At 150, a look back to 100

On the eve of the country’s and province’s 150th anniversary, a look back to two historic achievements associated with our last big national bash.

First, the founding of the Ontario Heritage Foundation as a centennial project in 1967.  The Foundation, now the Ontario Heritage Trust, the province’s lead heritage agency, came into being 50 years ago this month.

From Ontario Heritage Foundation History by William Kilbourne [1]:

William Cranston [chair of the Archaeological and Historic Sites Board, created in 1953] announced to the Board in October 1965 the exciting news that legislation for the establishment of an Ontario Heritage Foundation would soon be introduced by the government.  He was in a good position to know because he more than anyone else had been pushing his friends in the cabinet for just such a body as one of the most obvious and inexpensive ways of celebrating 1967.  In due course the Foundation was established by an Act of the Legislature, on June 2, 1967. [2]

And on January 18, 1968, the Minister of Tourism and Information, James Auld, a man who was at least as enthusiastic about heritage as his predecessor [Bryan Cathcart], and far more knowledgeable, announced the appointment of the Foundation’s board and the provision of a capital grant of half a million dollars.

“The primary purpose of the Ontario Heritage Foundation,” Auld announced, “was to be the preserver and restorer of historic structures, by purchase, rental, donation or other means.” He particularly wished “to inspire private donors.” In addition to the capital grant, Auld’s department would supply funds for office maintenance and staff salaries.  He spoke of supporting local initiatives, co-operation with other bodies which had similar objectives, and the possibility of covenants that might lead to some of the preserved properties producing revenue.  And he announced an agreement between the University of Toronto’s School of Architecture and the Ontario government for the financing of William Goulding’s inventory of pre-Confederation buildings in Ontario.  “Eventually it is hope to have a complete list which would grade these structures in relation to the architectural and historical significance.”

The first chairman of the O.H.F. was to be Frederick Wade, a retired insurance company executive who had been mayor of Renfrew, a past president of the National Parks Association and was currently vice-chairman of the Metro Toronto and Region Conservation Authority.  Other members included William Cranston, now also chairman of the Ontario Economic Council, and William Goulding, both of whom also remained on the Archaeological and Historic Sites Board; Stuart Carver, a London truck manufacturer and well known collector of Canadiana; Richard Dumbrille, postmaster of the village of Maitland in eastern Ontario who had been president of his local historical society and an Architectural Conservancy director [3]; and John Langdon, an investment dealer and former Financial Post editor with many business and cultural connections, the author of two books on Canadian silver.

Richard Apted who had been assistant at the A.H.S.B. before his promotion to the Public Archives was seconded for the time being to be secretary of the Foundation.  The staff was eventually to be headed up by Lawrence Ryan in the post of executive director.

All this was heartening news for the members of the A.H.S.B. who had waited so long in the wilderness for the creation of a body with more power and scope than they had. …

Dundurn Castle, Hamilton

The second big heritage project marking the province's centennial year was a building restoration, what William Kilbourne called “Ontario’s most successful single centennial project” — Dundurn Castle in Hamilton.

Hard to believe, but at the time the Dundurn property was actually in jeopardy!

Its salvation was almost entirely due to the personal commitment of a great ally of the A.H.S.B, Mayor Lloyd Jackson.  Before he could persuade Hamilton City Council to refurbish Dundurn, Jackson had to stop them from demolishing its gatehouse and garden wall, which were seen chiefly as the source of a nasty traffic problem.

Following the advice of Machiavelli to imitate both the lion and the fox, Jackson moved with boldness and cunning to get his way.  With his own private funds (his bakery had made him independently wealthy) he secretly hired [architect, professor and later The Ancestral Roof co-author and OHF board member] Anthony Adamson to draw up plans and estimates for Dundurn. When Jackson did go public he presented a sports complex in addition to Dundurn as the city’s centennial projects.  When the job was done Jackson could point to Dundurn as not only the Hamilton’s prime tourist attraction but also a museum of living social history, probably [one of] the finest and most tasteful restorations of its kind in North America. [4]

What will be the 2017 projects we'll look back on?

Happy Canada Day!

Note 1: Ontario Heritage Foundation History, unpublished manuscript, date unknown.

Note 2: This 1967 legislation was the Ontario Heritage Foundation Act, the predecessor of Part II of the present Ontario Heritage Act.

Note 3: In 1976 Richard Dumbrille was named a member of the Order of Canada for his endless efforts in preserving local history through the restoration of local architecture, almost entirely at his own expense. Richard, likely the last surviving founding member of the OHF/OHT, still lives in Maitland.

Richard Dumbrille

Changes to the OMB — meh

In case you missed it … on May 30, 2017 Minister of Municipal Affairs Bill Mauro introduced the government’s long-anticipated changes to the Ontario Municipal Board.  Bill 139, the Building Better Communities and Conserving Watersheds Act, 2017, combines OMB/planning system-related changes and changes to the Conservation Authorities Act, which has also been under review. [1]

The province says: “If passed, the proposed legislation would overhaul the province’s land use planning appeal system.”

Personally the overhaul leaves me underwhelmed.  (And that’s not a bad thing!) [2]

Let’s look at the proposed changes to the OMB and what this means for heritage.

Not to put too fine a point on it, much of what the government is proposing looks a lot like smoke and mirrors — changes that are designed to appease the mostly Greater Golden Horseshoe municipal politicians who rail against the (as they see it) unelected, anti-democratic, unaccountable, cumbersome, unfair, etc., etc. body that has had a major role in the province’s land use planning system since 1906.  But changes without a lot of substance.

Take the change of name — out with O-M-B, in with L-PAT, Local Planning Appeal Tribunal.  So imaginative.  For more than a decade Ontario municipalities have had the ability to set up a “local appeal body”, instead of the OMB, for certain local land use planning matters, although no municipality has so far done this. [3]  Well, let’s just make the OMB sound like it’s that kind of body — one concerned with your local issues.  Of course, it will still be a provincially-appointed board that hears appeals mainly on municipal planning issues.  So this is a symbolic gesture.

More important would be changes to the LPAT’s jurisdiction and powers vis-à-vis municipal decisions.

Here too there seems to be less than meets the eye.

First of all, there’s the deference the appeal body must give the decision under appeal.  Currently the legislation says the OMB, in making a decision “that relates to a planning matter”, “shall have regard to” the decision of the municipal council or approval authority.  As proposed, the shall-have-regard-to mandate stays, except instead of applying to decisions on any “planning matter” it applies to 14 specific types of decision, identified by a list of subsections of the Planning Act.  This does (yawn) make things more definitive. [4]

Moving on … a new limitation? threshold? is introduced for Official Plan and Official Plan Amendment appeals.  The Planning Act will say that an appeal may only be made on the basis that a part of the plan or OPA:

• is “inconsistent with” the Provincial Policy Statement, or
• “fails to conform with or conflicts with” a provincial plan, like the Niagara Escarpment Plan or the Plan for the Greater Golden Horseshoe, or
• “fails to conform” with an upper-tier plan where there is one. [5]
  

Would-be appellants must provide an explanation with their notice of appeal as to why they think this inconsistency/nonconformity threshold has been met.

This is reinforced by directing the LPAT to dismiss an appeal unless it “determines” that the case under appeal does not meet the required threshold.  In which case: The LPAT is directed to refuse to approve/uphold that part of the plan or OPA, and notify the municipality that it “is being given an opportunity to make a new decision in respect of the matter.”

So the municipal council will get a second chance to get it right (or wrong). If the new decision is appealed and the LPAT again determines that the threshold has not been met, at that point it can substitute its own decision.

The introduction of a clear-cut threshold for appeals may seem like a big deal, but it is really just doubling down on existing requirements.  Hello, do we not already have a policy-led planning system?  Section 3 of the Planning Act already says that planning decisions have to be consistent with the PPS.  Legislation establishing provincial plans already requires that municipal plans must conform to them.

Arguments about consistency with the PPS are the bread-and-butter of most OMB appeals.  Although the onus on the person making the appeal to show that the municipal decision is inconsistent or noncompliant will be more explicit, it’s hard to see how this will really change things (beyond making the process a little more cumbersome).

A sceptic might predict that the new requirements about consistency and conformity will not scare off a lot of would-be appellants — or the LPAT itself — from challenging municipal planning decisions.

Whatever you think of the idea, the innovation of giving municipalities a second kick at the can will probably spare some councils lost pride.  Better to modify your own decision than suffer the ignominy of having it overruled by a provincial tribunal!

As for heritage … rest assured that the amendments to the Ontario Heritage Act included in the bill are purely of the “consequential” kind — changing references to the OMB to LPAT and board to tribunal. So appeals to the OMB, er, LPAT, on heritage conservation districts, refusals to approve building demolition, etc., are all untouched.

And for heritage-related appeals under the Planning Act, well, there will still be the same arguments about consistency with the PPS and how to reconcile or find the right “balance” between the cultural heritage policies and the growth and intensification polices. [6]

La plus ça change…

Note 1: The bill is here.

Note 2: I was not a fan of some of the ideas the government floated in its discussion paper last year. See OHA+M from December 4, 2016: “The OMB under review (again)”. There are some good things in Bill 139 — the creation of the Local Planning Appeal Support Centre, for one — but the focus today is on the changes to the OMB’s jurisdiction and scope.

Note 3: See section 8.1 of the Planning Act.

Note 4: As mentioned in the December 4, 2016 post, the “have regard to” injunction seems superfluous if not disingenuous, since of course an appeal body would carefully consider any decision it was being asked to overrule.

Note 5: See subsection 6 (1) of Schedule 3 of Bill 139. With respect to appeals concerning zoning changes, subdivision plans, minor variances, consents and site plan control, there is no substantial change to the OMB/LPAT’s jurisdiction and powers, although appeals on the last three can be given to a local appeal body if municipalities choose to do so.

Note 6: From a heritage perspective there is one potentially worrisome thing in the bill’s new prohibition on appeals of development that supports the use of transit. See subsection 6 (6) of Schedule 3 of the bill. This could potentially take away a community’s appeal rights in situations where it can be argued that a proposed development projects supports transit infrastructure.

Wish list changes to the OHA, #2 … or, two-way demolition appeals?

Ka-boom!  Another heritage building bites the dust.

Or, in the case of the Gore Park buildings in Hamilton, are about to.  This because Hamilton city council earlier this year approved the demolition of these designated buildings … and despite an unprecedented on-line petition signed by over 1200 people asking them not to (and calling on culture minister Eleanor McMahon to intervene). [1]

What if even one of those people had appealed the council’s decision under the Ontario Heritage Act?  Of course, no such appeal right exists.

Could it?  We’ve been looking at possible changes to the OHA — and this is one of the biggies!

There is a strong argument that third parties — members of the public — should be able to appeal the decision of council to approve a demolition.

Since the overhaul of the OHA in 2006, the owner of designated property has had the right to appeal the municipality’s refusal to grant approval for demolition to the Ontario Municipal Board.  Previously there was no appeal … because council did not have the power to say no to demolition requests.  (Technically, it did, but a refusal only delayed the owner’s right to demolish for 180 days.)

With the strengthening of demolition controls — “no means no” — naturally came the question of appeal rights.  And to which provincial tribunal.  The Ontario Municipal Board and the Conservation Review Board were already in the OHA in other ways.  For a number of reasons it was decided to go with the OMB on demolition appeals. [2]

But as for extending the right of appeal to third parties aggrieved by the municipal decision to give the green light to demolition, it was felt this had not been adequately explored and discussed with stakeholders.  There was a sense that it might upset the development industry whose support for the legislation (tepid at best) was important for securing its passage.  Put another way, the provincial government in 2005 was attempting to juggle a number of competing interests and new public rights of appeal seemed a stretch too far.

In 2017 this deserves another look.

The starting point when analyzing policy changes of this sort is to see how comparable or analogous situations, if any, are handled in the same statute.

Let’s begin with the process for alterations to a designated building.  How does the OHA treat appeals in this case?  Here we get into the difference between a review and a binding appeal.

True to its name, the Conservation Review Board reviews municipal (and some other) decisions.  If you (the owner) don’t like the municipal decision on your alteration application you can “appeal” to the CRB for a hearing and report, with the municipality making the final decision. But only you can have the matter put to the CRB; third parties who don’t like the municipality’s decision (approving a major alteration, say, such as a façadism treatment) can’t.

So while the appeal body and the nature of the appeal (review versus binding appeal) differ, we can say that the relatively new process for demolition appeals is much like the longstanding process for alteration appeals.  No third party involvement.

But what if the demolition approval and appeal process is really more akin to another process in the OHA — de-designation.

For something that (fortunately) does not get invoked much, the Act actually has two procedures.  If you are a municipal council wanting to repeal your designation by-law, section 31 applies.  But if you are an owner wanting to have the designation removed from your property, you can use the application process in section 32.  In either case the usual purpose of de-designating a property is to pave the way for demolition.

Until 2005 the two de-designation sections worked differently.  If the initiative to remove the designation was council’s (section 31), things proceeded very much like the standard designation process in section 29.  Council would have to consult with its municipal heritage committee, where there was one, and give notice to the owner and to the public (and to the Ontario Heritage Trust).  The owner or any person could object to the designation removal, resulting in a referral of the matter to the CRB.

However, if the owner initiated the removal of the designation (section 32), there was no public notice requirement and the “appeal” process was much like the alteration approval process we looked at above.  If the municipality said no, the owner could have the matter referred to the CRB for a hearing, etc.  But if the municipality agreed to remove the designation, nobody else could object.

It was all a bit confusing.  For years certain culture ministry staff would respond to local questions about de-designation procedure, where it looked like the designation (and the building) might be at risk, by deliberately steering people toward the section 31 process.  Why?  Because unlike the section 32 process it had the virtue of giving members of the community the opportunity to object to the designation repeal and to make arguments for keeping the designation in an open hearing in the full public spotlight.  (And in the rare de-designation cases that came before it, the CRB almost always recommended against repeal, which had a big persuasive effect on the council.)

This “loophole” was closed with the 2005 changes to the OHA.  Now if the owner applies under section 32 to remove the designation, and the municipality refuses, the owner can still refer the matter to the CRB — but if the municipality okays the application to de-designate, public notice must now be given and anyone can have the issue referred for a hearing.

So how does this help us with our question about public appeal rights from demolition approvals?

Well, if demolition is more like de-designation than alteration, with comparable public and private interests at play, one could argue it should be treated in a similar way.  Meaning that there should be a public right to object to a decision to approve the demolition of a designated structure.

Support for this argument is found in another section of the Act.  Subsection 34.3 (1) says:

The council of a municipality shall pass a by-law to repeal a by-law or the part thereof designating a property under section 29 if the owner of the property has applied in writing to the council for consent to the demolition or removal of a building or structure on the property and,
(a) the council consents to the application …; or
(b) the Board has ordered that the municipality give its consent ….

This provision essentially mandates de-designation, in whole or in part, where the municipality consents to demolition.  In other words, if you can get approval to demolish the heritage building on the property that was the reason for the designation in the first place, the designation has to be repealed.

If demolition effectively means de-designation, and the de-designation process entails a public right to object, then shouldn’t …?

Convincing?

Note 1: For the sorry story of the Gore Park buildings see OHA+M from January 9, 2017: “For Hamilton’s Gore it’s crunch time!” The petition can be found here: 

https://www.change.org/p/eleanor-mcmahon-intervene-to-halt-demolition-of-heritage-buildings-on-gore-park-hamilton

Note 2: There's more on this in OHA+M from February 8, 2017: “Alteration, demolition — and partial demolition?” (about nine paragraphs down)