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.