September 1, 1998

To:Toronto Community Council

From:H.W.O. Doyle

Subject:Proposed Amendments to Chapter 331, Trees of the former City of Toronto Municipal Code

Purpose:

To respond to the request of the Toronto Community Council that the City Solicitor in consultation with appropriate staff report back to the Toronto Community Council on September 16, 1998 on proposed amendments to Chapter 331, Trees of the former City of Toronto Municipal Code, which would resolve joint ownership issues and issues respecting applications which straddle property lines and on the motion from Councillor Johnston that:

"In respect to trees that straddle property lines Council reinstate the former City of Toronto Municipal Code provisions that allowed the owner of either property to make an application to injure or destroy a tree that straddles a property line and allowed the owner of an abutting property to make an application to injure or destroy a tree on an adjacent property in respect to a development that would affect the roots or branches of such a tree."

Funding Sources, Financial Implications and Impact Statement:

N/A

Recommendations:

It is recommended that:

(1)Council amend By-law No. 1997-0418 by deleting section 331-13A(6) of Municipal Code Chapter 331 thereby reinstating the former Municipal Code provision which would permit the owner of either property where the base of a tree straddles the property line or where a property is physically impacted by the roots or crown of a tree on adjacent property to make an application to injure or destroy such tree; and

(2)the City Solicitor be authorized to introduce a by-law in substantially the same form as the by-law attached to this report.

Council Reference/Background/History:

At its meeting of June 25, 1998 Toronto Community Council had before it a communication respecting 204-212 Eglinton Avenue East and the resolution of a dispute surrounding the protection of a 33cm diameter elm tree located on abutting property at 220 Eglinton Avenue East.

Toronto Community Council requested that the City Solicitor report directly to City Council on July 8, 1998 on options available to Council to grant an exemption to by-law No. 1997-0418 and to report back to Toronto Community council on September 16, 1998 on proposed amendments to Chapter 331, Trees of the former City of Toronto Municipal Code which would resolve joint ownership issues and issues respecting applications which straddle property lines.

At its meeting of July 31, 1998 City Council adopted by-law No. 610-1998 which provides an exemption from the requirement that applicants obtain the consent of the adjacent property owner in circumstances where the base of a tree straddles the property line or where a property is physically impacted by the roots or crown of a tree on adjacent property, however, this exemption is only applicable in circumstances where a development application was approved prior to the adoption of by-law No. 1997-0418 on August 21, 1997.

Comments and/or Discussion and/or Justification:

Prior to the passage of By-law No. 1997-0418 on August 21, 1997, the owner of either property where the base of a tree straddled the property line or where a property was physically impacted by the roots or crown of a tree on adjacent property could make an application to injure or destroy such a tree. By-law No. 1997-0418 removed the right of an owner in such circumstances to make an application without first obtaining the consent of the adjacent property owner.

Prior to the passage of By-law 1997-0418 the City Solicitor reported on amendments to Municipal Code Chapter 331, Trees, that would require joint ownership issues to be resolved prior to an application being accepted and advised that the Municipal Code provision in place at the time which allowed for either property owner to make an application to injure or destroy a tree where the tree straddled the property line had been adopted by City Council in November 1995 in order to permit applications to be processed in such situations thereby allowing the development review process to proceed. Prior to this 1995 amendment, several situations had arisen in which neighbours had used the trees by-law to effectively sterilize abutting properties from development because of the need to obtain a neighbouring property owner's consent. The 1995 amendment allowed the owner of an intended development site to submit the necessary application and required that notice be given to the abutting property owner so that any objections could be made. No consent was required. The owners of both properties affected by the trees at issue were advised that the City was dealing with the issue under the trees by-law but was not providing authority for the owner of a development site to enter onto or otherwise destroy his or her neighbour's property.

Amending the by-law to allow either owner to make an application will permit applications to be considered on their merits and result in the tree by-law causing the least possible delay to development applications. Requiring joint ownership issues to be resolved prior to an application for the injury/destruction of trees on private property removes the ability of an owner of a development site to move an application forward until the consent of the abutting property owner has been obtained and can result in substantial delays in the processing of development applications, thereby allowing an objecting property owner to effectively sterilize an abutting property from development.

Given the added benefit that having applications move forward forces property owners to consider each other's position and attempt to resolve the issues respecting such trees in a timely way, while still giving Council the opportunity to consider each case on its merits, it is appropriate for Council to consider amending the by-law to remove the consent requirement.

Conclusions:

If Council wishes to reinstate the former City of Toronto Municipal Code provisions, in place prior to the adoption of by-law 1997-0418 which permitted the owner of either property to make an application to injure or destroy a tree that straddles a property line or where the roots or branches of a tree will be injured or destroyed as a result of development on an adjacent property the appropriate course of action would be to amend by-law 1997-0418 by deleting Municipal Code S. 331-13A(6).

Contact Name:

Jasmine Stein

(tel. 392-7226)

H.W.O. Doyle

City Solicitor

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Authority: Toronto Community Council Report No.

Adopted by City Council on

Intended for first presentation to Council:

Adopted by Council:

CITY OF TORONTO

DRAFT BY-LAW No.

To amend the former City of Toronto Municipal Code Chapter 331, Trees, Article III

respecting trees that straddle property lines.

The Council of the City of Toronto HEREBY ENACTS as follows:

1.Municipal Code Chapter 331, Trees, Article III of the former City of Toronto is amended by:

A.Deleting Subsection 331-13A(6)

ENACTED AND PASSED THIS Day of , A.D. 1998.

______________________________________________________

MayorCity Clerk