Friday, December 18, 2015

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

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.

Friday, December 4, 2015

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.


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.