The OHA: What the courts have to say (part five) ... or, the heritage "roadmap"

Today’s case, another from the OMB, is from 2010.  In ADMS Kelvingrove Investment Corporation v. City of Toronto we see an important evolution in the Board’s understanding and enunciation of its role when confronted on appeal with the all too common face-off between heritage and development/intensification. [Note 1]

Kelvingrove Apartments, Leaside, Toronto

The case involved three designated low-rise garden apartment complexes on Bayview Avenue in Leaside, Toronto.  The developer sought to demolish the buildings and replace them with a block-long eight-storey apartment building and 54 townhouses.  The city refused the required planning approvals (Official Plan Amendment and rezoning) and heritage approval (consent to demolition) and the developer appealed. 

At the Board the developer argued that the planning merits of its project, especially in furthering provincial policy objectives for intensification under both the Provincial Policy Statement and the Growth Plan for the Greater Golden Horseshoe, trumped the “relatively weak” heritage argument for retaining the buildings.  It cited the OMB’s decision in the 2009 Port Dalhousie case we looked at earlier [Note 2] and its stated need for the “balancing” of different provincial policy goals in deciding whether a development proposal with major impacts on heritage should be approved.

In a landmark ruling, OMB member M. C. Denhez attempts to provide a “roadmap” for approaching cases of this kind — where a municipality exercises its OHA powers to refuse the demolition or removal of heritage structures that find themselves “in the way” of a developer’s plans.  While the “roadmap” is not binding on future panels and it is too soon to assess its long-term influence on OMB decisions, the clarity and persuasiveness of the decision means it is likely to have significant staying power.

First of all, the Board takes issue with the word “balance” and the approach it suggests — one that assumes a policy environment of competing, even conflicting directions. 

“The word ‘balance’ often appears in Board decisions — usually in weighing public interests against private rights. But does one presume that within the realm of public interests, Provincial instructions are mutually contradictory and similarly need “balancing’?”

We have in Ontario a policy-led planning system and the Provincial Policy Statement “supports a comprehensive, integrated and long-term approach to planning and recognizes linkages among policy areas.” [Note 3].  So, says the Board, there should be no initial presumption that provincial planning directions conflict.

“To assume otherwise, at the very outset, is to presume not only that the PPS fails at being ‘integrated’; it assumes the province is incoherent.” [Note 4]

Rather, the starting point should be to see if those directions — in these cases typically heritage conservation on the one hand and intensification on the other — can be “reconciled.”  Instead of a question of one policy trumping another, or a question of trade-offs where one direction is promoted at the expense of another, the objective should be to attempt to mesh different policies, advancing their goals in concert.

“ So this case is not about determining ‘which policy direction is the stronger one’, and … it is not about determining whether loss of heritage ‘is more than outweighed by the benefits of development.’ “

The Board finds that heritage conservation is not about “pickling buildings in formaldehyde.”  There is no inherent or necessary conflict between heritage conservation and intensification or between heritage conservation and development; certain kinds of development (rehabilitation, conversion, sympathetic expansion) may be entirely appropriate at heritage sites.  It follows that our planning and decision-making should seek to reconcile these public objectives, so that the redevelopment of heritage property as far as possible is compatible with both.

To continue with the “roadmap”... in demolition or removal appeals that come before the OMB, the test is whether the municipal council’s refusal was unreasonable, not what the Board would do if it was deciding the question in the first instance.  The OMB should be especially wary of substituting its own assessment of the heritage importance of the property concerned.  The OHA, after all, provides a special process for this — involving the municipal council, its municipal heritage committee and, on objection, the Conservation Review Board.  The Board essentially concludes that where a property has been designated there is a presumption that the designation is sound and legitimate.  (The presumption is theoretically rebuttable, but the bar would be high!)

Finally — and most significantly — when deciding the future of a designated structure, “there should be no mistake”: conservation is the general rule and demolition the exception.

The OHA does allow for the demolition of a designated building, but the Board here is essentially saying that municipal councils in the first instance, and the OMB on appeal, should approve demolition only in very exceptional circumstances.

What are these circumstances?  Good question.  But based on the “roadmap” provided by this decision it does not seem to be enough to argue that a proposed development would replace the heritage building with something “better.”  The designation has pretty much already settled that retaining the heritage values of the site is better than any alternative.  So in this sense heritage actually has priority!  (Perhaps a case can be made for demolition where heritage values have been greatly compromised, say as a result of fire or long neglect.)

It will come as no surprise that all the appeals in this case were dismissed.

Where does this leave us? At the risk of oversimplifying:

1. Planning for heritage property demands that every effort be made to reconcile different provincial policy directions; development and intensification can be accommodated while conserving a property’s heritage values
2. Heritage designations must be respected in planning decisions
3. Designated structures should not be demolished; the supposed benefits of replacement development do not justify exceptions to this general rule
   

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This will be the last OHA+M post for 2015.  Happy Holidays, everyone!

Note 1:  April 7, 2010. OMB case no. PL081065.

Note 2:  See “The OHA: What the courts have to say (part three) or… Port Dalhousie blues”, November 20, 2015.

Note 3:  Provincial Policy Statement 2014, p.1.

Note 4:  From Solaris Energy Partners Inc. v. Township of East Hawkesbury, May 5, 2009, a case referred to in the decision here (and decided by the same OMB member). OMB case no. PL081345.

The OHA: What the courts have to say (part four) ... or, to move or not to move?

From Port Dalhousie last time we go across Lake Ontario to the old village of Bronte in Oakville and another Ontario Municipal Board case about a mammoth lakeshore development with impacts on heritage: Birchgrove Estates Inc. v. Town of Oakville. [Note 1]

This one is a particular favourite… and you’ll see why.  But first, a little build-up.

In late spring 2005 Oakville MPP Kevin Flynn (now Minister of Labour) stood in front of an embattled historic building on the Bronte waterfront to announce the strengthening of the Ontario Heritage Act.  This was part of the communications roll-out of the passage of Bill 60, which became law in April of that year.  The pivotal change to the Act was giving municipalities the power to say no to the demolition or removal of designated heritage structures, subject to the owner’s right of appeal to the OMB.

Early photo of Glendella Hotel, Bronte, courtesy Oakville Public Library

The building Mr. Flynn used as a backdrop was Glendella, an old hotel from about 1845, which had served as a stagecoach stop on the old lakeshore road between Toronto and the head of the lake.  A Bronte landmark, the two-and-a-half storey frame building had been designated in 1987.

Glendella was part of a large site that had been assembled by a developer, Birchgrove Estates, for a huge mixed commercial and residential project, including two (six and 12 storey) condo buildings.  The proposal called for relocating Glendella and another designated building, known as the Art Gallery, within the site, where they would be restored and reused.

The Town of Oakville was not enthralled with the proposal and in 2006 turned down the planning approvals required (OP amendment, zoning change, site plan approval).  It also used its new powers under the OHA to refuse consent for the moving of the two heritage buildings.  The developer appealed all five decisions to the OMB.

In a rather unorthodox approach the Board broke the case into two and heard the “heritage appeals” first and the “planning appeals” later.  This had the virtue of a separate hearing — and resulting decision — concentrating on the core heritage issue: should these buildings be moved or stay where they were? 

The 18 page decision, by OMB member Susan de Avellar Schiller, makes an excellent read.  In addition to the then-new 2005 Ontario Heritage Act, the Board looks to the then-new 2005 Provincial Policy Statement and identifies the main provincial planning interests in play — intensification and cultural heritage conservation.  It examines the tension between these policies and the need for a “balancing effort.” [Note 2]

The Board also considers other seminal international, national and provincial documents that should help guide decision makers — the Appleton and Burra heritage charters, the Standards and Guidelines for the Conservation of Historic Places in Canada, and the culture ministry’s Heritage Tool Kit guide Heritage Resources in the Land Use Planning Process. [Note 3]

The Board ultimately concludes Glendella and the Art Gallery can be moved.  (The Art Gallery has been moved before.  Glendella is harder, but its historic milieu already is greatly altered, and it would be moved just around the corner from where it stands.)  Whether this decision is “right” or not, it stands out for its lucid analysis of the legislative and policy context in which many conservation battles get fought and its considered application of policy principles to the core issue.

In the end… Glendella stayed put.  It was renovated and restored and is now a residence. [Note 4]

Glendella today

But wait, there’s more.  At the outset of the OMB hearing an interesting procedural matter had to be dealt with…

The Town sought to have a member of the Conservation Review Board join the OMB panel hearing the case.  The power to appoint CRB members to OMB panels hearing appeals under the OHA was an innovation added to the Act with the other 2005 changes.  The idea was that the OMB, which was being given a greater role in the Act’s regulatory regimes, might benefit from the contribution of a CRB member with heritage experience and expertise.  And — since the OMB was viewed with suspicion by many — help lend credibility to the process and decisions.  The new power to appoint was discretionary — that is, up to the OMB, but the CRB would of course have input.

Great idea, no?  The problem was that the implementation had not been thought through.  At that time — mid 2000s — the two tribunals had very different resources and cultures.  The big difference was that the CRB was small and had only part-time members, most of whom had other “day jobs” and were used to hearings lasting a day or two; while the OMB had a large roster of full-time and part-time members who often presided at hearings that went on for weeks if not months.

And so when the Town of Oakville, wanting as sympathetic hearing as possible in its face-off with a big developer, asked to have a CRB member added to the panel, word came back that unfortunately no one was or could be available for a hearing scheduled to last a couple weeks.

Now to the personal angle of the story.  I was in the room at the beginning of the hearing, when the Town’s motion to adjourn the hearing until a CRB member could be added to the panel was dealt with.  (As this was the first demolition/removal appeal reaching the OMB since the Act had been beefed up, the culture ministry had a special interest in the result; I wanted to witness things first-hand, at least the high points).  I knew all about the awkward cross-appointment issue — at that time the CRB was a ministry agency and the ministry provided its staff, including me.  But I assumed the communication had been clear.

Well, my presence had been noticed by the Town’s counsel and… before I knew it Ms. Schiller was asking/summoning me to come forward and speak to the issue!  Never that comfortable in the spotlight, I considered for a moment heading for the exit, thinking “she can’t make me do this, can she?”  But it did seem they needed help sorting it out, and so I made my first (and so far only) appearance before the OMB.  It was mercifully brief.  The Town’s motion to adjourn was denied and the hearing continued.

A final footnote: Ms. Schiller is the former Susan Fish, who was the last culture minister in the Bill Davis government — and the third during my years at the ministry.  I spoke to her after the hearing that day, thinking she should know why I was really there.

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With this post OHA+M reaches a milestone — 25 posts! 

Cheers, and thanks for reading!

Note 1: February 7, 2007. OMB case no. PL050679, known as the Bronte Quadrangle case.

Note 2: “In this balancing effort, planning recognizes the complex, though often subtle, interplay of public preference and private judgement.” (p. 6) We see the same word used two years later in the Port Dalhousie decision.

Note 3: With the 2010 Provincial Policy Statement now in effect, this guide is hopefully getting an update.

Note 4: The Town had applied for leave to appeal the Board’s decision discussed here.  The Town and Birchgrove then reached agreement the appeal would be abandoned and the development proposal would be revised.  The new proposal left Glendella in situ.

The OHA: what the courts have to say (part three) ... or, Port Dalhousie blues

This time it’s not the courts but that powerful court-like tribunal, the Ontario Municipal Board.

Reviled in some circles and respected (often grudgingly) in others, the OMB generally has not endeared itself to heritage folks.  We’ll look at one of the reasons why: its decision on a tower development in Port Dalhousie, the old canal village on Lake Ontario in St. Catharines.  [Note 1]

Oh, Port Dalhousie… what a saga.  A book could be written on the long lead-up to the OMB hearing, the hearing and decision itself and the reaction to it, then the long and still, sadly, unfolding aftermath.  Fortunately for you I'll be focussing on the decision and its fallout and stop at 1000 words!

An artist's view of the proposed condo tower looming over Port Dalhousie

Following a 21 week (sic) hearing, the Ontario Municipal Board in February 2009 approved a proposed private development in the Port Dalhousie Heritage Conservation District.  The project, smack-dab in the heart of the commercial core of Port Dalhousie, included a 70 room hotel, a 400 seat theatre and… a 17 storey condominium tower.  The proposal was vigorously opposed by a local citizens group, Port Realizing Our Unique Distinction (PROUD).  The city, after initially approving the development, also opposed the proposal at the hearing.

The case was complex, involving appeals under both the Planning Act — Official Plan amendment, zoning bylaw and site plan appeals — and the Ontario Heritage Act — appeal of the city’s refusal of a heritage permit for building demolition and new construction in a heritage conservation district.  It was one of the first demolition appeals to reach the OMB since the OHA had been strengthened just a few years before.

As well-articulated as the decision was, it was almost certainly wrong.  A big condo tower in the middle of a two and three-storey heritage district?  Strip away all the evidence and argument about revitalization, intensification, planning and preservation… on some basic level it just doesn’t ring true or right.

And so had thought most on the heritage side of the issue as the matter moved forward, expecting that good sense (and lawyer Jane Pepino, who argued PROUD’s case) would prevail.  It was a bombshell when it didn’t.

The reaction to the decision in heritage circles was border-line hysterical.  The decision, it was feared, not only doomed Port Dalhousie, it threatened every heritage conservation district, current and future, in the province.  Heritage Canada (now the National Trust for Canada) went so far as to put all Ontario’s HCDs on its Ten Most Endangered Places List!  At a special forum on the implications of the decision held at Fort York in April 2009, the discussion degenerated at times to screaming.  Some not nice things were said about a couple heritage architects (you know, them) who had helped the developer make its winning case.  The culture ministry was roundly criticized for not doing something.  Oy vey.

Well, almost seven years later the sky has not fallen.  While the decision still evokes passionate debate, I would argue it was never a landmark case.  It did not set an important precedent.  It did not mark a turning-point for HCDs.

Like every court or tribunal decision, the decision here hinged on circumstances particular to the case.  Some key ones:

• The unusual (to say the least) municipal decision-making process… St. Catharines council initially approved the development following an exemplary process, including a seven-day-long public hearing (which all councillors voting on the project had to attend); after an election, the new council reversed the decision, as it was entitled to do, but did so in camera and without further public hearings.  The Board opined that the process followed by the new council “does not pass the ‘smell test’.”  [Note 2]

• Deficiencies in the Port Dalhousie Heritage Conservation District Plan… Under scrutiny it appeared the 2003 HCD plan and guidelines, which covers virtually the whole of PD, were focussed on the (relatively large) residential area and did not adequately address the (relatively small) commercial core. The plan did not set out a vision for the core, guidelines on height were loose and ambiguous, the description of heritage buildings and attributes was not comprehensive, and reference to significant views or vistas was lacking. In the absence of clear objectives for core development and precise conservation ground rules in the district guidelines, pro-intensification and pro-revitalization policies in other municipal and provincial planning documents unfortunately were given greater weight in the Board’s “balancing” (its word) of the public policy objectives involved.
  
  
• Special socio-economic factors of the location… There was compelling evidence that the commercial core of Port Dalhousie was in decline and that this inevitably threatened the heritage resources.  The Board also seemed to accept the argument that the proposed development’s mix of uses would provide a “critical mass” to draw tourists to the area, a key goal of the municipality’s economic development strategy.  At the same time, without the lakefront location and view there would be little incentive for an upscale residential tower.
  

Confusing things further was the question of the status of older, pre-2005 HCD plans.  Port Dalhousie’s was one of the last of these, adopted in 2003 before amendments to the OHA in 2005 made significant changes to district designation — making a plan mandatory for any new district and setting out detailed plan requirements.  HCD plans meeting these requirements are very strong, prevailing over zoning and other municipal bylaws to the extent of a conflict.  The Board in this case concluded that the pre-2005 plan was advisory only.  Meanwhile in a different case another OMB decision issued about the same time had determined that a pre-2005 HCD plan did have the new, stronger stature.

What all this adds up to is a particularly complicated and even messy scenario… one unlikely to be duplicated in an HCD near you.

The lessons?  Among the great many, here are two:

• For municipalities: The importance of HCD plans/guidelines, and the need for their periodic review and updating in line with current OHA requirements and changing local circumstances.  The weakness of the Port Dalhousie plan may have been the decisive factor here.  Anticipate the unexpected.
  
  
• For the province: The weak cultural heritage policies in growth plans (here it was the Growth Plan for the Greater Golden Horseshoe).  While their role in the outcome of this case is not obvious, it remains a cause for concern.  In the Co-ordinated Land Use Planning Review currently underway, the government has an opportunity to eliminate the wimpy “conserve where feasible” language and strengthen cultural heritage protection. [Note 4]

Note 1: Port Dalhousie Vitalization Corporation v. City of St. Catharines, February  26, 2009. OMB case no. PL060850.

Note 2: This determination meant that the Board applied the requirement of section 2.1 of the Planning Act (by which the OMB is required to “have regard to” the municipal council decision as well as the “information and material” considered in making that decision) to the original council decision. The ironical result is that a requirement added to the Planning Act to ensure the OMB pays more attention to municipal decisions ended up working against the new council’s position on the issue, creating a kind of presumption in favour of the earlier decision approving the development.

Note 3: The case also suggests that, in making decisions on HCD appeals, the Board will be governed by the HCD plan in determining what the significant heritage resources and attributes of the district are; the corollary is that evidence about significant heritage features not mentioned in the plan will either not be considered or be given little weight.

Note 4: Four key provincial plans in South Central Ontario are under review. This is the first review of the Greenbelt Plan and Oak Ridges Moraine Conservation Plan and the third review of the Niagara Escarpment Plan. The Growth Plan for the Greater Golden Horseshoe is also being reviewed.

The OHA: what the courts have to say (part two) ... or, getting pushy about designation

We’re looking at heritage-related jurisprudence — decisions by the courts, Ontario Municipal Board and Conservation Review Board about the Ontario Heritage Act.

In the Ministry of Tourism, Culture and Sport’s guidance package, the Heritage Tool Kit, there is one court decision that jumps out.  In fact it is the only decision discussed in the Tool Kit.

In November 2003, an Ontario Divisional Court decision in the case of Tremblay v. Lakeshore (Town) held that requiring the owner’s consent before considering the designation of a property was not consistent with the intent of the Ontario Heritage Act. This court decision suggests that a council should consider a request for designation, regardless of whether or not the owner supports it. This means that if council is approached with a request for a designation, it must consult with its Municipal Heritage Committee (where one exists) and discuss the matter at a council meeting. [Note 1]

The case concerned the historic franco-ontarian church in the hamlet of St. Joachim, 40 km east of Windsor.  The church’s owner, the Roman Catholic Diocese of London, was carrying out an amalgamation — “clustering” they called it — of three parishes, including St-Joachim.  The diocese declared the church redundant and closed it, then sold it and made demolition a condition of the sale.  A demolition permit was issued.

A community group, SOS Eglises, sought to save the church from destruction and have it designated by the municipality under the OHA.  But the council of the Town of Lakeshore wanted none of it.  It went so far as to pass a resolution to require that any requests for designation of heritage property be made by the owner of the property!  Its refusal to even consider the designation of St-Joachim resulted in a court challenge by SOS.

Interestingly, the town defended its position by arguing that a designated building could be demolished by the owner after 180 days (true, before the 2005 amendments to the OHA provided so-called permanent demolition control powers), so what was the point of designating unless the owner was on-side.  In fact, the council — at that point — just had no appetite for a fight with the diocese over preservation of the church.

The court was not impressed, noting that while the power to designate is a discretionary one, there are limits on the exercise of discretion; here the town had attempted to tie its own hands by setting a pre-condition (owner’s consent) on the use of its powers; and this was patently unreasonable (the test for judicial intervention) given the purpose of the OHA and the fact that the Act obviously anticipated that property owners might not consent by providing a process for hearing objections.

So the question of designation of the St-Joachim was tossed back to the council for reconsideration.

Which then occurred, resulting in… a rather kooky decision to designate the spire and belfry of the church, with the intention of moving them to ground level as a kind of memorial so all the rest of the building could be demolished.  Objections from SOS led to a major Conservation Review Board decision in 2007, which got things back on track with the designation of the whole building.  Which led to the town refusing the diocese a new demolition permit (in the meantime the OHA had been strengthened).  Which led to an appeal by the diocese to the Ontario Municipal Board… an appeal the diocese abandoned a few weeks before the hearing was set to begin.  Whew!  Today the much fought-over building still stands, still awaiting a new use.

Some observations:

1. Tremblay is rightly considered a landmark.  It essentially says municipalities cannot have a policy against designation without the owner’s consent, and that a municipal council must give unique consideration to each proposal that comes before it.
2. At the same time it is the practice of most municipalities not to undertake designation where owners are unwilling (what are sometimes slyly called “hostile” designations); in other words the non-consent of the owner weighs definitively in their decisions.  They just don’t put it in writing.
3. Proposed designations may not even get before council.  The OHA does not provide for an application for designation.  While the court in Tremblay refers to an “application” by SOS as if it were a statutory process, there was nothing more than a written request.  (If there is a weakness in the decision, this is it.)
4. Municipalities with municipal heritage committees routinely route requests for designation — whether from owners or others — through their committees, and sometimes they die there.  Sometimes they should.  (Councils take note: another good reason to have a municipal heritage committee.)
   

Back to the Tool Kit, it probably goes a little far in its conclusion that “if council is approached with a request for a designation, it must consult with its Municipal Heritage Committee … and discuss the matter at a council meeting.”  (The Act requires councils to consult with their MHCs only before deciding to designate a property; Tremblay says nothing about MHCs.)  This is more a best practice than a “must-do.”

Finally, from an advocate’s perspective, I think more use could be made of this case by Architectural Conservancy Ontario and other groups to push municipalities — and their sometimes torpid heritage committees — to consider designation of properties at risk.  Heritage designation will never be mandatory, folks.  Tremblay is as good as it gets.

Note 1:  Designating Heritage Properties, page 10.

The OHA: what the courts have to say (part one) ... or, when moveables become immoveables

Our topic for today — please don’t be scared away — 

Is what the courts have had to say…

about the O-H-A.

AKA jurisprudence: how the courts and, from a wider perspective, our regulatory tribunals — the Ontario Municipal Board and the Conservation Review Board — have interpreted the Act and its regulations.

As we saw last time, during debate over Bill 60 ten years ago, a group of church organizations claimed that the legislation — specifically the controls on demolition of designated buildings — was unconstitutional because it violated the right to freedom of religion under the Canadian Charter of Rights and Freedoms.  Although the bill was passed into law unaltered, no challenge of the kind was, thankfully, ever pursued.  Would have made for a fascinating case though.  Imagine the courtroom drama!  And then the excitement of the court’s decision — the Act (demo provisions) upheld… or the Act struck down… or the Act struck down for faith group owners but upheld for everyone else. [Note 1]

Not complaining, but there hasn’t been much courtroom, let alone courtroom drama, associated with the OHA.  For a statute that’s been around for 40 years there are remarkably few court decisions.  Probably this is because the legislation was, until Bill 60 came along, relatively weak, so property owners (the most likely challengers) didn’t see much at stake.  Also that the two tribunals involved have, as intended, borne the brunt of what disputes there have been — and have handled these competently, with few errors in law that would open the door to review by the courts.

But there have been some interesting cases, and I’m not counting those that turned on procedural points like whether notice of designation was properly given or not.  Let’s look at one, just decided this month: Foley v. Corp. of the Town of St. Marys. [Note 2]

Andrews Jeweller building during shooting of Murdoch Mysteries episode, 2014

The case concerns the iconic Andrews Jeweller building in downtown St. Marys.  The 1884 building is in the middle of a heritage conservation district but is also individually designated — outside and in.  And it’s the “in” that led to the dispute here.

The designation by-law, from 2008, covers the building exterior and “all of the original interior features” from 1884.  While these are not spelled out, the by-law has a schedule attached with photos of the interior, and the photos, not unlike the historical one reproduced here (although minus the jewellery!), show a wall clock, walnut cabinets and counters, and mirrors.

Interior of Andrews Jewellery store, courtesy St. Marys Museum

The owners argued that these features were chattels or personal property, not real property, and that their designation was invalid, since only “real property” including “all buildings and structures thereon” can be designated under the Act.

The back story here is that the out-of-town owners have been trying to sell the building for years and are convinced that the restrictions on the truly gorgeous interior are scaring off buyers.  [Note 3]  After attempting in vain to get the Town to remove the designation of the interior, they sought redress from a higher power.

So the court was faced with the question — were the clock, cabinets, etc. personal property (not designatable), or were they fixtures, part of the real property (designatable)?  In a different lexicon, moveables or immoveables?

From the leading cases on the distinction between chattels and fixtures, the court identified two principles as germane to the case:

1. an object that is only attached to a building by its own weight is not part of the real property unless there is evidence to show it was intended to be part of the building
2. an object is considered a chattel unless there is evidence it is affixed with the intention of improving the property or premises as a whole

Now the wall clock in the Andrews Jeweller building could simply be lifted off its hook, and this had been done for cleaning purposes.  The counters were just sitting on the floor.  Removal of the cabinets and mirrors would be more difficult but could be done without damage.

Nevertheless… the court concluded they were all fixtures:

The evidence establishes that they were designed and installed for the express purpose of attracting customers and selling jewellery through an enhancement of the realty.  The wall clock, cabinets and counters were purposefully designed and built into the store for a specific purpose.  They were used for that purpose and never moved again in over 100 years.

And so the owners’ suit miscarried.

A sensible result.  It seems the test is not (the simpler) one of how easy a heritage element can be removed, but (the harder) one of intention and purpose of its installation.

I guess you could say that when it comes to designating interior features, you don't necessarily have to nail it to nail it.  (Sorry.)

I’ll leave you to ponder the implications for other old stores and their counters and shelves, for old churches and their alters and pews, for old town halls with their wallclocks and furniture… et cetera.  Does it matter if these things weren’t "original" but added later?

Andrews Jewellery building during shooting of Murdoch Mysteries, 2014

Note 1: In drafting Bill 60 the culture ministry sought a legal opinion on whether proposed tougher demolition controls would hold up and was advised to include “no compensation” provisions (OHA section 68.3); but compliance with the Charter was not considered. 

Note 2: Superior Court of Justice File No. — 15-2635; dated October 9, 2015.  http://www.canlii.org/en/on/onsc/doc/2015/2015onsc6214/2015onsc6214.html
The lawyer successfully arguing the Town's case was Eileen P.K. Costello, of the Toronto firm of Aird & Berlin. Note: The owners appealed the decision but the Court of Appeal dismissed the appeal on a technicality in June 2016.

Note 3: The designation certainly didn't scare off CBC's Murdoch Mysteries when it came to town a year ago to shoot two episodes of their series, one involving a gang of female jewel thieves. The Andrews building, both inside and out, played... a jewellery store.

The churches versus Bill 60

Okay, deep breath…

In this country the separation of church and state is a given — even if the two occasionally find themselves at odds.  Unlike earlier times when the “established church” exerted a domineering influence on government policy, today it is usually the government that is accused of trespassing on matters of faith and trampling religious freedoms.  The current controversy in Ontario over a new sex-ed curriculum in schools is one example.  The wearing of the niqab at citizenship ceremonies and in the public service, now (shamefully) a hot-button federal election issue, is another.

Heritage policy in this province has seen its own dramatic church/state divide.  In the first post of this blog I tell the story, from an inside-government perspective, of the long years of effort spanning four governments to overhaul the Ontario Heritage Act.  Finally, legislation, known as Bill 60, was introduced in the Legislature in the spring of 2004.  I blamed the delay in its passage on trouble with church organizations:

A year later, delayed by a fierce eleventh hour assault by certain faith groups intent on diluting the legislation, … the new Act was passed and given Royal Assent on April 28, 2005.

What happened there?  Why the “assault”, how was it turned back, and what was the fallout?

To go back a ways…  It is elementary that the making of good public policy requires consultation with stakeholders — with those who have an interest in or may be affected by a new policy.  The enormous and exhaustive public consultation process on heritage policy and legislation undertaken in the late 1980s included church groups (frankly it would be hard to think of a sector it didn’t reach out to).  From what I recall, faith organizations did not have much to say.  Nor when the various reports and recommendations for heritage policy and legislation were released in the early 1990s.

But later, for a decade, nothing much happened, at least that was visible from outside the culture ministry.  Then, suddenly — from the standpoint of someone not paying much heed — there was a bill before the House!  And on the first reading of a bill it becomes public, and starts to get attention.  And (one hopes, since this is the purpose of our legislative process) real scrutiny.

Of course, when the governments of the day (early 2000s) — Conservative first, then Liberal — at last got engaged in reviving reform of the Ontario Heritage Act, they wanted assurance stakeholders were in support.  In view of the long history, direction was given to consult expeditiously with three key interest groups: municipalities, heritage organizations and the development industry.  The culture ministry brought these sectors, as well as other provincial ministries, on side.  Legislation was drafted and by April 2004 Bill 60 was launched.  Second Reading took place in September and the finish line was in sight.  

As best I can tell, it was about that time the bill caught the eye of a law firm representing the Roman Catholic Archdiocese of Toronto.  Not long after all hell broke loose.

Led by the Archdiocese, a coalition of Christian churches objected strenuously to the bill, especially the strong demolition control provisions, which they saw as unfairly limiting their ability to alter/demolish/sell redundant church property.  They said — with some justification — they had not been consulted.  They even claimed the legislation would infringe their Charter rights, backed up with a legal opinion that it was likely unconstitutional!  Yikes.

At the committee hearings on the bill a formidable delegation of church representatives inveighed against it.  The bill cleared committee, but…  the Archbishop of Toronto had called the Premier’s Office.  At the ministry we knew we had a BIG problem.

To address the concerns, the government agreed to create a working group of church organization and ministry/Ontario Heritage Trust representatives.  Pending recommendations from this group the bill would be stalled.  At the beginning of 2005 the group worked feverishly and, on a number of lesser issues, such as the proposal for provincial criteria for heritage designation, made progress (mainly by bringing the faith groups to a better understanding of the bill’s provisions).  But on the main bone of contention — permanent demolition controls, the lynchpin of the whole reform exercise — there was an impasse.

The faith groups would go along with strengthened controls on demolition but insisted that their exercise by municipalities be tempered by a list of “factors”, the key one being the financial circumstances of the property owner.  They preferred this be done via a regulation that mandated consideration of the factors, and that the bill be amended to provide for the development of such a regulation.  The ministry/OHT reps, on the other hand, were prepared to go only so far as to commit to a wider public consultation on the question after the bill was passed.

What would the government do?  Weeks passed, then months.  It seemed like the whole thing was about to go down the proverbial drain.  Heritage groups and some municipalities, hearing whispers of behind-the-scenes drama, called for the bill to move forward.  Then, in April 2005, the word came down — Bill 60 would be called for Third (and final) Reading.

The end?  No, only the beginning of a very long end to the standoff.  Later that year the ministry carried through on its agreement to consult on factors to be applied in decisions by municipal councils (and, on appeal, the Ontario Municipal Board) and the results were predictable — the faith groups wanted them, virtually everyone else didn’t.  A “compromise” proposal to implement the factors through an unprecedented formal ministry guideline instead of a regulation was (thankfully) vetoed by Minister Madeleine Meilleur.

But the government had to do something.  We looked at these initiatives last time.  First, in 2006 the minister announced $1 million in funding to the Ontario Heritage Trust for the development of a comprehensive inventory of Ontario’s places of worship.  More recently — after years of continued badgering — the culture ministry created a working committee of faith groups, heritage professionals and municipal staff to grabble with the outstanding issues, work that resulted in a Heritage Tool Kit guide on conserving heritage places of worship.

And perhaps also since time has gone by and the results of Bill 60 for religious properties have not been as dire as some faith groups feared, this particular church/state policy squabble seems at last to have died away.

What to do about churches? (part three)

Stained glass dome, Highgate United Church, now Mary Webb
Cultural and Community Centre, Highgate 

There’s something else about churches…  

Back to basics for a minute.  Built heritage conservation is not supposed to be about use (as long as there is a viable one of course!).  So whether an old factory is used for its original industrial purpose, adapted for commercial use or turned into chic condos is all the same — right? — provided its heritage features are identified and respected along the way.  Heritage is about the fabric or “bricks-and-mortar,” the physical features of the place; while what takes place within/on that fabric/property — the way it is used — is pretty much irrelevant.

This at any rate is the premise of our chief tools for legal protection — heritage designation and heritage easements under the OHA.  They do not in themselves restrict (or permit) the use that can be made of a property or place.  Zoning, our basic land use planning mechanism, does that.

And yet, we do accept that a heritage structure continuing in its original use is the best of all scenarios.  From the Appleton Charter:

Use — A property should be used for its original purpose. If this is not feasible, every reasonable effort shall be made to find a compatible use which requires minimal alteration. … [Note 1]

So continuing original use is almost always preferable to adaptive re-use.  Why?  Obviously it’s simpler, less complicated.  Adaptive re-use involves, well, adaptation and intervention — physical changes which may have an impact on heritage attributes.  But it’s more than that.  Something else inevitably melts away when an old building is repurposed (as we now like to say) and its traditional use ends.  Something intangible.  Hard therefore to nail down, but having to do with a heightened sense of place, nearness of the past, consciousness of continuity.  Sometimes we call this, rather inadequately I think, authenticity.

Nowhere is this more the case than with churches, places of worship, places where generations of people have come together as a community to celebrate their faith.  A church repurposed, even to the highest conservation standards, can’t help but be a shell of what it was… you could go so far as to say its “soul” has been lost. [Note 2]

Indulging the metaphor, this may help explain the reluctance of some faith organizations to save the “body” (the fabric) when the “soul” (the spiritual focus) of a building is no more.  Unfortunately they sometimes choose to overlook the possibility that their place of worship could continue to serve as another group’s place of worship.

St. George's Greek Orthodox Church, formerly a synagogue (Holy Blossom Temple), Toronto

For public policy, all this suggests that special measures should be considered to keep heritage places of worship as just that — places to worship — as well as to help overcome barriers to adaptive re-use when that’s not possible.  What might these be?

To start, tax-exempt status clearly benefits continuing use by faith organizations and should be maintained.  To facilitate ongoing use, heritage restrictions must be applied very gingerly, especially when it comes to alterations for liturgical reasons and for meeting a congregation's current needs.  But to really improve things there needs to be meaningful financial incentives to help with religious building conservation — to fix that roof! — incentives which Ontario, unlike Quebec, currently (and for way too long) doesn't have.  [Note 3]

But lately Ontario has been doing some things well.  Inventories of course are vital and, at the provincial level, the Ontario Heritage Trust has compiled a mammoth and ongoing on-line inventory of Ontario’s places of worship.  The Ministry of Tourism, Culture and Sport, for its part, recently added a guide to preserving and protecting religious properties to its popular Ontario Heritage Tool Kit.  [Note 4]

After many, many years of doing bubkas for churches, what was the spur for these provincial initiatives?  Therein lies quite a tale… for next time.

Note 1: The Appleton Charter for the Protection and Enhancement of the Built Environment, ICOMOS Canada (English-Speaking Committee), 1983.

Note 2: The Ontario Heritage Act defines “heritage attributes” (a term used in the Act only in the context of heritage designation) narrowly: “in relation to real property, and to the buildings and structures on the real property, the attributes of the property, buildings and structures that contribute to their cultural heritage value or interest.”  Use is not mentioned, nor does the word appear in the designation criteria in Reg. 9/06 and 10/06.

By contrast, the non-legislative Standards and Guidelines for the Conservation of Historic Places in Canada takes a broader, looser approach, defining “character-defining elements” as “the materials, forms, location, spatial configurations, uses and cultural associations or meanings that contribute to the heritage value of an historic place, which must be retained in order to preserve its heritage value” (underlining added).  

Note 3: In the last 20 years the Quebec government has funnelled close to $300 million to the Conseil du patrimoine religieux du Quebec for the safeguarding of that province's religious heritage (both immoveable and moveable).  The last time the Ontario government had a grant program targeted to built heritage conservation, including churches, was the Heritage Challenge Fund of 1999-2001, which provided just five million dollars on a matching basis for the whole province.  

Note 4:  Check out the Trust's inventory here: 

http://www.heritagetrust.on.ca/Ontario-s-Places-of-Worship/Home.aspx?lang=en-CA. The site includes a few case studies — with hopefully more to come — and some good links.  The ministry's guide, "Heritage Places of Worship: A Guide to Conserving Heritage Places of Worship in Ontario Communities", can be found at: http://www.mtc.gov.on.ca/en/publications/Heritage_Tool_Kit_POW.pdf.

In 2009 the Trust also organized, with Heritage Canada (now the National Trust for Canada), an important roundtable on the preservation of places of faith. The roundtable minutes are at:
http://www.nationaltrustcanada.ca/sites/heritagecanada.org/files/National%20Places%20of%20Faith%20Roundtable%20Minutes.pdf. One of the most interesting presentations profiled Partners for Sacred Places, a U.S. organization that provides information and guidance to congregations and communities to sustain use of historic sacred places: http://www.sacredplaces.org.