An Equitable SolutionAn Equitable Solution

Discussion PaperDiscussion Paper

Oct.20/06Oct.20/06

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An Equitable SolutionAn Equitable Solution

Discussion PaperDiscussion Paper

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Index

An Equitable Solution

3. Index

4. Introduction

5. The Vision

6. Rationalizing the Signatures

7. How It Works

8. Flexible Clearings

9. The Instruments

10. The Indicative Layout

11. The Lease is the ‘Family Compound’ or ‘Charter’

12. Restrictions by Covenant

13. Management Committee

14. Severances

15. North Block Sites

16. Mid Block Sites

17. Making the Case for a Zoning Amendment

18. Considerations

19. The Process Step-by-Step

20. Appendix

Revisions:Oct.14/06Oct.18/06Oct.20/06

Individual pages are available online at: http://ARRIS.CA/LAKE, along with a downloadable copy in PowerPoint and a condensed version in PDF format.

T.Mills

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Background…

The inspiration for this proposal comes from the land settlement strategy for Kakadu, North Australia.

In the 1980’s the ownership of the land was conveyed to the Aborigines - subject to a 100-year lease managed by a committee made up of Aboriginal and non-Aboriginal members.

This authority’s job is to manage the evolution of the land through 100-years of transition - setting the stage for future generations.

Thirty years into this transitional period, it’s clearly demonstrating beneficial results.

IntroductionI hope everyone can take a moment to reads this with an open and positive mind, and take a day or two to consider it, not only from their own perspective – but also from everyone else’s vantage point.

Throughout the preparation of this proposal I have applied the test of reciprocity - wherein by providing consideration for one family member, can it be similarly applied to the benefit of each of the other family members? The obvious example is the test of whether in granting a severance for one person, does it curb or extinguish the rights of anyone else to acquire the same benefit? Needless to say, the example given illustrates a fundamental stumbling block, that has to be overcome in the development an equitable family strategy.

Mary Swimming at Jim Jim FallsKakadu, North Australia

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Current Dilemma

Desired Outcome

The Vision

Key Elements

the property has special significance for the family

it should remain a family owned ‘compound’

providing equal considerations for all family members

preserving the natural character of the lake and land

all family members are entitled to enjoy the property in its entirety

there are significant benefits in separating the ownership

The family met in Aug/06 to discuss the future of the family compound and to prepare a joint Vision Statement. Although still in the works - its character and key elements are immerging…

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All Pens

At present, all ten family members’ signatures are required to change the property ownership.

A Reducing Number of Pens

The number of signatories on the common title reduces as each receives a severed parcel

Majority of Pens

Major decisions of the Management Committee e.g. amendment of Instruments

A Few Pens

Minor decisions of the Management Committee e.g. maintenance budget

Single Pen

Each property owners needs only their own signature for permits, mortgaging etc.

Rationalizing the SignaturesThe rallying of the ‘ten pen’ needs to be addressed. Acquiring all ten signatures is extremely difficult, and to repeat the process over and over is onerous. Listed bellow are ways to reduce the number of signatures over time.

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How It Works

From an Individual Property Owner’s Perspective

In being granted severance of his/her portion of the family property the recipient will provide their quit claim to remaining common property. The severed property remains subject to the Lease and the Covenant. A 1.5-acre Clearing is exempt from the Lease, where the house is situated.

The Family’s Perspective

Family members have full use of the green area under the terms of the Lease provisions.

Outsider’s Perspective

An outsider buys the property. The Lease and Covenant stay intact. The owner does not get the benefit of the Lease. The 1.5-acre Clearing is unencumbered property – equivalent at minimum to owning a 1.5-acre lot. The new owner has use of the lake subject to the Covenant.

In this instance the encumbering road access across Derek’s property can be stopped, and a new driveway provided out to Connemara Rd as provided on the Indicative Layout. The new link to the Glenfield Rd is built and the new owner shares road costs.

Using Greg’s property as an example…

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Flexible ClearingsDisplayed below are various schematic layouts. The left frame displays Greg’s red lots and an expanded scheme in grey. The right frame is the Indicative Layout from this discussion paper. Clearings have been arbitrarily posted on each lot, and are actually determined by each owner prior to building. The left and right frames are overlaid in the middle for reference.

Greg’s Clearing is the size of his red lot. Derek may wish to build a guesthouse for the kids’ families up the hill. Dave will appreciate the extra flexibility locating his house. Bev may want to consider options now that there’s no road encroaching. Bonny and Kevin can be creative with the narrow lake frontage. Mary & Paul may want to have a stable - or share a stable. Brian’s house will probably end up being located back from the lake on level ground due to the environmental planner’s report at the time. Who knows until it’s time to build.

AND the best part?… everyone gets to decide on their own, in their own time, where they want their 1.5-acre Clearing to be on their 14-acre property - right up until they’re ready to start building.

Earlier Layouts Overlaid Layout with Clearings

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The Instruments

Indicative Layout

The Indicative Layout enables the family to establish division lines, define the road arrangement, and areas to be restricted.

Lease

The Lease is solely for the benefit of family members. It presides over top of all property and survives the sale of any land.

Covenant

The Covenant runs with the land and defines restrictions on the Lake, Foreshore, Side Yards, and Clearings.

Severance

Severance applications conforming to the ratified Indicative Layout will be executed as-of-right without any reservation by the other signatories.

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The Indicative Layout

An additional access to Glenfield Rd is proposed in order to reduce road-loading to a maximum of 5-lots per access route, and to assist in making the case for the zoning amendment.

This new access may be required by the Municipality, and otherwise postponed until a property in the North Block is sold to an outside. If, as and when the new access is completed - Paul and/or Mary may request a downscaling of the road traffic across their sites.

An outside owner will share in road costs, and be limited to the most direct access to their lot.

The Indicative Layout enables the family to establish division lines, define the road arrangement, and areas to be subject to restrictions by Covenant including the Lake, Foreshore, Side Yards and Clearings.

Connemara Road

Road arrangements are to be set out in the Indicative Layout.

The current road encroaches on LeClaire’s property and restricts Bev & Dave’s sites. It is proposed to downscale this section to non-vehicular use, meanwhile upgrading the western route around the lake to provide all-season access to the North Block.

Sketch of an Indicative Layout

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The Lease is the ‘Family Compound’ or ‘Charter’

The Lease covers all the property - with the exception of 1.5-acre Clearings, which will be released when a family commences building their house.

The shape & location of each Clearing is to be determined by the owner and a formal release provided by the Management Committee.

Severances without houses will remain blanketed 100% by the Lease - until construction of a family house commences.

The Lease provides family members exclusive use of all lands ‘from the sky above to the bowels of the earth below’ with the exception of Clearings.

Family facilities may be built on the Lease, in a similar manner to the current baseball diamond, trap shooting, and platform tennis court.

A property sold to an outsider will remain subject to the Lease. The new owner will not share in the Lease.

Where a family property owner is not in good standing with the Instruments, his/her Lease benefits may be temporarily set aside by decision of the Management Committee until the breach is remedied.

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The Lease is solely for the benefit of family members. It presides over top of all properties and survives the sale of any land.

Green = Lease, White = Clearings

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The Lake

Restrictions pertaining to: rafts, allowable uses and practices, fish stocking, power boats restrictions, no chemicals…

Foreshore

…to a distance 100’ back from the lake there are restrictions pertaining to: the maintenance of the natural character of the lakeshore, landscaping considerations, building setbacks, docks, walking trail fully around the lake in favour of the Lease.

Side Yards

…to a distance 50’ back from the property lines there are restrictions pertaining to: maintenance of natural privacy screening to adjacent properties, no fences within the setback area, provision of walking path along Side Yards in favour of the Lease.

Clearings

Restrictions pertaining to: renting out, building heights, setbacks, garages, accessory structures, driveways, parking…

Restrictions by Covenant The Covenant runs with the land and defines restrictions on the Lake, Foreshore, Side Yards, and Clearings.

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The South BlockThe South Block is to separated from the North and Mid Block land by the Glenfield Rd. It is not part of severance arrangements and all family members remain on title.

The South Block is not being considered for building sites.

It is administered by the Management Committee, which is empowered to make decisions upon its disposition including by sale.

In the event of a sale the proceeds will be evenly disbursed amongst its ownership.

Management Committee

The Management Committee is to oversee development of the Instruments, the application for the zoning amendment, on-going administration of the Instruments - and day-to-day operational affairs (e.g. the road).

Major decisions of the Management Committee are to be ratified by a majority vote 70% of the family members, including all house owners and 50% of non-built family members.

Where specified, matters like reimbursement for road maintenance may be executed by 2 executive signatures.

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Severances

The Purpose of Severances

to reduce on-going situations requiring multiple signatories to comply with the zoning by-law’s requirement of ‘One-House, One-Lot’. to facilitate conveyance to heirs, mortgaging and insuring to relieve the next generation of ownership complications

The South Block will remain in common ownership separated from the land north of the Glenfield Rd.

In consideration of a severed share, the recipient will be removed from the title of the remainder.

Sales to Outsiders

Sales to outsiders during the lifespan of the nine siblings are limited to situations of duress. Siblings names were put on title, as a gift without cost by their parents, in order that they might share in this

family compound/retreat. Sales to outsider are viewed as means to recoup funds invested, and not for capture financial profit from the

gift. Encumbering Instruments may diminish value on individual lots – however, it should be kept in mind that the

family compound is diminished in value by sales to outsiders.

The lawyer recommended that the future of the family compound be resolved during Mary Claire’s lifetime by means of severance into individual ownerships, and an overarching agreement, regarding common interests, drawn up and executed by all owners.

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North Block SitesThe Woodhouse is a unique property housing family memories, and is not to be sold to an outsider.

It is understood that the Woodhouse will be conveyed over to Derek and Paul in the future.

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Mid Block SitesDue to lake frontage constraint the mutual boundary between Bonny and Kevin’s sites is to be considered flexible in the Indicative Layout - Bonny and Kevin may adjust this line to suit themselves.

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Making the Case for a Zoning Amendment

Current Dilemma Desired Outcome

Planning Arguments

the family compound is a unique circumstance the current zoning creates inequity and hardship the proposed plan is a good plan - of higher standard the family has exercised good planning prior to the by-law the family wishes to be in compliance with planning the proposed plan is ecologically responsible the plan ensures long-term sustainability the plan complies otherwise with the Official Plan the plan resolves the LeClaire encroachment lots are of substantial size, approximately 14-acres

The family requests relief from the restrictions of the zoning by-law to ensure that all the ten family members may be able - over time - to each build their own house. An exemption is required either from the stipulation of ‘One-House, One-Lot’ or from the limitation to 5-severances.

The Three Primary Blocks

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Management Considerations

day to day operations Covenant Lease administration

Individual’s Considerations

Mary Claire Bev Dave Mary Bonny

Considerations

Family Considerations

continuation of the family compound equity for all family members reciprocity of interests embedding of commonly held values sustainable long term solution protection against lot proliferation regulation of sales to outsiders

Municipal Considerations

does the application represent good planning does it resolve the LeClaire encroachment does it comply with long term planning for the area

This strategy has been prepared with regard to the following considerations.

Greg Brian Derek Kevin Paul

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1. Finalization of the Vision Statement

2. Agreement in Principle to a Draft Solution

3. Establish a Management Committee

It’s first task is to prepare -

Indicative Layout

Terms of the Lease

Covenant Restrictions

4. Make the Case for Zoning Amendment

5. Register the Covenant & Lease on Title

and when this is completed -

6. Register Severances on Title as Required

7. On-Going Management

All elements may be worked up concurrently - but must be executed in the following sequence.

The Process Step-by-Step

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Appendix

Cover Letter

In the interest of moving the family property issue along to an equitable solution I’m circulating this email, complete with link to the Discussion Paper posted online at Derek’s request. It is presented for discussion purposes in order that family members may focus their vision towards the future of the property. It has not been configured into a motion or motions.

(On a lighter note the Discussion Paper includes a becoming picture of Mary swimming at Jim Jim Falls in Kakadu, Australia.)

Please Read With an Open Mind

I hope that every one will read through this email with an open mind and a positive attitude, along with the Discussion Paper I’ve posted on line. Then give it a day or two to settle in. I would then like people to ask themselves if this approach would satisfy their fundamental interest in the property, and also consider it from the perspective of other family members. It is my opinion that within this framework is an equitable, workable solution.

The Fundamental Question

The basis question is: Does it work for you? And if not then please address respectfully the parts you can and can’t, and identify those areas in between that you think require revision.

Inspiration

A few weeks ago Mary and I travelled to Kakadu way up in northern Australia, where we found out an interesting device used to resolve the land claim dispute. The lands were conveyed subject to a long-term lease, which provided the means to manage the transition of ownership and its related developments. Not only did it work for Kakadu, but, I began to see its relevance to family’s property issue. It was on this basis that I set about drafting the following Discussion Paper.

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Qualification

I think I need to qualify myself. My work with Chizen & Mills over a twenty year period involved the purchase and sale of over 200-properties in addition to work undertaken for other property owners. These projects involved seeking municipal compliances, acquiring variances to municipal zoning by-laws and severances, and making representations before Committees, Councils. I’ve held both Participant and Party status in matters before the Ontario Municipal Board. During this same period, I chaired for many years Councils and Committees of the Home Builders’ Association, at both Canada-wide and Toronto levels. Chairing these meetings involved some thirty members and participants in quarterly and monthly meetings. In more recent years I became a registered professional planner in Ontario. My work in Canada, and now Australia, has involved developing urban design strategies in multi-stakeholder environments. My municipal planning work has included the development of the strategy leading to a major overhaul of Toronto’s residential by-laws in the 1980’s, and in 2003 at the behest of the Mayor of Toronto I successfully negotiated 47 fundamental amendments to Toronto’s new Official Plan affecting residential development controls. In the same period, I prepared a Discussion Paper, which was ratified by fourteen ratepayer groups. This became the lead document in subsequent multi- stakeholder discussions that resulted in the

successful conclusion of a forty- year development debacle in the Toronto core area. In the first half of 2006 I was responsible for preparing the Development Code for new communities at the periphery of Sydney, targeted to house ½ million people over the next thirty years. Based on the abovementioned, I believe I have status to be heard with some weight on the subject of the family’s property issue.

Our Intentions

I appreciate that I have an interest in the property, and might be questioned as to my independence of view in this matter. I would like to assure you that it is Mary’s and my intention that our children inherit our share and have the enjoyment of the family compound without complication - AND - that we look forward to all family members building at the lake, and wish to assist them in their endeavours to do so. In so mentioning, we see this as an equal and un- extinguishable right for all family members, and as such cannot support one family member in any manner that diminishes another family member’s entitlement to the same benefit. We are much encouraged with the broad-based appreciation expressed by family members in the visioning exercise about the family property, and we look forward to everyone maintaining the property in the spirit that it was gifted. At the same time we appreciate that the structure of the property needs to be reconfigured to satisfy contemporary circumstances.

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The Crux of the Matter

As we are all aware, municipality’s current regulations limit building permits for new houses to one per lot, with a limit of five severances. In that there are ten names on title, four of whom have built already, it is readily apparent that the regulations, which are general provisions throughout the municipality, impose a hardship in our particular instance.

At the outset of this exercise the lawyer advised that the property should be broken up into individual ownerships bound together by an agreement, and this was best done now before Mary Claire joins Dave, otherwise the exercise would become more difficult.

On this basis I would like to project the visioning exercise forward, to provide a perspective to the endeavour ahead.

Firstly: Individual Ownership

If at present, we all were to have the right to acquire a severance and hence to build, then the dynamics of our current property discussions would be greatly relieved. We need to formally apply to the municipality for an amendment to the their regulations to provide an exemption from the general provision of only five severances per property, that will permit nine severances specifically for family members over time. My mention of acquiring an exemption goes back to before the regulations were brought into effect. The regulations at the time were being circulating as a draft document to glean support. Unfortunately, no formal application was made at that time. Nor was an application made when I recommended this again last year.

There is a good planning argument to be put forward, not the least of which being the Roche family’s size. I’d be happy to work up a draft planning argument for the review of the family members and for the lawyer to bring forward to the municipality. I’d also be happy to attend any hearing if so desired.

As it stands now, to proceed with some severances when the total is limited to five, puts duress upon the remaining family members. It would be much simpler if we all were confident that we could get a severance when we needed one. The lot sizes would be in the neighbourhood of 12 to 15-acres, having taken off the lands south of the Glenfield Rd., Connemara Rd. allowance, the lake, etc. The lot shapes would be defined by a schematic that we agree to, showing how the property will be divided in order that the other signatories would execute any severance requested without hesitation.

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There’s a considerable cost savings here, which also removes any financial means-test implicit to the current duress. If everyone knew they could perfect their lot at any time in the future, and they knew what shape it would be, I imagine that most people would spare the expense until such time as they actually intended to build.

Under the present regime four signatories out of the ten will be granting severances to others, meanwhile with the same stroke extinguishing their rights to equal consideration to sever and to build.

Secondly: The Family Compound is Rolled into a Lease Back

Having addressed the primary considerations of individual interests in the property, which has effectively fragmented it into ten pieces, we need to look at the common considerations. After all, the true beauty of the property is the enjoyment of the place in its entirety. This is an aspiration shared in the visioning exercise. This can be achieved by applying a lease over all of the parts. The lease is the ‘family compound’ in spirit and in fact. It would exclude an area, a clearing so to speak, on each lot for individual house building purposes. The size of these clearings would be equivalent to the area Greg described earlier, around 1.5 acres per lot. These could be determined at the whim of each owner, depending upon his/her preference for a building location. This in itself will avoid the inconvenience of perfecting pre-conceived lots, which may unnecessarily bind on house building plans at the time of construction.

The lease would enable free range over the properties in favour of family members and the ability to erect common facilities like we already have: platform tennis, baseball and trap shooting. Furthermore, the qualities we wish to preserve and/or create for the lake, foreshore, side yards between lots, and the lands beyond the vicinity of the lake could be described within the lease. In the instance of the foreshore and along the lot boundaries projecting back from the lake, I’m especially interested, myself, in creating a continuous walking trail around, which would also provide free passage between houses to the lands behind.

The duration of the lease is to be considered by the family as a whole. Anything short of twenty years, more-or-less, does not need municipal approval; longer leases require its consent. I would like to propose for discussion purposes that the duration of the lease be considered through the second generation, i.e. in the neighbourhood of fifty years.

The nice thing about the lease is that we get to manage it, and we can adjust its attributes by common agreement. The particulars of which do not have to be approved by the municipality.

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An outside buyer would not benefit from the lease. He/she would acquire free and clear the 1.5 acres, which would effectively be a 1.5 acres lot, which resembles Dave’s lot proposal sizes. The remainder of the land would be subject to the lease, and the owner would not have the benefit of the lease. He would have access and right to use the lake.

Thirdly: Stipulations Affecting Both Family and Non-Family Owners

At some time in the future there will be sales to outsiders. Hopefully this can be postponed until the end of our generation, and otherwise handled in an equitable manner. For instance, providing the right of first refusal to family members, or a period of notice of sale to hopefully enable a sale to a family member prior to going to the outside market. These are common real estate considerations.

In order to protect the quality of the environment, and each individual’s privacy and ’quiet enjoyment’ there are stipulations that should be registered on title and run with the land, which will bind both family members AND outside owner alike. These would be items where we want additional restrictions than the general provisions of municipal regulations. These would include setbacks from the lake, side yards etc. They need to be enshrined in the title rather than the lease, because the outsider will not benefit from the lease.

Terry Mills Oct.20/06