"Black Barn" Silver Maple Tree at 95 James Street
This post is to clarify the facts surrounding the "Black Barn" silver maple tree at 95 James St.
I share in the upset over this magnificent tree, and the City and I have spent considerable time and effort on this matter, so I have prepared a short Q&A:
Why is this tree at risk of being cut down? Answer: Back in September 2019, the owner of the property applied to Committee of Adjustment (COA) to tear down the current house and build a new one. I wrote a letter to the COA asking for a deferral to give the owner an opportunity to revise their plans in a way that would preserve the tree. The COA approved the owner's application, so I directed for the City Solicitor to appeal the ruling at the Toronto Local Appeal Body (TLAB) to oppose this development on the basis of impact to the tree.
Can City Council save the tree? Answer: No. There is no City Council vote on this matter. The legal hearing at TLAB concluded on April 16, 2021 and now it is up to the Chair of the TLAB to make the final decision on the application. Over the past few months, I have been in constant contact with City Legal staff to ensure that every possible avenue has been explored to save this tree. I have pressed City Heritage Staff for a review of the tree, and they have stated that there is no historical evidence showing that a heritage designation is warranted. The bottom line is that despite our efforts to find a way to preserve this tree, there is no reasonable avenue for the City to save this tree.
Has the City made a "deal" or "settlement" with the builder? Answer: No. Urban Forestry policy is to not object to the removal of trees within a property owners "as-of-right" building envelope. The tree sits on an area of the property that would not require any bylaw variances for the property owner to build on. In this case, a fee is charged for the replacement of the tree. The City ultimately took no position on the file because they had no legal case to call.
Why is Urban Forestry not objecting to the removal of the tree?
Answer: Urban Forestry does not object to the removal of trees when they are within a property owner's "as-of-right" building envelope - the Silver Maple at 95 James is in the property owner's backyard, and within their "as-of-right" space. What this means is that there is that the tree is located in an area where the property owner would not need any additional permissions to build within that space. Even though Urban Forestry works to protect trees, they cannot require a property owner to build less than they are legally allowed under existing local zoning laws.
What is a Heritage Tree?
Answer: Heritage Tree is often mistaken for a tree that is designated under the Ontario Heritage Act. According to Forests Ontario, (a not-for-profit organization), a "heritage tree" is a noble specimen because of its size, form, shape, beauty, age, colour, variety, genetic constitution, or other distinctive features. The nomination for a tree to be designated as a "heritage tree" by Forests Ontario requires the consent of the property owner. More information here.
How can a tree be designated under the Ontario Heritage Act?
Answer: It is properties that are designated under the OHA, not trees. Trees would be noted as attributes within the designation of the property, but are not the reason that a property would be designated as heritage. In order to designate a property under S.29 of the Ontario Heritage Act Heritage Planning Staff need evidence that demonstrates and explains the cultural heritage value of that property. It is real property that is designated and the designation by-law will then list the heritage attributes that are included on the property in question.
I asked Heritage staff to review the property for heritage value, but they found no evidence relating to the cultural heritage value of the property at 95 James Street, and have advised that their research processes, which includes a review of the building and tax records, they are unlikely to produce information that relates to the tree.
Designation under the Ontario Heritage Act is not a good tool for conserving a tree that is a noble specimen as the legislation was largely framed with buildings or structures in mind. This is because:
• As explained above, Heritage staff would need evidence that demonstrates that this property is a significant heritage resource and that evidence would need to explain the cultural heritage value of the tree. We have neither of these relating to the tree at 95 James Street; and
• Demolition control is the primary tool that is used to conserve significant heritage resources and, as a demolition permit is not required to remove a tree, this tool would not be available to conserve the tree. As such it is likely to be difficult to conserve a tree on private property by using the provisions of the Ontario Heritage Act.
Here is a presentation (publicly available) by the Parks and Environment Committee that provides more information on this matter. This presentation should be reviewed with the Report presented to City Council (Item # PE25.1).
Can Forests Ontario designate the tree heritage?
Answer: Mr. Rob Keen, CEO of Forests Ontario, has confirmed:
1. Any application for a tree to receive recognition under Forests Ontario’s Heritage Tree program must receive the consent of the registered property owner; and
2. Forests Ontario has not made a special exception or approved the nomination of the Silver Maple as a heritage tree.
Where can I learn more about this case? Answer: The documents are public and may be reviewed on the city website
It is my sincere hope that the social media attention that this tree has received will serve as a plea to the developer to make changes that would incorporate the tree into the design.