Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 10, 2022 CASE NO(S).: OLT-22-001973 (Formerly) MM200032

PROCEEDING COMMENCED UNDER subsection 42(6) of the Ontario Heritage Act, R.S.O. 1990, c. O. 18, as amended

Appellant: Vagn Lauristen Subject: Appeal of the Decision of Council to issue a permit with terms and conditions to (alter/erect/demolish/remove) a building or structure Property Address/Description: 3 Victoria Lane Municipality: City of Markham OLT Case No.: OLT-22-001973 Legacy Case No.: MM200032 OLT Lead Case No.: OLT-22-001973 Legacy Case No.: MM200032 OLT Case Name: Lauristen v. Markham (City)

Heard: January 20, 2022 by video hearing

APPEARANCES:

Parties	Counsel*/Representative
Vagn Lauritsen (“Appellant”)	Christine Costa
City of Markham (“City”)	Francesco Santaguida*

DECISION DELIVERED BY M. RUSSO AND ORDER OF THE TRIBUNAL

INTRODUCTION

1In August of 2020, the Appellant erected a new 5-foot high black chain link fence along their property boundary at 3 Victoria Lane (the “subject property”). The subject property boarders open space and a municipal pedestrian pathway to the north and east, as well as open space and a rail line to the south.

2Adjacent to the subject property is 31 Victoria Avenue, a heritage designated home and property, and a northwest carve out of the subject property’s likely original lot fabric. This creates both a north-south boundary (rear of 31 Victoria Avenue property) and an east-west boundary (northern flank of subject property and southern flank of 31 Victoria Avenue) with the subject property.

3Figure 1 below highlights in red the installation of the black chain link fence between the subject property and the adjacent dwelling (31 Victoria Avenue), as well as the portion of fencing to the north of the subject property abutting the pedestrian pathway.

Figure 1

4Both the subject property and 31 Victoria Avenue (adjacent property) are located in the Unionville Heritage Conservation District (“District”), designated under Part V of the Ontario Heritage Act (the “Act”). Therefore, alterations to the exterior of the properties, including the installation of fences, are subject to review and approval by the Municipality to ensure that the proposed work complies with the City's By-laws and heritage policies.

5The City’s Fence By-law (No. 277-97, as amended) states that “any division fence constructed or repaired within an area designated as a heritage conservation district pursuant to part V of the Ontario Heritage Act is subject to all requirements for obtaining a permit pursuant to such legislation” (Section 13.1).

6The Appellant’s submissions to the Tribunal were that they were unaware of the Heritage Permit application requirement when the fence was erected. After being informed of the requirement, the Appellant indicated they immediately applied to the City on August 18, 2020 for permissions subsequent.

HERITAGE COMMITTEE AND PERMIT APPLICATION PROCESS

7On September 9, 2020, Heritage Markham Committee (the “Heritage Committee”) met to hear and review applications by both the subject property and 31 Victoria Avenue.

8The Appellant had applied for permissions to their as built erected chain link fence and 31 Victoria Avenue was applying for permissions to install a rear yard white picket fence (the shared boundary with the subject property, refer to visual at paragraph 3).

9Heritage Committee recommended as follows:

1. That the Heritage Permit application seeking permission to install a new wooden picket fence along the mutual property line of 31 Victoria Avenue and 3 Victoria Lane be approved from a heritage perspective and subject to complying with the City’s Fence By-law; and,
2. That the Heritage Permit seeking approval for the chain link fence installed without approval be denied from a heritage perspective and that the existing chain link fence be removed.

10The Heritage Committee recommendation, specific to the subject property was brought forward to the November 9, 2020 City Development Services Committee Meeting. In response to Heritage Committee’s recommendation for denial, the Appellant elected to seek approval for the chain link fence from City Council.

11At the November 10, 2020 Council meeting, Council heard delegations both in support and against the subject property’s permit application. However, notably Council had before it, City staff and Heritage Planner Report (the “Heritage Report”) dated November 9, 2020.

12The Heritage Report was authored by City Heritage Planner Regan Hutcheson and stated:

Staff always prefer the use of wooden fences in all of our heritage conservation districts as it is a natural material and generally complementary to the district character. However, upon review of all the information related to this specific situation, the use of chain link fencing is considered acceptable for the following reasons:

i. Chain link is not identified as the preferred type of rear yard fencing in this area, but it is not prohibited and is permitted in other heritage conservation districts in the City. It has also been installed along parts of the railway Right Of Way in the District for public safety;

ii. Dark colour chain link fencing often visually disappears especially if vegetation in planted adjacent to it.

iii. The use of chain link fencing appears visually less intrusive adjacent to the vegetation found along the City’s pedestrian pathway than would a solid wood board fence. Chain link will allow existing vegetation to grow through the openings.

iv. The chain link fencing cannot be seen from Victoria Lane or Victoria Avenue.

v. Although a chain link fence may not be the type of fence the owner of the historic house at 31 Victoria Avenue prefers, this fence is not negatively impacting any heritage attributes and the owner can apply for other types of fencing to be installed along the mutual property boundary.

13Council approved the Heritage Permit application (HE 20 125034) in support of a chain link fence at 3 Victoria Lane subject to the following conditions:

a. The submission of the Heritage Permit application fee for unauthorized work; b. The removal of the portion of chain link fence installed on 3 Victoria Lane adjacent to the eastern property boundary of 31 Victoria Avenue, acknowledging that an application for a heritage picket fence from the owner of 31 Victoria Ave has been approved.

14The Appellant appealed the decision of Council, and specifically condition (b) as provided above to the Tribunal, pursuant to s. 42(6) of the Act.

THE HEARING

15The Parties had provided several submissions to the Tribunal in advance and others at the hearing event. With no objections from counsel or the Appellant’s representative, the Tribunal marked the submissions as follows:

i. Document Book of the Appellant – Exhibit 1 ii. Document Book of the City – Exhibit 2 iii. Curriculum Vitae and Acknowledgement of Expert’s Duty Form for Marcus R. Letourneau – Exhibits 3A and 3B iv. Four Site Photographs – Exhibit 4 v. Unionville Heritage District Plan Extracts – Exhibits 5A-5B-5C-5D1-5D2

LAND-USE PLANNING WITNESS

16The City called Marcus Letourneau to provide viva voce testimony at this hearing. As marked, Exhibits 3A and 3B, Mr. Letourneau’s Curriculum Vitae (the “CV”) and Acknowledgement of Expert Duty form were provided for the Tribunal’s consideration.

17With no objection heard and upon review of Mr. Letourneau’s CV and Acknowledgement of Expert Duty form, the Tribunal duly affirmed and qualified the witness to provide opinion evidence on heritage matters, pertaining to land-use planning at these proceedings.

18The Appellant intended to call Regan Hutcheson (City staff and Heritage Planner) to provide viva voce testimony at this hearing. The Appellant had sought and acquired a summons by the Tribunal to have Mr. Hutcheson appear for these proceedings. However, the Appellant failed to serve the summons to the witness in the time frame and manner as required (directions were clearly noted with the summons approval provided by the Tribunal), thus, Mr. Hutcheson was not present.

19Although Mr. Hutcheson did not appear before the Tribunal, Exhibits 1 and 2 have reports and material authored by Mr. Hutcheson, thus part of the body of evidence the Tribunal will be considering on this matter. Both Parties acknowledged Mr. Hutcheson’s contributions and had no objections proceeding as such.

PARTICIPANTS

20The Tribunal received 14 Participant status requests in advance of the Hearing. The Parties had no objections to the Participant requests and having reviewed the requests, the Tribunal granted Participant status and accepted the statements as provided.

21The Participants’ concerns primarily focused on the beliefs that the chain link fence is out of character for the area, is not aesthetically pleasing and creates an undesired precedent for the heritage district. Other concerns were raised and considered by the Tribunal, but the majority of the concerns were identified above.

CORE ISSUE

22Although the Tribunal had before it, various arguments from the Parties and was provided numerous Participant statements to consider, the Tribunal identified a core issue to these proceedings. Distilled to its core, the Tribunal was required to adjudicate if the imposition of condition (b) by City Council to the Appellant, the removal of a portion of the chain link fence, was an appropriate and justified condition of approval?

APPELLANT’S POSITION

23The Appellant as indicated had intended to call Mr. Hutcheson to provide viva voce testimony at these proceedings. With his testimony not being heard, the Appellant relied and turned the Tribunal to the Heritage Report authored by Mr. Hutcheson, dated November 9, 2020.

24The Appellant’s submission to the Tribunal was that the recommendation of Mr. Hutcheson to Council (outlined in Paragraph 12 of this Decision) was to approve the fence as erected, and staff then proceeded to give options for Council to consider. However, the Appellant highlighted, only one condition of approval was provided by City staff and that was the Heritage Permit processing fee be included and paid.

25The Appellant confirmed for the Tribunal that the fee has been submitted to the City and paid in full.

26The Appellant also submitted that Mr. Hutcheson, as already indicated, provided Heritage staff’s perspective to Council that the fence as erected is considered acceptable. Staff provided Council options for consideration which included, choosing to approve the fence in its entirety with no alteration or the possible alternative offered by staff was removing aspects of the fence most visible from the public realm, being that on the northern aspect of the subject property, adjacent to the public pathway.

27In speaking to the paragraph above, the Appellant submitted that Mr. Hutcheson specified in his report, and provided the option to Council to give consideration to the portion of fence along the pedestrian pathway, the portion of fencing along the mutual property boundaries of the subject property shared with 31 Victoria Avenue, was not mentioned by staff. Further, the Appellant submitted Mr. Hutcheson’s reasons outlined on why the chain link fence is acceptable as erected, and highlighted that the fence did not negatively impact the Heritage attributes of the area and more importantly, those of 31 Victoria Avenue from City staff’s perspective.

28The Appellant justified their erection of the fence in-situ, primarily as being security and trespassing concerns with their property being very accessible from the adjacent pedestrian pathway. They further highlighted for the Tribunal that the fence was erected entirely on their property by approximately two-and-a-half inches and entirely paid for by the Appellant.

29In closing, the Appellant brought the Tribunal again to Mr. Hutcheson’s Heritage Report that clearly highlighted that the District Plan is silent on rear yard chain link fences and speaks on the front yard situation, which is not the case here. The City’s newer Conservation District Plans, the Thornhill Heritage Conservation District Plan (2007) and Buttonville Heritage Conservation District Plan (2011) provide some direction on backyard fencing and indicate that wooden fences are preferred. However, “if a chain link fence is used, it should be black or dark green in colour”. The Appellant submitted to the Tribunal that the Heritage Report clearly indicates that there is no prohibition of chain link fences in this District and no reasonable or appropriate rationale to removing the segment of fence subject to this appeal, when both City staff and policy do not support its removal.

CITY’S POSITION

30Counsel for the City called Mr. Letourneau to provide evidence for these matters. Mr. Letourneau advised the Tribunal he was contacted by the City in late December 2021 and formally retained by the City in mid-January 2022. He conducted a site visit to the area and inspection of the subject property and adjacent lands on January 18, 2022.

31It was Mr. Letourneau’s opinion that the City imposed condition on the subject property was appropriate and serves to better maintain the heritage character of the area.

32Mr. Letourneau brought the Tribunal to s. 42(1) of the Act that reads:

No owner of property situated in a heritage conservation district that has been designated by a municipality under this Part shall do any of the following, unless the owner obtains a permit from the municipality to do so:

1. Alter, or permit the alteration of, any part of the property, other than the interior of any structure or building on the property.
2. Erect, demolish or remove any building or structure on the property or permit the erection, demolition or removal of such a building or structure.

33Mr. Letourneau then brought the Tribunal to s. 42(4) of the Act that reads:

Within 90 days after the notice of receipt is served on the applicant under subsection (3) or within such longer period as is agreed upon by the applicant and the council, the council may give the applicant,

(a) the permit applied for; (b) notice that the council is refusing the application for the permit; or (c) the permit applied for, with terms and conditions attached.

With emphasis given to subsection (c) above, terms and conditions by Mr. Letourneau.

34Mr. Letourneau then brought the Tribunal to Exhibit 5C, District Plan Extracts and specifically s. 8.2 that similar to the Act highlights that “once a heritage conservation designation comes into force, no person, including the municipality can erect, demolish, remove or alter any external portion of any building or structure without a permit issued by the Council of the municipality”.

35Mr. Letourneau opined that direction is given in Exhibit 5A, District overview and s. 3.2.2, that “encourages the introduction of, as well as conservation of, historic landscape treatments in both the public and private realm”. More specifically he opined relevant to these matters, this policy encourages the preservation of historic fences and introduction of new fences that respect historic patterns while meeting contemporary needs.

36Mr. Letourneau did concur with the submission of the Appellant that there is no explicit prohibition on chain link fences in the District, however, in his opinion, one must look at the Act in its totality and policies of the District Plan in the same manner.

37Mr. Letourneau brought the Tribunal to District Plan, s. 9.7.3, which reads:

As a result of the historic lot plan of Unionville, it is often the case that rear yard fencing runs along the street and is visible. In these cases in particular, special attention should be paid to ensuring that the fencing treatment is compatible with the Heritage District context. The general rule that simplicity is preferred should apply with regard to rear yard fencing in the District.

Mr. Letourneau felt that the above is relevant to the matter at hand. He opined that Council when rending their decision, was taking this street view and public realm overlook into account appropriately from a Heritage planning perspective.

38Mr. Letourneau indicated that he had reviewed the Heritage Report and respectfully disagrees with some of the conclusions provided by Mr. Hutcheson.

39Three opinions offered by Mr. Letourneau to the Tribunal, that differed from the conclusions of Mr. Hutcheson were:

i. Although he concurs that the chain link fence is not visible from Victoria Lane, Mr. Letourneau opined that the fence is quite visible from Victoria Avenue, as well as from the pedestrian pathway to the north. ii. Vegetation planted adjacent to the chain link fence, offered as a mitigative strategy by Mr. Hutcheson may be beneficial in some instances, however, Mr. Letourneau opined that this strategy may be conversely detrimental at times, actually bringing attention to the fence and external boundary, rather than detracting from its presence. iii. Lastly, the fact that Metrolinx and the railway line in general may utilize black chain link fences at times, particularly at crossings, Mr. Letourneau opined, does not substantiate or support its use. The railway line has a different character than the residential heritage character prevalent in the District. It is not, in his opinion, an adequate comparison, with their uses and character differing substantially.

40In conclusion, Mr. Letourneau opined that Council appropriately chose to restrict the chain link fence erected and remove the portion of fencing affecting the historical nature of the home adjacent and the character of the area overall, with visibility from Victoria Avenue and the pedestrian pathway. In his opinion, Victoria Avenue is a gateway that marks the edge of the District, and thus should be governed accordingly. In his opinion, the Act and the policies of the District Plan, if considered in their totality, support the decision of Council, and for that reason, in his professional opinion, the removal of the portion of fence identified, should be upheld and the condition maintained.

DISPOSITION AND ANALYSIS

41The Tribunal in adjudicating on this matter has considered the viva voce evidence, the Participant statements provided and the totality of the evidence comprising this file before the Tribunal.

42The Participant statements provided, although numerous offered little by way of policy or evidence to substantiate their concerns. The matter of precedent is often cited as a concern in heritage and planning matters. However, the Tribunal readily dismisses this argument, as every appeal is adjudicated on the merits of the appeal and evidence provided. The remaining and prevailing concerns raised by the Participants were considered by the Tribunal, however, dealt with in the body of the evidence and more so with the testimony of the City’s witness, who brought forward some overlying concerns.

43When considering the matter and analyzing the evidence in its totality, the Tribunal was more so persuaded by that of the Appellant and the Heritage Report provided.

44Although Mr. Letourneau provided evidence that was well received and compelling, numerous variables led the Tribunal to support the arguments of the Appellant.

45One variable considered by the Tribunal was the relatively short retention of the witness for the City. Greater weight was thus given to the recommendations of staff that have dealt with this matter for considerably more time and are well versed in the policies affecting the subject property and District overall.

46The Tribunal also was not satisfied with the evidence of the City that focused on polices that read “encouraged” or “discouraged” and thus, did not sufficiently satisfy the Tribunal that the chain link fence should be removed. The evidence of Mr. Letourneau also relied on District Guidelines, which were considered and given weight, however, the Tribunal does not interpret or believe this supersedes policy or the absence of policy in the District plan, which is silent on backyard fencing.

47Counsel for the City appropriately highlighted for the Tribunal that the core issue for this matter is the appeal itself. One must question, is the condition imposed by Council, the removal of the identified portion of fence, justified and appropriate? The Tribunal finds it is not.

48The argument of public realm and overlook is dismissed by the Tribunal with the totality of the evidence. The Tribunal finds there exist mitigative strategies to deal with this matter. Further, the Tribunal does not find the rationale of obligating a portion of fence to be removed because of concerns of public view, but still allowing a greater portion along the northern boundary and along the pedestrian pathway, which arguably is just as visible, if not more so, to be inconsistent.

49The Tribunal finds the right of the property owner to erect a fence for safety and access concerns when in close proximity to pedestrian traffic and public access outweighs policy that provides no prohibition and is silent on the matter and at most, encourages or discourages specific fencing materials.

50Lastly, the Tribunal finds that the five bullets found in the Heritage Report and provided in this Decision in paragraph 12, support more so the appeal than the evidence provided by the City. The Heritage Report offered insight and locations where black chain link fence is currently used within the District. It further provided rationale why black chain link fence is acceptable from a heritage perspective, offered mitigative strategies to alter the appearance with vegetation surrounding and intertwining with the fence. The Tribunal found it most pertinent that the Heritage Report identified the option of erecting a wooden fence is available to the owner of 31 Victoria Avenue, if ultimately it is their preference to do so. All these bullets highlight for the Tribunal that mitigation, choice and options of screening from public view exist, and without prohibition or any policy satisfying the Tribunal that justifies the removal of the identified portion of chain link fence, the Tribunal is persuaded by the Appellant and orders that the fence shall remain.

ORDER

51THE TRIBUNAL ORDERS that the appeal is allowed and directs the City of Markham to issue a permit to erect the structure at 3 Victoria Lane with terms and conditions as follows:

1. The submission to the City of Markham of the $581.00 fee for the processing of a Heritage Permit for unauthorized work (if not having already been submitted).

“M. Russo”

M. russo 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.