Thursday, June 30, 2016

Guest post: Michael McClelland on the OHA and the "New Heritage"

I'm very excited to welcome the first guest on OHA+M: Michael McClelland.

Michael will be familiar to most of you. Prior to founding ERA Architects Michael worked in the heritage departments for the cities of Vancouver and Toronto. He is a founding member of the Canadian Association of Heritage Professionals, a member of the Stewardship Council for the Cultural Landscape Foundation and current vice-president of ICOMOS Canada. Michael is the coordinating heritage architect for the Distillery District, has worked on numerous national historic sites and is the author of many heritage conservation district plans in Toronto.  He is also the co-editor for Concrete Toronto – a Guide to Concrete Architecture from the Fifties to the Seventies and The Ward – The Life and Loss of Toronto's First Immigrant Neighbourhood.

Without further ado, here's Michael.  And he (and I) would love your comments...

Making Decisions: Looking at the Ontario Heritage Act, Planning Policy and the New Heritage

When the Ontario Heritage Act was first introduced in 1975, it was a remarkable step forward for heritage conservation. It demonstrated that heritage was highly valued both by the province and the public at large. It provided strong powers to municipalities and it tackled directly the thorny issues of property rights versus the public interest in heritage.

Under the Act the designation of a heritage property could occur without the consent of the owner and without consideration of compensation, even though heritage acts in other provinces contained such compensation clauses. Its only weakness appeared to be limited demolition control – and this was changed in the revisions in 2005.

In the original act municipal councils could refuse alterations to a heritage property but demolition itself could only be delayed by 180 days. This delay was presumably to give the municipality some time to negotiate with a disgruntled property owner. The 2005 revisions removed the delay period and gave councils the authority for outright refusal of demolition permits. While this refusal is appealable to the Ontario Municipal Board and while negotiation is still a valid consideration in much of the heritage designation process, the 2005 revisions created a significantly stronger Act.

We are now ten years after the 2005 revisions and forty years after the act itself and it is appropriate to ask ourselves how well the heritage act is performing. Does it have strengths and weaknesses? Might there be room for improvement?

To evaluate the Act, it is necessary to step back and look from a larger frame of reference. The questions really are — what do we think heritage is, why are we conserving it, and does the heritage act serve our current needs?

In 1877, roughly one hundred years before the Ontario Heritage Act, William Morris and others founded the Society for the Protection of Ancient Monuments, and it is from this society that many of our standard approaches to conservation derive – we perceive heritage as an artifact, an artifact worthy of conservation, and we think of conserving heritage as intergenerational – we conserve as much for our children as for ourselves.

But there is a difference. Morris’s society had an interest only in very ancient monuments and preferably ruins. It took until much later, with the founding of the Georgian and Victorian Societies in England in the early twentieth century, for attention to be brought to more recent buildings.

These newer Georgian, Victorian and Edwardian buildings were buildings that Morris himself would certainly not have considered as having heritage value. With each heritage society there was clearly a sense that the building had to be from the past, but interestingly, with the founding of the each of these societies the distance between the valued past and the present become exponentially closer.

The Austrian art historian, Alois Riegl, writing in the 1890s, added complexity to this discussion of what he called age-value. He argued that historical artifacts do not have value in themselves. The values attributed to them are applied by an engaged contemporary community. Heritage value is created in the present day.

Julian Smith, a prominent heritage architect in Ontario, has provided an outline of how community-based values have been applied here. Corresponding to William Morris’s interest, Smith says that the initial interests in conservation in the province were ‘antiquarian’, implying looking at the oldest and possibly most archaeologically significant sites.

In the later part of the nineteenth century there was a shift towards the ‘commemorative’ heritage site. These sites tended to be military – battle sites and forts – and here it was acceptable, unlike under the earlier antiquarian approach, to rebuild things, including complete forts, if it allowed a greater appreciation of the historic significance of the site. Few ‘antiquarian’ sites were left untouched by this ‘commemorative’ approach.

This was followed by the ‘recreation and tourism’ response to heritage, something possibly connected to Canada’s 1967 centennial and still akin to much of the tourism we see today. Here the interest is not in isolated sites but a larger context of communities and environments that one could visit and experience. The argument is that the authenticity of the heritage resource was a touristic experience – and this in fact remains a global driver for tourism.

But the interest in heritage has moved further. What is good for the tourist is good for the resident, and the last of Julian’s four stages in the evolving interests of heritage conservation is the ‘ecological or environmental’ stage. Heritage conservation can be seen as a fundamental component of place-making, creating a healthy and sustainable environment.

And this is much more about the community that lives there than the tourist who visits. It is also not about specific buildings or sites but about the creation and stewardship of a sense of place. Ideally every place is based on specific history that can be explored, appreciated and managed. And this is how a discussion about heritage starts to get complicated.

We can see that the identification of what is heritage and even the reasons to pursue heritage conservation have evolved over time. In 1964 when Eric Arthur wrote his definitive architectural history of Toronto, No Mean City, he stopped around the year 1900. Presumably for Arthur little built after 1900 merited recognition as significant heritage.

But now in the local context there are grass-root campaigns to save graffiti, neon signs, old trees and 1950s retail strip malls under the name of heritage, and this broadening of the concerns for heritage has perplexed many of the more traditional conservationists.

Along with societies to recognize and conserve Art Deco or Art Moderne, there are also societies to conserve all forms of architecture - the vernacular, the modern, the post-modern, and the commercial. Other societies address the related designed landscapes and open spaces. And this is a condition that is happening not just here but everywhere across the globe as more and more people are seeing heritage as a significant part of the environment in which they live.

Internationally, ICOMOS and other organizations have started to redefine heritage. Gustavo Araoz, the current president of ICOMOS, has said that a paradigm shift has occurred in our understanding of heritage and how it contributes to modern society. And his position is reinforced by other international charters, such as the Faro Convention that links heritage most specifically to human rights. Heritage is not just about an historic site. In this international light, heritage is now seen as a complex matrix involving the environment and people’s patterns of use within that environment.

Locally you could consider Kensington Market in Toronto. Is it the buildings, the produce, the ethnicity or even the sounds and smells that make Kensington Market a nationally recognized historic site?

Potentially everything may have some heritage value to someone and to understand these new relative values requires us to look carefully not only at our artifacts but also our audience.

This complexity is also seen in the world of art conservation, where again it would seem that almost anything could now be considered as art. Salvador Muñoz Viñas’s excellent book Contemporary Theory of Conservation discusses this dilemma for the fine art conservator – aside from the iconic masterpieces, how does the conservator decide, as a professional, what art works warrant conservation? And given the cost of conservation, how is the level of conservation determined?

This may over-simplify Muñoz Viñas’s thoughtful arguments, but he argues first that while all objects may be art, they have different levels of importance – they may be important to a single person or family or they may be important at a broad international scale, with many steps in between.

Secondly, the determination of what the fine art conservator is to conserve needs to be determined through an iterative discussion between the conservator, the expert, and the affected people, the public who value the art. The approach is inclusive, in that it recognizes the pervasiveness of the art object, and relativist, in that the expert cannot alone determine the outcome.

This is a distinct departure from the traditional approach to art conservation which argued that art was a limited field and the conservator as expert, had the only valid opinion.

There may be parallels here between fine art conservation theory and the current workings of heritage conservation in Ontario. The heritage act unfortunately appears to have a very strong binary component – heritage or not-heritage, without gradation, and this is similar to the more traditional approach to art conservation. This binary works very well for key heritage landmarks, and it is important that it continue to do so, but it works less well for what is Muñoz Viñas calls modest heritage and for the newer interests in the broad scope of heritage that threatens to flood the already over-worked system.

The Ontario Heritage Act appears unprepared to deal with this larger cultural shift.

The Act does include a regulation regarding criteria for designation but here again there is little help. The criteria are very permissive so that almost anything tested under the criteria could warrant designation. Is the building a ‘representative’ or ‘rare’ example of an architectural style? Surely most buildings are one or the other. Is the building a ‘landmark’? Is not every hospital, public school or local shopping centre a locally recognized landmark? So almost everything considered under the criteria tends to slide into the heritage bin, without gradation.

The most effective definitions regarding heritage in Ontario are found, not in the Ontario Heritage Act, but in the province’s guide to the Planning Act, called the Provincial Policy Statement (PPS). The PPS was updated in 2014 and in that revision it again proposed some clear guidance for heritage. The PPS outlines why we do planning and states directly what is of provincial importance in the planning process. It provides definitions to explain what it means to ‘conserve’, and that ‘significant built heritage resources’ and ‘significant cultural heritage landscapes’ ‘shall be conserved’.

This direction is relevant to the Planning Act because planners tend to see heritage as one of the many things they need to consider when making decisions regarding planning applications. In fact, the PPS makes it imperative that heritage gets due consideration.

But overall the two acts, the planning and the heritage acts, appear disconnected. Why is it that the heritage act contains no mention of ‘cultural heritage landscapes’, or landscapes of any kind? Why does the PPS say that heritage resources can be significant or potentially less significant when the heritage act’s criteria for designation gives no hint that a tiered system might be permissible?

Why do neither of the two acts provide an overall outline illustrating how they are intended to work together, for environmental, cultural or civic reasons?

To be fair the ministry that produced the heritage act did subsequently issue the ‘Ontario Heritage Tool Kit’ as a way to make an explanatory guide for working with the Act and the City of Toronto recently adopted a series of heritage policies for their official plan, but neither of these address the fundamental weakness of the Ontario Heritage Act that it is binary and provides a limited and rigid set of legislative tools.

No matter what can be said, increased usage of the Ontario Heritage Act won’t address Araoz’s description of the exponential growth of heritage and its paradigm shift in meaning.

Imagine a Margaret Atwood novel where sometime in the near future everything has been designated. In this dystopia, the immutable heritage designation bylaws, however arbitrary or out-of-date, would control all civic processes and gradually bring civic life to a halt.

What can be done? Working with the heritage act and the current planning policy may provide an efficient and flexible approach for addressing these concerns. Ideally, modeling a provincial policy statement for heritage on the PPS might be very helpful.

The policy statement could provide a definition for heritage, a statement of its importance to the province and how it relates to other provincial policy – thinking immediately of connections to planning, culture, economic growth, sustainability, natural resources and aboriginal and immigration policies.

The Provincial Heritage Policy (PHP), a name just proposed in this article, could outline different avenues for conservation of heritage resources, from the traditional designation under the heritage act for significant iconic heritage buildings, to the incorporation of heritage policies into all ranges of government policy.

This could be a vital change, for heritage is in fact not the stale thing of designation descriptions, it is about how people define themselves within the context of a place, it is about how people determine what they value about that place, and fundamentally it is about how decisions for change, to improve and enhance the environments we live in, are made.

Michael McClelland June 2016

Friday, June 17, 2016

Stratford White House — OMB says no to insensitive infill

To recap from last time: the Stratford White House is an 1860s Italianate mansion dressed up with a much later oversized portico (with 18 columns!) and boasts a landscaped front and semi-circular drive.  Prominently located on St. David Street, one of the “best” streets in town, the house currently has three residential units and an events facility.  The property is the subject of an intensification/infilling proposal that would keep the house but cram in three new building lots on the back and west side (Areas 'A', 'B' and 'C' on the plan below).

The White House property is neither designated nor officially listed under the Ontario Heritage Act, but it does appear on a limited inventory of heritage properties prepared by the Stratford Local Architectural Conservation Advisory Committee in 1999.  It is also located in a “Heritage Area” comprising much of the city in Stratford’s official plan. [Note 1]

When the Committee of Adjustment refused the applications for the required severances and minor variances, the owner appealed to the Ontario Municipal Board.  The city’s own planner, who had recommended approval of the proposal (without a single mention of heritage!), was summoned to help the owner make its case.  The city declined to take part in the hearing, leaving the neighbourhood group, Friends of the Stratford White House, as the opponents to the appeal.  The hearing took place on May 12, 2016 and — remarkably — the decision came down not quite two weeks later on May 25.

In a refreshingly short (nine-page) decision, OMB Vice-Chair Steven Stefanko dismissed the appeal. [Note 2]

The Board had no problem finding that the White House is a heritage resource, citing the following:

  • while neither listed nor designated, the property is on the 1999 inventory and is in the city’s “Heritage Area”
  • a previous (2007) OMB decision concerning the rezoning of the property stated that all of the then-parties considered the property a heritage resource
  • in 2005 a “preliminary draft” designation by-law for the property had been prepared (although it went nowhere: “Based on the evidence in this matter, that designation was not finalized as the City’s practice is to require the permission of the property owner prior to designation. Needless to say, that permission was not given.”) [Note 3]

Perhaps most importantly, the Board accepted the opponents’ argument that the property meets the criteria for determining cultural heritage value or interest in Ontario Regulation 9/06 under the OHA.

In terms of the applicable planning policies: probably because the legislative tests for severances and minor variances both include deference to the municipality’s Official Plan, the Board starts, not with the provincial policy context provided by the Provincial Policy Statement, but with the relevant OP policies.  [Note 4]

The Board cites the general heritage conservation policies in the OP, typical of those in municipal OPs in Ontario.  For example, one of the guiding principles for decision-making is: “heritage preservation to protect areas, landmarks and features which provide a physical link to the early development of Stratford and which contribute to its distinct character and sense of place.”  And, under the heading Tourism and Heritage: “Stratford’s built heritage, as evidenced by its remaining fine examples of Victorian architecture and other historic landmarks are [sic] considered critical to fostering tourism activity.”

With respect to infilling, the Board refers to the OP’s direction that projects be evaluated based on the guidelines adopted by the city in a 1991 Residential Intensification Study “to ensure that new development is compatible with and sensitive to existing development in the area.”  And, under the heading Infilling in Heritage Areas: “[W]here infilling is proposed … the inherent heritage qualities of the area or corridor will be retained, restored and ideally enhanced….”

Faced with the ultimate, inevitable argument that the benefits of intensification trump those of heritage, the Board is clear.

It is arguable that the proposal is a form of intensification contemplated by the City OP; however, that intensification, even if permitted, does not in my view, outweigh or override the very clear and compelling language of the City OP relating to heritage preservation and protection. … Neither the Severances nor the Requested Variances retain, restore or enhance the heritage character of the site in my estimation.

The Board concludes that the proposal does not conform with the city’s Official Plan.  And that would be that… except that the decision goes on to briefly consider the application of the Provincial Policy Statement even if this is “technically unnecessary.”

In something of a replay, intensification fares no better against heritage at the provincial policy level:

The Proponent argues that since the proposed lots provide for modest infilling and intensification… consistency with the PPS is established. I am not persuaded.

Section 2.6.1 of the PPS states, very decisively, that “Significant built heritage resources and significant cultural heritage landscapes shall be conserved”. …

In my view, the property, including the existing building and landscape setting constitutes, at the very least, a significant built heritage resource which is to be conserved. The proposal however, has, in my estimation, a somewhat awkward and disproportional lot configuration in an area with a preponderance of stately homes and large landscaped properties. As a result the Subject Parcel’s cultural, historical and heritage character is undermined. In my opinion, consistency with s. 2.6.1 of the PPS is not achieved.

So, yet another case of the Ontario Municipal Board siding with the heritage argument.  Just how many more examples of this do we need to finally persuade those out there (you know who you are) that the OMB is not an ogre when it comes to heritage concerns?

Some takeaways:

  • While they often seem like motherhood statements — nice to have but not counting for much — general heritage policies in OPs are important and potentially critical in preservation disputes.

  • Although it certainly makes the preservation argument stronger, a cultural heritage property does not have to be designated or even listed under the OHA to receive the benefit of OP heritage policies and section 2.6.1 of the Provincial Policy Statement; but you will have to demonstrate its cultural heritage value, using the criteria in the regulations.
  • Intensification as an argument for undermining or overwhelming heritage may be even less compelling in places like Stratford outside of the Greater Golden Horseshoe and other areas subject to provincial growth plans.

Two other (more esoteric) observations.  First, I think we see from this case yet more evidence that the Provincial Policy Statement’s definition of the term “significant” as applied to cultural heritage has become so broad as to be effectively redundant.  I defy you to coherently explain the difference between, say, a “built heritage resource” and a “significant built heritage resource.”
Second, in intensification versus heritage face-offs (and, granted, it is often not helpful to set them up as such), this and other recent decisions suggest an Achilles’ heel to intensification: the specific usually takes precedence over the general.  Meaning that the particular, site-specific (and irreplaceable) heritage resource should not be sacrificed to the general, less localized push for intensification, which can be satisfied in other ways — and other places.

Meanwhile, the fate of the White House is looking brighter.  Just days after the OMB decision was issued, the owner has withdrawn an application for a demolition permit (!) for the building, and apparently is moving ahead with a revised development plan for the property.

Note 1: The Official Plan, from 1993, has since been revised, although the new plan is awaiting provincial approval.  The "Heritage Area" covers almost all of the older part of the city.

Note 3: This is a little off our topic today, but I have to once again point out that this type of policy — not to designate without the okay of the owner — has been ruled illegal. See OHA+M from Nov. 6, 2015:

Note 4: See subsections 51(24) and 45(1) of the Planning Act.

Thursday, June 2, 2016

Stratford White House blues

Sticking with Stratford, our local Architectural Conservancy Ontario branch has just heard that the branch’s nomination of the city of Stratford for induction into the North America Railway Hall of Fame has been accepted.  Hooray!

The induction will happen in St. Thomas, Ontario — the home of the NARHF — later this month.

Stratford was nominated for its amazing railway history and heritage, touched on in last month’s post.  The Stratford Festival of its day, the railway, and the need to keep it running, really put Stratford on the map.

The induction of Stratford represents a great honour; but, just to be clear, the honour is for Stratford as a small “c” city, for the place, not for its municipal government.  It seems that, from the standpoint of preserving its railway (and other) heritage, Stratford city councils are — putting it kindly — not always at the forefront in terms of vision and commitment.

Remember the old story from last time about the Canadian Pacific Railway wanting to destroy the city’s parks system for a railway line?  The mayor and all but a few councillors were gung ho and had it been left to them….  But fortunately the question was put to Stratford residents who defeated it in a 1913 referendum.

Today, the biggest preservation challenge facing Stratford is the gigantic locomotive repair shops building on a huge city-owned site (known locally as the Cooper Site) adjacent to the downtown.  While the building moulders… and moulders… councillors and city administrators dither… and dither.  Yo, where’s the mojo to finally get something going here?

Another telling example of the current council’s interest (or lack thereof) in Stratford’s built heritage is the still-unfolding case of the White House.

Photo courtesy Scott Wishart, Stratford Beacon Herald

The White House: a very big old house on a highly visible corner lot on one of the most historic and beautiful streets in the city.  The current owners want to subdivide it creating three new lots squeezed in behind, beside, and partly in front of the grand porticoed front.  They say they can’t afford to maintain the house without infill development.

The 1866 property is neither designated under the OHA nor formally listed, although it does appear to be included on an old inventory.  And Heritage Stratford, the city’s appointed heritage committee, had prepared a draft designation by-law in 2005 (not coincidentally the last time the property was at risk).

It seems the 2005 designation never went forward because, like so many other Ontario municipalities, Stratford has a policy (unwritten) not to designate without the permission of the owner.  A policy that an Ontario court has ruled illegal. [Note 1]

When the applications for severance into four lots and accompanying minor variances went forward, the city’s committee of adjustment turned them down, partly on heritage grounds.  This despite the fact that city planning staff had recommended the scheme… making no mention of heritage (seriously!).

Understandably the owner appealed the decision to the Ontario Municipal Board.  And, wouldn’t you guess, subpoenaed the city’s planner as an expert witness to help make its case.  The city was faced with an awkward choice — whether to side with its own committee or with its staff.  At first it dithered.  But after a campaign by the neighbourhood Friends of the Stratford White House group urging the city to step up (which included an impassioned plea from renowned Stratford actor Seana McKenna), councillors decided the city would be represented at the OMB hearing and would retain independent legal and planning advice.

But… something happened on the way to the hearing, and in the end (after an in camera discussion) council backtracked, opting not to take part in the hearing one way or the other.  This left the neighbourhood group as the only party fighting the appeal.

Meantime, the owner, whose proposal for the property originally included retaining the house, applied for a demolition permit.  Yikes!  As they didn’t abandon the OMB appeal it seemed like a strategic move, part of a “plan B” in case the OMB decision did not go their way.

To its credit, Heritage Stratford responded very quickly, recommending that the city designate the property under Part IV of the Ontario Heritage Act.  (This uncharacteristic dexterity made possible by the groundwork done in 2005).  The recommendation went forward and a subcommittee of council narrowly passed a motion to designate.

Then — and this was the very week the Ontario Heritage Conference came to town! — council’s planning and heritage committee debated the designation recommendation.  It was painful to watch.

Perhaps because this council has so rarely considered heritage designations (yes, that’s a dig), there was confusion about how the designation process worked, what exactly was required and what the implications were for the property owner.  The staff tried to explain but just seemed to muddy things more.  One particular low point was when a motion was made to retain “independent” advice on the importance of the property, suggesting the opinion some councillors held of Heritage Stratford, their appointed heritage committee.  Ouch.  Fortunately that was defeated.

One councillor said, apparently proudly, that Stratford had never designated without the owner’s consent and “I don’t want to be part of the first council that does it.”  Another called it a “draconian measure.”  Oy vey.

No one bothered to explain that objections to designation, where they occur, are just part of the process; nor that the Conservation Review Board hears objections and prepares a report but that the municipal council makes the final decision on whether to designate or not.

No one apparently considered the court ruling that a practice of not designating without the owner’s consent is beyond a municipality’s powers under the OHA.  Nor the fact that other nearby places — like St. Marys — have designated property over an owner’s objections.

No one thought to raise the matter of incentives, such as grants or property tax relief, that might be made available to the property owner.  Nor that designation does not “freeze” a property and would allow for approval of a more sensitive redevelopment plan in future (and might actually hasten it).

The motion to designate was defeated 7-3.  Council later buried the matter without a word.

Again, one of Stratford’s most prominent and interesting old houses!  For a city that brands itself as a centre for culture and heritage it was an astonishing result.

Where does the story go from here?  I’m not sure, but one piece fell into place last week with the release of the OMB decision on the severance/minor variance issues.  Watch this space.

Note 1: Tremblay v. Lakeshore (Town)Ontario Divisional Court, November 2003. See OHA+M from Nov. 6, 2015: