Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

CORRECTION NOTICE

OLT CASE NO(S).: OLT-22-003847

DECISION ISSUE DATE(S): December 1, 2022

CORRECTION NOTICE ISSUE DATE: December 15, 2022

RE: Mastracci v. Toronto (City)

Correction: Paragraphs [6] and [37] the wording is being corrected by replacing “content” to read “consent”.

Originally:

6On May 8, 2022, the Appellants submitted an appeal specifically under section 20(1)(c) “ there was an error in the application of the DC By-law” and sections 22 and 28 of the DCA on the grounds they met the burden to demonstrate that they qualify for an exemption from payment of any and all development charges or parks charges under the DCA and the Official Plan (the “OP”) and that they qualify for an unconditional content approval under the Planning Act (the “Act”).

37The Appellant did not provide factual evidence that they qualified for an exemption from payment of any and all development charges or park charges under the DCA nor that they qualify for an unconditional content approval under the Act.

Corrected:

6On May 8, 2022, the Appellants submitted an appeal specifically under section 20(1)(c) “ there was an error in the application of the DC By-law” and sections 22 and 28 of the DCA on the grounds they met the burden to demonstrate that they qualify for an exemption from payment of any and all development charges or parks charges under the DCA and the Official Plan (the “OP”) and that they qualify for an unconditional consent approval under the Planning Act (the “Act”).

37The Appellant did not provide factual evidence that they qualified for an exemption from payment of any and all development charges or park charges under the DCA nor that they qualify for an unconditional consent approval under the Act.

“Euken Lui”

EUKEN LUI ACTING REGISTRAR

Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 1, 2022

CASE NO(S).: OLT-22-003847

PROCEEDING COMMENCED UNDER subsection 22(1) of the Development Charges Act 1997, S.O. 1997, c. 27, as amended

Appellants: Miranda Mastracci Ambrish Shah Niyanta Shah

Subject: Development Charges

Description: Complaint against a Development Charge imposed under Development Charges By-law No. 515-2018

Reference Number: D08-02-21/A-00427

Property Address: 337 Maple Leaf Drive

Municipality: Toronto

OLT Case No.: OLT-22-003847

OLT Lead Case No.: OLT-22-003847

OLT Case Name: Mastracci v. Toronto (City)

Heard: November 10, 2022 by video hearing

APPEARANCES:

Parties	Counsel
Miranda Mastracci Ambrish Shah Niyanta Shah (collectively the “Appellants”)	Mark Klaiman
City of Toronto	Robert Robinson

DECISION DELIVERED BY ERIC. S. CROWE AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The matter before the Tribunal is an appeal filed by the Appellants against the decision of the City of Toronto (the “City”) Council in relation to a dismissal of a section 20 Development Charge Act (the “DCA”) complaint concerning 337 Maple Leaf Drive (the “Subject Property” / “Subject Lands”).

2The original owner Miranda Mastracci has since sold the Subject Property (transaction closing date: August 9, 2022) to Ambrish Shah and Niyanta Shah. Ms. Mastracci has consented to have the new owners replace her as the Appellant on the appeal of applicable development charges in accordance with the DCA, at the Subject Property.

3In 2021, a building permit application was submitted to Toronto Buildings to construct a new single dwelling on the lot, which would require the demolition of the existing garage. The City advised the Appellant that development charge in the amount of $93,978 would be payable. Subsequently, the Appellants filed a section 20 DCA complaint.

4On March 30, 2022, the City’s Executive Committee conducted the hearing as required by the DCA, including considering submissions made by the agent for the Appellant. At the conclusion of the hearing, the Executive Committee recommended to Council that the section 20 complaint be dismissed.

5At its meeting on April 6 and 7, 2022, City Council considered the recommendation from the Executive Committee, and dismissed the section 20 complaint.

6On May 8, 2022, the Appellants submitted an appeal specifically under section 20(1)(c) “ there was an error in the application of the DC By-law” and sections 22 and 28 of the DCA on the grounds they met the burden to demonstrate that they qualify for an exemption from payment of any and all development charges or parks charges under the DCA and the Official Plan (the “OP”) and that they qualify for an unconditional consent approval under the Planning Act (the “Act”).

HEARING

Witnesses

7John Longarini is a Manager, Operational Support, within the Revenue Services of the City, who appeared before the Tribunal to give testimony to the development charge complaint pursuant to section 20 of the DCA.

8Mr. Longarini prepared the Staff Report dated March 16, 2022, for the City of the section 20 complaint filed in respect to the Subject Property. Mr. Longarini’s witness statement was marked as Exhibit 3 to this Hearing.

9Mauro Mastracci, the father of the Appellant Miranda Mastracci, was called as a lay witness for the Appellants. Mr. Mastracci is a home builder with approximately 20 years experience. The Appellants Document Book was marked as Exhibit 1.

AGREED STATEMENT OF FACT

10Upon the commencement of the Hearing, the Parties submitted an Agreed Statement of Fact to the Tribunal which was marked as Exhibit 2.

11Agreed Statements of Fact:

1. In 1980, two lots were created municipally known as 337 and 339 Maple Leaf Drive, pursuant to the Planning Act in force at the time.
2. In accordance with the Planning Act in force at the time, 337 and 339 were created as separate lots by the registration of a deed, dated October 28, 1980, and registered as Instrument Number 789186 on November 27, 1980, in respect to the property at 337 Maple Leaf Drive.
3. In 1980, certain fees and charges to the municipality were payable as a condition of the new lot creation, prior to registration of the created lot.
4. After the building permit was issued, a garage was constructed on 337 Maple Leaf Drive.
5. On May 20, 2022, the Toronto Local Appeal Body (the “TLAB”), issued a decision and Order, with respect to a proceeding commenced before it, pursuant to subsection 53(19) of the Act, in respect of 339 Maple Leaf Drive. TLAB found as a fact that the proposed severance did not create a new lot that is independent of the existing severed lots.
6. 339 Maple Leaf Drive contains an existing dwelling, and 337 Maple Leaf Drive contains a garage only.

EVIDENCE

Appellant Submissions

12Mark Klaiman, counsel for the Appellant advised in his opening that Mr. Mastracci, the father of Miranda Mastracci, was willing to testify to explain the original consent and latest building permit application. The Tribunal noted that Mr. Mastracci failed to provide the other Party a witness statement ten days in advance of the Hearing as per the Tribunal’s Rules of Practice and Procedure. Robert Robinson, counsel for the City, noted the ten-day requirement to provide a witness statement but consented to have Mr. Mastracci testify.

13Mr. Mastracci testified that through a North York Committee of Adjustment decision in 1980, the lot for the Subject Property was created as a conveyed lot in a consent application and, as a result, it would have been subject to payment of charges applicable to land division at that point in time. The roads, sewers, storms, and other site services had been constructed in that residential subdivision, therefore all these services, which in part the DCA now seeks to charge the Appellant, were already installed and presumably paid for. In his opinion, the payment of charges made in 1980 to receive the consent certificate serves as the equivalent of paying development charges.

14Mr. Mastracci advised, his daughter (Miranda) applied for a building permit for an as of right development of a detached dwelling on a legal lot in a residential neighborhood. According to Mr. Mastracci, the current application to obtain consent to sever the lot for the purpose of a lot addition made in 2021, was a technical severance for legal purposes only to adjust property lines, and not to create a new lot. Mr. Mastracci contends the only reason a new application for a builder’s permit was required was that the building permit file from 1980 could not be located or no longer existed.

15According to the Agreed Statement of Facts (the “ASF”), the 339 Maple Leaf Drive and the Subject Lands in 1980 were severed into two separate lots. 339 Maple Leaf Drive has an existing 2 storey dwelling and the Subject Lands contains a garage only.

16Mr. Klaiman asserts the DCA introduced in 1997, is not retroactive and it expands the scope of services and capital project costs financed under prior provincial legislation. Mr. Klaiman advised the DCA did not exist in 1980. When the application was made to the Committee of Adjustments, the system then in place, required payment of fees and charges, as a condition to the granting of the application for severance. The fees and charges had to be paid before the City would sign off on the deed. Once all conditions were complied with (including payment of fees and charges) the City would sign off the deed, which could then be registered on Title, formally severing the lots. In this case, the deed was registered November 27, 1980, as Instrument Number 789186 (Exhibit 1 – Tab 1 and ASF – Exhibit 2).

17Mr. Klaiman highlighted that development charges are a form of tax, and that taxing statutes will be interpreted in favour of the taxpayer as set out in OMERS Realty Management Corp. v. Peel (Regional Municipality), 2000 CarswellOnt 3138.

18Mr. Mastracci noted an email dated June 17, 2021, addressed to himself from the City Building records Department - North York District concerning the building permit status of the Subject Property. Mr. Mastracci testified the City issued a building permit for 337 (Exhibit 1 – Tab 3) and that he inquired from the City Building Records Department, and that his inquiry was for 337 only. He testified that 339 had already been constructed and there was no reason for him to inquire about that property. According to Mr. Mastracci the letter received from the City refers to a building permit issued for 337 only. The permit has never been revoked. Mr. Mastracci contends, the owner paid the application fees and acquired building rights in compliance with local zoning laws.

19In summary, Mr. Klaiman advised while the purpose of development charges is to recover the capital cost of infrastructure triggered by new development and growth, the applicable development charge on an existing lot is capped and limited to the recovery of new necessary infrastructure to service the proposed development in accordance with section 41 of the Act. Therefore, the Appellants request that a building permit be issued at the Subject Property and that no development charge be applied consistent with the DCA, OP policies, the Act and the Provincial Policy Statement.

City Submissions

20Mr. Longarini testified that City staff had reviewed the complaint and are of the opinion that the Development Charges By-law No. 515-2018 (the “DC By-law”) was applied properly, and no error was made in determination of the applicable development charges.

21Mr. Longarini testified the Staff Report recommended to City Council that the DC By-law has been properly applied to the development project located at the Subject Property and for City Council to dismiss the complaint dated October 25, 2021, with respect to the Subject Property filed pursuant to section 20 of the DCA.

22Mr. Longarini asserts the project falls within the definition of development under the DC By-law, requiring one or more of the actions referred to in section 415-5, namely the issuing of a permit under the Building Code Act. Where a building permit is being issued for construction of a building, it is considered a development and development charges are applicable unless an exemption applies.

23Mr. Longarini advised where a demolition permit is issued within a 60-month period immediately prior to the date of submission of a complete building permit application with respect to a building or structure to be converted from one principal use to another principal use on the same land, the DC By-law provides for a reduction that can be applied against development charges deemed payable. Mr. Longarini testified as no demolition permit was issued within this 60-month time frame on the structure at the Subject Property, the redevelopment reduction cannot be applied.

24Mr. Longarini informed the Tribunal, development charges are applied in accordance with a by-law enacted by City Council pursuant to provisions of the DCA, under section 20 of the DCA, a complaint may be brought to City Council on one of three grounds:

a. the amount of the development charge was incorrectly determined;

b. whether a credit is available to be used against the development charge, or the amount of the credit or the service with respect to which the credit was given, was incorrectly determined; or

c. there was an error in the application of the development charge by-law.

25The City's DC By-law defines development as follows:

Any activity or proposed activity in respect of land that requires one or more actions referred to in 415-5A and includes a trailer or mobile home park, the redevelopment of land or the redevelopment, expansion, extension or alteration, or any two or more of them, of a use, building or structure

26Section 415-5A (7) of the DC By-law provides that:

Development charges shall be imposed on all land, buildings or structures that are developed if the development requires:

(7) The issuing of any permit under the Building Code Act in relation to a building or structure.

27Mr. Longarini advised, as the proposed addition and interior alterations to convert a detached garage into a single-family dwelling require a building permit to be issued and therefore meets the above definition, it is the City's position that development charges are applicable.

28Mr. Longarini informed the Tribunal, section 415-6 outlines the exemptions from development charges that may be applicable to certain types of development projects. Section 415-6A (1) of the DC By-law provide exemptions from development charges for intensification of housing as follows:

Development charges shall not be imposed with respect to the residential development of land or buildings if the only effect of such development is:

a) An enlargement to an existing dwelling unit;

b) The creation of one or two additional dwelling units in an existing single detached dwelling; or

c) The creation of one additional dwelling unit in any existing semi-detached dwelling or other existing residential building

29Mr. Longarini testified, as this project does not meet one of the above criteria relating to housing nor any of the other listed exemptions in section 415-6, an exemption from development charges would not apply.

30Mr. Longarini advised the DC By-law also provides a reduction of development charges for redevelopment of dwelling units or rooms that will be demolished or converted from one principal use to another principal use on the same land.

31In Mr. Longarini’s opinion, the development project for the Subject Property is not eligible for a reduction of development charges as a demolition permit was not issued within the prescribed sixty-month period, nor does the existence of a building permit issued in 1980 for the construction of the detached garage satisfy the above criteria. Furthermore, the reduction would only be available for the demolition of an existing single detached dwelling unit; the demolition of the existing garage does not entitle the owner to a reduction in development charges payable.

32In summary, Mr. Longarini advised based on the interpretation of the DC By-law, it is his opinion that the proposed structure constitutes a development. Any prior payments made in the form of lot levies or the building permit previously issued for the existing structure do not exempt or reduce the amount of development charges payable at this point in time, and therefore development charges were correctly applied.

33In closing submissions, Mr. Robinson contends the building permit history for these two properties has no relevance to the issues before the Tribunal as the property has been occupied only by a garage structure for approximately 40 years. Mr. Robinson argues that Mr. Mastracci provided no proof of evidence and concluded that the building permit issued in 1980 was for the dwelling currently sitting on property at 339 Maple Leaf Drive and that no permit was ever issued for a residential dwelling on the Subject Property.

34In regard to the Appellants argument of section 14 of the former DCA, Mr. Robinson submits nether the current DCA nor the City’s DC By-law provide any recognition of previous payments of this type. Section 14 was repealed with the enactment of the current DCA in 1997. The current DCA does not contain any provision similar to section 14 of the former DCA.

35Mr. Robinson referenced two OMB decisions Barrie (City) Development Charges By-law No. 99-172 (Re), [2004] O.M.B.D. and Bardhan v. Durham Region, [2014] O.M.B.D. No.527, concerning “demolition credits” such that there is no reduction in development charges unless an existing dwelling is demolished within a defined period prior to a building permit application. According to Mr. Robinson, this development is not eligible for this reduction of development charges payable because the section applies only to the demolition of an existing dwelling unit. Mr. Robinson contends the demolition of a garage does not entitle the owner to the reduction based on the plain reading of the DC By-law.

FINDINGS AND DISPOSITION

36In determining this matter, the Tribunal accepts and adopts the evidence and opinion provided by Mr. Longarini. The Tribunal is persuaded by the evidence that the decision of the City Council of the section 20 DCA complaint was applied properly by the City and the withholding of a building permit until the charge of $93,978 is collected is proper and the amount was never in dispute.

37The Appellant did not provide factual evidence that they qualified for an exemption from payment of any and all development charges or park charges under the DCA nor that they qualify for an unconditional consent approval under the Act.

38The Tribunal finds that the City’s DC By-law 415-5 namely, the issuing of a permit under the Building Code Act is clear. Any prior payments made in the form of lot levies, or otherwise, in respect of the 1980 severance do not exempt or otherwise reduce the amount of development charges payable for the 2021 building permit.

39The Tribunal notes the email from the Toronto Buildings that no building plans were available from 1980. However, as the City pointed out which the Tribunal agrees, they did locate one permit in their ledger for a two storey house and a garage dated in 1980 and a demolition record for a one storey house. Therefore, the Tribunal finds the building permit issued in 1980 was for the dwelling currently sitting on property at 339 Maple Leaf Drive and that no permit was ever issued for a residential dwelling on the Subject Property.

40The evidence has shown there currently exists a garage on the Subject Property, and that in 2021 the Appellant applied for a permit to construct a new dwelling on the Subject Property. The Appellant’s proposed addition and interior alterations to convert a detached garage into a single-family dwelling require a building permit to be issued. Under the DC By-law this is considered a development and development charges are applicable unless an exemption applies pursuant to section 415-6.

41In Mr. Longarini’s opinion, which the Tribunal agrees, the proposed development is not eligible for a reduction of development charges as a demolition permit was not issued within the prescribed sixty-month period.

42The Tribunal finds, the reduction would only be available for the demolition of an existing single detached dwelling unit. In this case, the demolition of the existing garage does not entitle the owner to a reduction in development charges payable.

43The Tribunal does not find the arguments of the Appellants persuasive with the Appellant’s position that the DCA introduced in 1997, is not retroactive.

44The Tribunal agrees with the City and finds there are certain transition provisions in section 17 of Ontario Regulation 82/98 and current DCA which established a process for the recognition of these types of historic payments. Unless the Appellant has applied for and was given recognition for the 1980 payments, there is no legal basis for claiming a ‘credit” for the payments, unless those credits are described in an agreement.

45The Tribunal finds there was no evidence presented that the Appellant had applied for or was given recognition for the 1980 payments, or that an agreement was made.

ORDER

46THE TRIBUNAL ORDERS that the appeal is dismissed.

“Eric S. Crowe”

ERIC S. CROWE MEMBER

Ontario Land Tribunal Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.