According to the City s Heritage Report (prepared following the letter of objection), the Dinnick property dates back to the 1930 s, has heritage value and was occupied by, and known as, the Charles Langdon House. The Langdon family sold the house to the Appellants. The February 6, 2012 letter of objection from Mr. Kettel stated that given the minor variance application had been turned down it is our understanding that a building permit cannot be issued. And without a building permit it is our understanding that a demolition permit cannot be issued (Exhibit 2). As indicated above a building permit was in fact issued on February 14 th, as was the demolition permit (with conditions). The report from Heritage Preservation Services was considered by NYCC on May 15, 2012 and staff recommended that Council designate
- 4 - PL120381 the property and if there are objections, the decision to designate be referred to the Conservation Review Board. Issuance of a demolition permit Pursuant to s. 33(4) of the Act, where Council either refuses to issue a demolition permit or neglects to make a decision thereon within thirty days of the application, an appeal may be made and the Board shall hear the appeal and either dismiss the same or direct that the demolition permit be issued, and the decision of the Board shall be final. The other relevant provisions of s. 33 of the Act are: (3) Council may issue or refuse to issue permit. Subject to subsection (6), where application is made to the council for a permit to demolish residential property, the council may issue the permit or refuse to issue the permit. (6) Application for demolition permit where building permit issued. Subject to subsection (7), council shall, on application therefor, issue a demolition permit where a building permit has been issued to erect a new building on the site of the residential property sought to be demolished. Subsection (7) referred to above provides that a demolition permit may be issued with conditions. The position of the Appellants was simply that having issued a building permit Council is required to issue a demolition permit in accordance with the clear direction set out in s. 33(6) of the Act. In fact, the City did issue a demolition permit, with conditions, and then revoked that permit the next day claiming that it was issued in error. While the basis of the revocation was that an issue with the application had been raised within the fourteen-day period that the notice of intention to demolish was posted at the Dinnick property, the Appellants position was that the issuance of the building permit (which has not been revoked or otherwise challenged) required the City to do precisely what it did, that is, issue the demolition permit. The Appellants argued that as a matter of law, it should never have been revoked. The City took the position that if Council in fact decides to designate the property under the provisions of the Ontario Heritage Act, then
- 5 - PL120381 both the building permit and the demolition permit will be void. On this basis, the Board should simply wait until Council considers the matter either by adjourning the proceedings or with holding any order. Based on the evidence and submissions of Counsel, pursuant to s. 33(4) of the Act, the Board directs that the demolition permit be issued, with conditions. The Board finds that s. 33(6) of the Act is clear. It provides that Council shall issue a demolition permit where a building permit has been issued to erect a new building on the site of the residential property sought to be demolished. That is precisely the situation before the Board. The Appellants posted the notice of their intention to demolish in accordance with the requirements of the City s demolition by-law. While the objection from Mr. Kettel was provided at the end of the day on February 6, 2012, and therefore within the fourteen-day comment period (the notice requested comment prior to February 7, 2012), the fact remains that the City issued the building permit, which remains valid. The scheme of the Act is such that under s. 33(6) a demolition permit must follow and the City followed the statutory requirements when it issued the demolition permit. The Board has stated in the past that s. 33(6) requires Council to issue a demolition permit where a building permit has already been issued (City of Toronto v. W.J. Holdings Limited, September 29, 2009, PL1071031 et al., p. 28). It was the decision of the City to subsequently revoke the demolition permit that resulted in the appeal before the Board. In arriving at this decision, Mr. Kallio s submissions regarding the importance of preserving heritage properties were considered carefully and the Board takes no issue with the City s policy objectives in this regard, nor with the important work undertaken by Mr. Kettel and the Preservation Council. What is at issue is a simple reading of the provisions of the Act as they relate to the facts of this case. The Appellants are statutorily entitled to the demolition permit they seek as they have a valid building permit for the same property where the demolition is to occur. As Mr. Rose testified, the Appellants would not have purchased the Dinnick property had it been listed or designated for heritage purposes. Heritage was not raised as an issue either by staff when they reviewed the initial minor variance application (which was revised to address density and then supported by staff), nor when the building permit was issued in accordance with Mr. Rose s alternate plans to construct a new house without the need for variances. The evidence was that the Appellants worked with the Residents Association and their new neighbours in devising their plans and secured the support of
- 6 - PL120381 City staff. Heritage was not raised and the issue was brought to the Appellants attention only after the demolition permit was revoked and following issuance of the building permit. If the City was intent on either listing or designating the Dinnick property, it should not have issued a building permit. Ms. Stewart indicated that her clients are content to have the same conditions imposed as those attached to the February 14, 2012 demolition permit and set out in the City staff report, Exhibit 1, Tab B. Decision on the motion to adjourn As indicated at the outset, the City brought a motion to adjourn the hearing on the basis that Council will consider the Heritage Report at its meeting on June 6, 2012 and a recommendation will be made that the property be designated. The Board denied the request for several reasons (delivered orally, immediately following the argument). The facts set out above and the relevant statutory provisions were argued as part of the adjournment motion. Based on the statutory framework, the Board concluded that the Appellants were entitled to a timely decision under s. 33(4) of the Act. Moreover, an adjournment would not alter the clear statutory provisions of s. 33(6) that stipulate that once a building permit is issued, the demolition permit shall follow. In addition, the Board was mindful of the time and cost associated with the appeal. The Appellants and their architect were at the hearing and ready to proceed. The City did not intend to call any expert witness in relation to heritage, although it did provide a copy of the Heritage Report as an exhibit to the affidavit filed in support of the adjournment request. The Board does not grant adjournments lightly when there is no consent and any delay would prejudice the Appellants. Decision and Order THE BOARD ORDERS that the appeal pursuant to s. 33(4) of the Act is allowed and the Board directs that a demolition permit be issued for 140 Dinnick Crescent, subject to the following conditions:
- 7 - PL120381 i. that a construction fence be erected in accordance with the provisions of the Municipal Code, Chapter 363, Article III, if deemed appropriate by the Chief Building Official; ii. that all debris and rubble be removed immediately after the demolition; iii. that sod be laid on the site and be maintained free of garbage and weeds, in accordance with the Municipal Code Chapter 623-5, and 629-10, paragraph B; iv. that any holes on the property are backfilled with clean fill; v. that the applicant for the demolition permit construct and substantially complete the new building to be erected on the site of the residential property to be demolished not later than two years from the day demolition of the existing residential property is commenced; and vi. that on failure to complete the new building within the time specified in Subsection C(5)(a), the City Clerk shall be entitled to enter on the collector s roll, to be collected in like manner as municipal taxes, the sum of $20,000 for each dwelling unit contained in the residential property in respect of which the demolition permit is issued and that such sum shall, until payment, be a lien or charge upon the land in respect of which the permit to demolish the residential property is issued. So orders the Board. J. de P. Seaborn J. de P. SEABORN VICE-CHAIR