OMB rules to preserve contractor’s treehouse

Toronto contractor John Alpeza and his family have prevailed at a hearing of the Ontario Municipal Board (OMB) which ruled that a backyard treehouse won’t be demolished — provided some alterations are made.

The treehouse, which resembles a boat, ran afoul of city zoning bylaws last year as Alpeza, owner of Alpeza General Contracting, Inc., attempted to negotiate with the city planning division, his neighbours, the Swansea Area Ratepayers’ Association and Coun. Sarah Doucette of Ward 13, Parkdale-High Park.

However, the treehouse was considered an accessory structure under By-law 438-86, which covers buildings typically constructed on the ground. At a committee of adjustment hearing held last June, the Alpezas were told to lower the structure almost to ground level or remove it. Alpeza chose instead to take the matter to the OMB, a process he knew would cost him a lot of money.

"It’s a difficult decision to make, especially when the odds were not that encouraging," he says. "Michael Foderick, a lawyer at McCarthy Tetrault, agreed to assist us pro bono but we had to engage the services of a planner as an expert witness. He produced a study of the treehouse that looked more like a small book and we had to create a three-dimensional digital model that showed the hearing what sort of shadows the treehouse would cast over several hours at three different times in the year."

The two-day OMB hearing commenced Jan. 3, along with an assembly of lawyers and expert witnesses representing the city, Alpeza’s neighbour and the Swansea Area Ratepayers’ Association.

"It was kind of intimidating walking into the room and seeing nine people who looked like they were ready for battle," he says. "However, the judge first gave us time to reach a settlement among ourselves."

The agreement hammered out among the stakeholders requires Alpeza to:

• lower the total height of the structure to 4.5 metres, down 0.65 metres;

• increase the setback from the west property line to 0.65 metres, an increase of 0.40 metres from its current location;

• install a new fence along the west property line;

• submit final plans that show the changes to the city; and

• complete the changes no later than May 31, 2017.

"But reaching our compromise didn’t mean that the OMB would accept it," says Alpeza. "We still had to present our case."

In its verbal ruling on Jan. 4, the OMB upheld the agreement.

"Reducing the height and increasing the setback of the structure mitigates the city’s concerns with the adverse impacts resulting from the as-built structure, including privacy and overlook on adjacent properties and the visual impact of the structure from the rear yards of neighbouring houses," says City of Toronto media spokesperson Wynna Brown. "The parties are finalizing the wording of the agreed upon conditions for submission to the OMB."

However, she notes that the OMB ruling stands on the merits of one case only. It won’t set a precedent with the city.

Alpeza says that the OMB application cost him about $15,000. He ballparks the cost of adjusting the height and location of the treehouse — possibly by crane — at another $10,000.

"I tried so many times to make a deal before things had gotten this far," says Alpeza. "I would have gladly accepted the compromise on the treehouse that was decided at OMB. The system seems designed to encourage conflict instead of resolution. But I’m still a happy guy because I got to keep the treehouse."