For Richard and Haide Giesbrecht, adding a treehouse to the top of their 10 x 12 garden shed seemed like a good idea for their children.
With three ladders and a slide, the treehouse would be especially useful for one of their children, a 10-year-old girl.
“The treehouse would provide our daughter, who has sensory processing issues, a safe and quiet retreat on days when life overwhelms her,” the Giesbrechts told Township council last month.
“We had more than the necessary setback and the size was small. Both neighbours were aware of what we were building and its purpose. Neither raised concerns with us,” said the couple, who live on 206A Street in Brookswood.
They did not apply for a building permit, because they believed the structure was exempt.
To the Township, there were two major problems: The structure was not exempt from its bylaws, nor was it a treehouse.
“It’s not built in a tree. It is a building with a playhouse,” said Robert Cezaretti of the Township’s permits and licences division.
The property is in the R1e zone, where accessory buildings such as detached garages, sheds, pool houses and playhouses cannot exceed 3.75 m, or one storey, whichever is less.
Except for some siding and safety rails that needed attaching, the tree house was completed when a bylaw enforcement officer and a building inspector showed up at Giesbrechts’ Brookswood home in early July. They advised that complaints had been filed.
A building and licence inspector told the Giesbrechts that he would see if it was necessary to go before the Board of Variance (BOV).
Word came the next day: Dismantle the treehouse or appeal to the Board of Variance.
The role of a BOV is to focus primarily on hardship relating to matters of siting, dimensions and size of buildings.
On Sept. 20, Haide Giesbrecht presented the family’s case to the BOV, and was surprised when questions seemed to focus less on the treehouse and more about chickens.
They had chickens in their backyard, unaware that that contravened the zoning bylaw.
“The issue of the chickens was a completely unrelated matter,” they told council, adding that they moved the chickens as soon as they found proper housing for them on a farm.
They advised that the treehouse structure was never intended for the chickens, and that the shed was used to store a lawnmower, bicycles, and other materials.
“The complaining neighbours were fully aware of what was being built and what its purpose was,” they said.
On Sept. 21, they learned that their BOV application was denied on the grounds that the treehouse was not a permitted use. They told council that the BOV should have disclosed who complained about the treehouse. A Freedom of Information request was also denied.
“At this point it became very clear that we had not been given a fair and impartial hearing on the matter,” the Giesbrechts told council.
The following day, the Township informed them that the application was denied because “the BOV could not reverse a decision it had already made because there would be legal implications if it did so.”
The Giesbrechts maintain that their application met the qualifications for a variance on the grounds that “a small 6 x 6 foot treehouse with a peaked roof that, at the tip of the peak, only exceeded the building height restriction for a single storey building by three feet. It was not a full 2-storey building.”
They pleaded hardship on the strength of their special-needs daughter.
“We built the climbing structure and the treehouse as part of the solution recommended by our daughter’s occupational therapist and more recently by her psychologist,” they told council.
“Both recommended a place where our daughter could pull away and have a private area where she could be removed from the noise that she has such difficulty filtering out,” they said.
Some days all noises, even the sound of someone in another yard speaking at normal voice, “seem too overwhelming to her.”
Tall evergreens almost completely conceal the treehouse from the homes on either side of the Giesbrechts’ house; There are no other neighbours as the home backs on to Bell Park.
“We built the shed/treehouse in good faith, believing that our footprint was small enough to not require a permit, but not realizing that the small 6 x 6 foot treehouse was three feet too tall at its peak,” they said.
The Township, however, says that the height contravenes its bylaw long before the structure reaches its peak.
Cesaretti, the Township’s manager of permits and licences, said that the bylaw limit is 3.75 m. or one storey, whichever is lesser. He noted that the average height of the structure between the eave and the ridge is 4.6 metres, creating a two-storey building.
After the BOV rejected the Giesbrechts’ application, the Township allowed them to re-submit information in a letter to the BOV.
The BOV studied the letter, but did not alter the decision.
The Giesbrechts said that reducing the treehouse as required would leave a three foot high crawl space, which would be useless for their daughter and her siblings.
“Moving the treehouse structure into the tree next to the shed and building a bridge across to the shed would work, but the cost of it would be a burden on our family of six who live on one main income,” they told council.
They said they believe that the BOV has the legal authority to reconsider its decision, but a provincial government spokesman pointed to Section 901(8) of the Local Government Act which states: “A decision of the board of variance under subsection (2) is final.”
“If the Board of Variance wants to reconsider its decision, it should get legal advice on this matter,” the spokesman said.
The Giesbrechts say that it’s not so much the BOV decision they object to, but that they were never given a fair and impartial reading.
Cesaretti said that his department is working with the couple to make the structure comply with the bylaw. The Township will hold off enforcing the bylaw until a report, which council requested, has been completed, he said.
