Thursday, February 4, 2016

Adjacency and the OMB: New decision says the new must respect the old

2015 ended with an important OMB decision on the question of adjacency — the impact of proposed development on adjacent heritage property.

But first, some background.  Ten years previous, a new cultural heritage policy was introduced in the 2005 Provincial Policy Statement.  Policy 2.6.3, known as the “adjacent lands policy”, now reads:

Planning authorities shall not permit development and site alteration on adjacent lands to protected heritage property except where the proposed development and site alteration has been evaluated and it has been demonstrated that the heritage attributes of the protected heritage property will be conserved. [Note 1]

While new provincial policy measures are clearly a response to emerging problems or issues occurring in many places, as we have seen previously there is often a particular situation or controversy that comes to epitomize the issue and plays an outsized role in convincing decision-makers to act.

Was there one such controversy behind policy 2.6.3?  I’m not sure. [Note 2] But there was a high-profile situation that certainly contributed to the wake-up call: the threat posed by new construction near the iconic Sharon Temple.

The Sharon Temple, completed in 1832, once stood in splendid rural isolation on the edge of the sleepy village of Sharon, some 60 km north of Toronto.  But by the late 1990s serious ex-urban development was already beginning to engulf Sharon and its famous national historic site.  As with so many heritage sites the Temple and its grounds were considered at risk, not by what was happening at the site itself, but by what was going on — or might go on — next door.

Concern about “adjacency” can be seen as part of growing attention in the heritage movement to the context and surroundings of historic structures. [Note 3] But when this concern came to be reflected in legislation and policy directives some precision was obviously required.  For the purpose of policy 2.6.3 the PPS defines “adjacent lands” as “those lands contiguous to a protected heritage property or as otherwise defined in the municipal official plan.” [Note 4] Contiguous is understood to mean touching at the edge, at a point, or along a boundary.

With the prompting of the PPS, municipal Official Plans since 2005 routinely incorporate corresponding adjacency policies. For example, Toronto’s revised OP heritage policies approved in 2015 include the following:

New construction on, or adjacent to, a property on the Heritage Register will be designed to protect the cultural heritage values, attributes and character of that property and to minimize visual and physical impact on it, including considerations such as scale, massing, materials, height, building orientation and location relative to the heritage property. [Note 5]

This particular policy played a pivotal role in the OMB decision of late last year: CHC MPAR Church Holdings Inc. v. Toronto (City). [Note 6]

The designated buildings at Church and Granby Streets in 2010

The buildings today

A developer wanted to erect a 32-storey apartment tower on a relatively small corner site, currently a parking lot, on Church Street in downtown Toronto.  Immediately to the north on Church stands the three-storey Stephen Murphy Houses and Store, a property designated under Part IV of the OHA. [Note 7] To the west of the site along a side street (McGill) is a two-storey house, listed but not designated, and a similarly scaled residential neighbourhood.

The city refused to rezone the site to permit the project and the developer appealed to the OMB.  To the surprise of many, including the neighbourhood group supporting the city’s position, the Board dismissed the appeal, nixing the development.

The “determinative issue” in the case, the Board said, was “conservation of the heritage attributes.”  It concluded that the principal question to be decided was “whether the proposed development conserves the adjacent heritage structures and respects their scale, character and form.”

East elevation with designated buildings on right

South elevation with listed building on left

Adjacency is clearly tricky.  According to the PPS, the test is whether “it has been demonstrated that the heritage attributes of the protected heritage property will be conserved” by the proposed development.  But of course in an adjacency scenario the heritage attributes of a designated structure, if understood as the physical elements of the structure that can’t be altered without municipal consent, are not being altered or changed in any way.

And yet it is easy to imagine the extreme case where a heritage building is completely surrounded by new development and is effectively “lost” — like the hole in a bagel when viewed from the side!

This suggests the crux of adjacency is the view or visual context of the heritage structure.  Note in this regard that the definition of “heritage attributes” in the 2014 PPS is more expansive than in 2005, and includes not just “the property’s built or manufactured elements” but also “its visual setting (including significant views or vistas to or from a protected heritage property).”

In the case here the developer had undertaken the required heritage impact assessment (HIA).  Citing the four-storey podium at the base of the tower and its scale, massing and architectural treatment, the HIA found “that there is limited impact on the adjacent heritage resources and that their heritage attributes are conserved.”  But the Board didn’t buy it for a minute.  

On the contrary, the Board was persuaded that “the development as designed fails to achieve the relevant heritage policies”, starting with policy 2.6.3 and the city’s OP policies including the one quoted above.

Not mincing words, the Board found that the proposed building

…functions in isolation of its surroundings without appropriate regard for its immediate context, especially for the immediate heritage context; and it overwhelms and subordinates the physical attributes of these much smaller buildings with little or no regard for the cultural heritage therein.

The Board describes the tower ”looming over” the designated property “with a 0-metre setback”; it finds the development “will only serve to degrade the massing and visual experience of the heritage structures”; and that such a tall building “diminishes the heritage qualities to the detriment of the heritage buildings’ continued functioning as a visible and distinguished built form remnant of the City’s cultural heritage.”

And so on, and on, for 43 pages!  It's (almost) enough to make you feel sorry for the developer and its rebuffed heritage experts.  And it comes as something of an anti-climax when the Board opines that “this development does not represent good planning” and that “this or any other tall building is likely unable to work on the subject property so long as it is designed in insolation from the proximate heritage structures.” (And the only way around this, the Board implies, is for the developer to pursue assembly of its site with the adjacent designated site.)

Interestingly, not a single other OMB case is referenced in the decision.  This is unusual and seems to confirm that this is the first case the Board has dealt with where adjacency was the main focus.  So it is likely an important precedent, in addition to providing yet more evidence of an increasing OMB comfort with, and sensitivity to, cultural heritage arguments.

The main takeaway from this case?  in adjacency situations “heritage attributes” of heritage properties are to be interpreted broadly and not necessarily limited to those listed in a designation by-law.  The visual relationship between the old and new is key — where the new would visually overwhelm, diminish or degrade the old, these adverse impacts on the heritage attributes will doom the project.

Note 1: The wording was slightly amended in the 2014 PPS.

Note 2: Perhaps my former culture ministry colleagues who worked on the 2005 PPS have the answer... hello?

Note 3: See for example ICOMOS’s 2005 Xi’an Declaration On The Conservation Of The Setting Of Heritage Structures, Sites And Areas:

Note 4: For its part “protected heritage property” is defined as "property designated under Parts IV, V or VI of the Ontario Heritage Act; property subject to a heritage conservation easement under Parts II or IV of the Ontario Heritage Act; property identified by the Province and prescribed public bodies as provincial heritage property under the Standards and Guidelines for Conservation of Provincial Heritage Properties; property protected under federal legislation, and UNESCO World Heritage Sites."

Note 5: Number 25 of 53 heritage policies.  Back in Sharon, in 2009 the Town of East Gwillimbury approved the following OP amendment relating to development adjacent to the Sharon Temple:

5.7.3 (xv) All development and associated municipal infrastructure and public works adjacent the Sharon Temple must be respectful of this significant built heritage resource and its associated cultural heritage landscape. The height, scale, massing, setbacks, sound and artificial light buffering, building materials and design features of new development shall be determined with regard to minimizing their impact on Sharon Temple. It shall be demonstrated through the preparation of a Heritage Impact Assessment that the heritage attributes of the Sharon Temple will be conserved. Mitigative measures identified in the Heritage Impact Assessment may be required as a condition of approval of development and site alteration applications.

Note 6: OMB case PL141140, December 23, 2015;

Note 7: The property was designated by by-law in 2010. The Statement of Cultural Heritage Value or Interest reads:

The cultural heritage value of the Stephen Murphy Houses and Store is related to their Second Empire design, popularized in the late 19th century and identified by the mansard roof. The cultural heritage value of the properties is also linked to their contribution to the evolution of the Church Street neighbourhood as the centre of gay culture in Toronto. Beginning in the early 1990s, the buildings were occupied by the Barn and Stables, a popular gay nightclub. The context of the properties contributes to their cultural heritage value. The Stephen Murphy Houses and Store are prominent local features and visible corner buildings that, in appearance and scale, relate to the adjoining residential neighbourhood along Granby Street and McGill Street.

The list of heritage attributes does not include mention of views. The south wall with the mural (up against which the proposed tower would have been built) and the west wall are specifically excluded.