Monday, 16 May 2011

Should stupid people be given a break?

A two-storey backyard addition built without permits has cost an elderly couple more than $200,000 in legal and other fees, their health and now possible eviction and demolition of the offending structure.

During a five-year fight with city hall, Shih Tseng, 74, has suffered a heart attack and a stroke. His wife, Yang Tseng, 68, who has osteoporosis and mobility problems, is under a doctor's care for severe mental stress.

The couple's contractor built the brick addition 45 centimetres deeper into the backyard than the former termite-infested, rotting wooden structure, which was built before new bylaws were enacted.

The Tsengs didn't obtain permits, and the city says the new structure makes the total allowable depth of the house almost twice as long as what is allowed under today's rules.

The family's anxiety is about to grow exponentially.

The city has applied for a court order to demolish — at the Tsengs' expense — the $80,000 addition on their semi-detached Victorian-style home on Brunswick Ave., just north of College St. near Kensington Market.

“We are living in fear,” Shih Tseng said of the endless fight to legalize and maintain the addition, which now includes a desperate last-minute appeal to the United Nations Human Rights Committee in Geneva to stop the demolition.

“We can't sleep, we can't eat,” said a tearful Shih Tseng. He and his wife live on the ground floor and rent two upstairs apartments to university students. “The stress is killing us,” Shih Tseng continued. “We feel terrorized.”

Inspectors have been to the house at least 26 times, he said. Two senior lawyers have “prosecuted them” in court for more than 16 months, leaving the family questioning the “excessive zeal” with which the city is pursuing this particular case.

According to their daughter, Pauline Tseng, the family has paid more than $200,000 in professional fees to local zoning lawyers, planners, architects, engineers and surveyors from September 2006 to March 2011 to try and save the 14- by 12-foot addition.

“We believe the city's endless litigation against us is unprecedented for the minor nature of the infraction involved,” said Pauline Tseng, a New York-based lawyer who holds a certificate in conflict resolution from Harvard University. “Defence counsel told us the severity of the offence (construction without a building permit) is like a parking ticket.”

The ordeal began in May 2006 when the couple's two other children, Peter and Vanessa, purchased the large red brick house as a retirement home for their parents. Since there were multiple offers the family submitted a “clean offer,” meaning it didn't have the contingency clause for a home inspection. The house was sold to them for $718,000.

The sellers did not disclose previous fire damage to the home. After the closing, a home inspector and an engineer recommended that the rotting two-storey structure at the rear, which was sinking and tearing away from the main house, be torn down and rebuilt on solid footings.

Pauline Tseng said she, her father, brother and sister were out of the country at the time. Their mother was in Toronto, but hardly equipped to oversee any building project, so they handed the keys to a contractor to make the repairs recommended by their architect. The contractor should have applied for a building permit on behalf of the owners of the property.

The family argues the addition is only 45 centimetres — a mere foot and a half — deeper than the footprint of the clapboard structure they tore down. And there are other houses on the street that go back farther on the lot than theirs.

The city says what the Tsengs constructed, without any building or electrical permits, “leaves little open space, blocks sunlight and views from adjacent properties.”

The Tsengs point to committee of adjustment documents that show houses nearby on Brunswick received minor variances — one for an addition and another for a staircase — that brought their overall depth to twice what is allowed under current bylaws. Both of those houses are deeper than the addition the Tseng family built.

The attached neighbour to the north of the couple has no objection, neither does the neighbour to the south, the owner of an 11-unit rooming house that received committee of adjustment approval in 1980 to pave over the backyard to allow for six-car parking.

Those arguments have had no effect on a group of 20 neighbours who signed a petition opposing the Tsengs.

“This extension is large and bulky ... and has the potential to limit the backyard enjoyment of existing neighbours and all future neighbours since it permanently changes the character of these backyards,” the petition reads. “The addition ... sets a dangerous precedent for backyard overdevelopment.”

The Tsengs countered with a petition with 39 names in support. But Ingrid McKhool, co-owner of a nearby home on Brunswick, said the Tsengs were not completely truthful when they canvassed neighbours.

“She (Pauline Tseng) misrepresented herself. She didn't disclose that the addition had already been built, that it was illegally constructed or that it was longer than the one that was previously there,” said McKhool, adding she was glad when the committee of adjustment ruled the variance was not minor, and not in keeping with the character of the area.

Councillor Adam Vaughan (Trinity-Spadina) also sided with the Harbord Village Residents Association's position that the addition must come down.

“There are consequences to building first and getting permits later,” said Vaughan. “This addition is too deep, too high, and too wide,” he said.

Vaughan compared the Tsengs' predicament to someone who decides to do their own income tax, takes shortcuts, is whacked by the auditor, then blames the taxman for his problems. He says he has a hard time believing that the Tsengs, with a lawyer in the family, didn't know a building permit is needed to construct an addition of that size.

The family appealed to the Ontario Municipal Board. Their hired planner was on vacation the day of the hearing, but the city's planner was there. In a scathing report, the board questioned whether the Tsengs are “intent on continuing a pattern of behaviours which results in a waste of time and resources of the board and the city.”

Pauline Tseng, acting for her parents, sought to appeal the OMB decision in Divisional Court, and then to the Ontario Court of Appeal. She lost both times while the city was awarded $17,500 in costs.

Meanwhile, Toronto began prosecuting the Tsengs under the Ontario Building Code Act for failure to comply with the order to obtain a building permit. After six court dates were adjourned (most requested by the city, the family claims), all charges were withdrawn.

“We thought it was over,” Pauline Tseng said. Days later, they received notice the city was going back to court seeking an order to evict the tenants and demolish the addition.

I feel sorry for the family but the problem facing them is this. If they are permitted to let their extension remain the way it is, then later, anyone else who illegally builds an extension on their property without first obtaining a building permit to do so will argue that their illicit extension should remain the way it is also.

It is really foolish for anyone to build anything on their property without first getting a building permit. Let me tell you of two other such incidents in which one family didn’t apply for a building permit and the other family did.

The first family built a rather large shed in their backyard. It was beautifully built but it was too high. If they hadn’t built it as high as they did, it couldn’t have been seen other than by the family on the opposite side of their backyard. They didn’t have a problem with the shed so they didn’t complain to the authorities. However someone did and the case ended up in court.

I was asked to represent the family and we had an offer from the bylaw officer that if they applied to the municipality for permission to let the shed stay as it was after paying $300 for the hearing and the municipality agreed, then it could remain. The family meanwhile had to post a sign on their property stating that if anyone didn’t want the shed to remain on the property, they were to attend the next hearing. No one objected and permission was given that the shed could remain where it was.

In the second case, the owner of the property didn’t like the way the driveway to his garage was on a slope that finally ended up in his garage which was under the main floor of his house. Such a slope would make it difficult to drive up it if it was covered with ice so I can appreciate where he was coming from.

He applied for a permit and it was granted. He filled in the space where the slope was and then built a $30,000 double garage on top of the filled-in spot. When a building inspector inspected the work that was completed, he noted that the garage was a foot closer to the public sidewalk than it should have been. Fortunately for the homeowner, that inspector was the one who had previously given his written OK to build the garage the way it was. When he realized what he had done, he said to the home owner. “You have the only garage in this community that is this close to a public sidewalk. The community he spoke of has around a million people living in it.

I was so please when I realized that because I later bought the property and believe me, in a country where the snow can be quite deep, it is nice to know that the driveway isn’t so long that the task of shoveling snow off of it isn’t too demanding.

Owing property is a big investment in people’s lives. It also means that property owners have to be especially vigilant in what they do with it.

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