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: http://www.icomos.org/charters/xian-declaration.pdf

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;
http://www.omb.gov.on.ca/e%2Ddecisions/pl141140%2Ddec%2D23%2D2015.pdf

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. 

"Cultural heritage" and the fuss with definitions

I feel like this should come with an advisory: 

***The following post is intended for mature, if geeky and/or masochistic, audiences.  May contain passages that are pedantic, exasperating, or numbingly dull.  Reader discretion is advised.***

Don’t say you weren’t warned!

Today we delve into definitions, their fortes and foibles, with the spotlight on “cultural heritage.”

As we saw last time, in 2006 Ontario put in place two regulations under the Ontario Heritage Act: O. Reg. 9/06, “Criteria For Determining Cultural Heritage Value Or Interest”, and O. Reg. 10/06, “Criteria for Determining Cultural Heritage Value Or Interest Of Provincial Significance.”

These criteria were designed for the purpose of designation under Part IV of the OHA: to be designated a property must meet the criteria.  But the use and influence of the criteria has become far greater.  Once you have a legislated test for “cultural heritage value or interest” (CHVI) for one purpose (individual designation), it is hard to argue that the same words used elsewhere should not be interpreted the same way.

So even to be listed — included on the municipal register but not designated — a property effectively must meet the criteria. [Note 1]  Similarly with heritage conservation districts under Part V.  The requirement that an HCD have a plan, and that the plan include “a statement explaining the cultural heritage value or interest” of the district, essentially means the HCD must have CHVI as per the criteria. [Note 2]

The CHVI criteria are even operative beyond the mechanisms of the OHA.  They get picked up in the latest (2014) version of the Provincial Policy Statement under the Planning Act.  The cultural heritage policies in the PPS focus on conservation of “significant” resources — built heritage, cultural heritage landscapes, archaeological — and it’s the CHVI terminology and criteria that are invoked in the definition of “significant”: 

…(e) in regard to cultural heritage and archaeology, resources that have been determined to have cultural heritage value or interest for the important contribution they make to our understanding of the history of a place, an event, or a people.

Criteria for determining significance for the resources identified in sections (c)-(e) are recommended by the Province, but municipal approaches that achieve or exceed the same objective may also be used. (underlining added)  [Note 3]

All this to show that the criteria in the 2006 regulations now essentially define cultural heritage value or interest for purposes of our heritage protection and land use planning regimes.  Put another way, they define what is heritage (and what is provincially significant heritage) and what is not.  To talk of heritage resources that do not meet the criteria in O. Reg. 9/06 has become a contradiction in terms.

Defining cultural heritage in this way has helped solve a long-time problem.  From its inception in 1975 there was no definition of heritage in the opening section of the OHA.  There is only a minimal definition of “property” at the beginning of each of the major parts of the Act telling you whether property means both real and personal property (Part II), or only real property, and whether real property includes buildings and structures (Parts IV and V) or not (Part VI).

In the original OHA, designation of property under Part IV was based on “architectural or historical value or interest” — period.  Over the years there were constant calls for a better definition of what could be designated, and the culture ministry struggled with how to respond.

Drafts of proposed OHA changes from the 1990s included definitions of real/immovable and personal/movable property (and in one case even intangibles!).  These were definitions of the extensional kind — attempting to list every kind of property that the Act covered; so, for example… buildings, bridges, battlegrounds, cemeteries and other burial sites, gardens, parks, ruins, archaeological sites, landscapes, streetscapes, trees and other natural features (at least those with a cultural component), memorials, engineering works, etc., etc.  And, of course, because of the risk of leaving something out the definitions all began with “including but not limited to.”

As one who was part of it I can tell you frankly it was a maddening exercise — especially as there was no legal need for such a cumbersome laundry list in legislation.  The motivation was really advisory or even advocacy, to try to ensure municipalities knew to protect heritage property in all its forms.

In 2002 there were finally some significant amendments made to the OHA.  One of these introduced the by-then accepted term “cultural heritage” in place of “architectural or historical” in describing the kind of “value or interest” of designated property.  Another change gave Cabinet the power to make regulations “defining ‘archaeological fieldwork’, ‘archaeological site’, ‘artifact’, ‘cultural heritage’ and ‘marine archaeological site’ for the purposes of this Act and the regulations.”

Anything jump out at you there?  Rather than define “cultural heritage” in the Act itself, it seemed a better idea to define it in regulation — where it could be more easily changed as needed.  But this was just a vestige of the old list-it-all thinking.  The best idea was not to define it at all; while the archaeology definitions were soon put in place, a definition of “cultural heritage” was never developed.

The difficulty was the preoccupation with an “extensional”/list kind of definition when what was needed was an “intensional” definition — one that tries to capture the essence of a term.  What is the essence of heritage?  Answer: things from the past that have value to a community.  What kind of value? (Now we’re getting somewhere.)

What Ontario finally got, with the 2005 OHA changes and the 2006 regulations, was a legislative description of cultural heritage value or interest.  This amounts to a functional definition — of the intensional kind — of cultural heritage, at least in terms of real/immovable property.

Not that we don’t need good definitions of the other kind.  But extensional/list definitions are usually best put in policy or advisory documents where longer and looser definitions are appropriate.  And where they can be routinely reviewed and updated.

Documents like the Provincial Policy Statement and the Ontario Heritage Tool Kit! [Note 4]

Note 1: Sub-section 27 (1.2) says the municipal heritage register “may include property that has not been designated … but that the council of the municipality believes to be of cultural heritage value or interest…”

Note 2:  Clause 41.1 (5)(b).  Again, in the case of government property: although sites owned by the province cannot be designated under Parts IV and V, they are subject to Part III.1, which provides for the creation of standards and guidelines for the conservation of properties “that have cultural heritage value or interest.”  The Standards & Guidelines for the Conservation of Provincial Heritage Properties approved in 2010 rely completely on the CHVI criteria in the regulations for determining whether a property is “heritage” and its level of significance.

Note 3: PPS definitions section, p. 49.  As the PPS has evolved, there is not now (if there ever was) any coherent difference between, say, "built heritage resources" and "significant built heritage resources." (I just assume the Ministry of Tourism, Culture and Sport is well aware of this, and the Ministry of Municipal Affairs and Housing isn't.)

Note 4: Consider the PPS definition of “cultural heritage landscape”, which combines both intensional and extensional definitions:

Cultural heritage landscape: means a defined geographical area that may have been modified by human activity and is identified as having cultural heritage value or interest by a community, including an Aboriginal community. The area may involve features such as structures, spaces, archaeological sites or natural elements that are valued together for their interrelationship, meaning or association. Examples may include, but are not limited to, heritage conservation districts designated under the Ontario Heritage Act; villages, parks, gardens, battlefields, mainstreets and neighbourhoods, cemeteries, trailways, viewsheds, natural areas and industrial complexes of heritage significance; and areas recognized by federal or international designation authorities (e.g. a National Historic Site or District designation, or a UNESCO World Heritage Site).

The test for designation — Regulations 9/06 and 10/06

Happy 2016!

Another year, another heritage policy anniversary.  It was 10 years ago (already!) that Ontario got two new regulations on cultural heritage significance: Ontario Regulation 9/06 and Ontario Regulation 10/06, usually known as O. Reg. 9/06 and O. Reg. 10/06.

Among the many changes to the OHA in 2005 was the introduction of significance criteria for designation — that is, criteria on cultural heritage value or interest that would have to be met for a property to be designated by municipal councils or the Minister of Tourism, Culture and Sport.  The criteria themselves did not appear in the Act; instead the Act gave the Lieutenant Governor in Council, aka Cabinet, the power to make regulations prescribing the criteria.  Following consultations with stakeholders in mid-late 2005, the culture ministry drew up the regulations, which were approved by Cabinet in January 2006.

O. Reg. 9/06 “Criteria For Determining Cultural Heritage Value Or Interest” provides the criteria that municipalities must use.  O. Reg. 10/06 “Criteria For Determining Cultural Heritage Value Or Interest Of Provincial Significance” provides those for use in provincial designation. [Note 1]

The purpose of the criteria was not to make designations harder.  Rather, there was a need, after three decades of diverse designation experience at the local level, to bring a more consistent approach to the designation of heritage property.  With new powers to prohibit demolition the consequences of designation were drastically different, so there was also more at stake.  Designations had to be well-supported, statements of cultural heritage value clear and thorough and descriptions of heritage attributes exhaustive. The goal was strong and defensible designation by-laws.

What about stakeholders?  The development industry in particular was concerned that tougher demolition controls would not be applied to protect buildings with flimsy heritage credentials.  Legislated criteria for designation provided some reassurance.  Municipalities for their part were not averse to provincial direction on eligibility for designation and how to capture heritage values.  For many municipalities the new criteria represented a codification of criteria they were already using.

In fact the introduction of designation criteria can be seen as part of a broader move to standardize and codify processes for the identification and preservation of cultural heritage.  What had been developed and fine-tuned over time as best practices used by heritage professionals now gained in stature and official recognition as governments adopted or enacted this professional praxis.  The Standards for the Conservation of Historic Places in Canada and Ontario’s Standards & Guidelines for Provincial Heritage Properties are other examples of this.

The best thing about the 9/06 criteria, I think, is that they have encouraged Ontario communities to better understand, recognize and protect designated property.  Evaluation of a property using the criteria essentially compels a comprehensive consideration of a wide range of potential heritage values.  Where previously it might have been enough for a LACAC or municipal heritage committee to find that a building, say, was a great example of Gothic Revival — and to stop there — they now have to go through a more rigorous analysis, canvassing no less than nine criteria!  [Note 2]

The introduction of the regulations has had another important result.  The Conservation Review Board now also has clearer guidance in carrying out its mandate as provincial overseer of the designation process.  Before 2006: in the face of an objection to a proposed designation the Board, as today, was charged with holding a hearing and making recommendations “as to whether or not the property should be designated” — but with no legislative direction on what to consider in performing its review of the proposed designation.

Providing a kind of “test” for designations has meant that the CRB has had to interpret and apply the criteria in the cases before it to determine if the statutory test has been met or not.  My observation is that the Board has been undertaking this scrutiny quite scrupulously — and is more likely than previously to recommend against designations (on the basis that the criteria have not been met).

Which leads me to contemplate a fascinating possible scenario (okay, maybe only for policy nerds).  Town X decides to designate a building.  The owner objects.  The CRB hears the case and produces its report concluding the 9/06 criteria are not met and therefore recommending against designation.  Town X considers the report and then designates the property anyway (recall that the OHA allows this and says that the council’s decision is “final”).  The unhappy owner then takes Town X to court, asking that the designation be struck down.  The owner submits that Town X exceeded its powers by designating the property without satisfying the OHA’s precondition to a valid designation, namely meeting the 9/06 criteria.

What happens?  The owner will surely argue that the CRB is the “expert” on whether the criteria are met or not and its findings should be treated as definitive.  Town X will have to argue that somehow the Board got it wrong.  The court will be invited to second-guess the CRB — effectively a kind of judicial review of the Board’s findings.  Unless there is something really egregious about those findings or the Board’s process the court will be hard-pressed not to conclude (a) the OHA test has not been met and thus (b) Town X’s designation is invalid.

Can’t wait for a real case like this to come along, if it ever does.  If it does play out as I think it would, the net result would be to make the CRB’s “recommendations” on designation much stronger and more like final decisions.

Meanwhile… after a decade the 9/06 criteria seem to be holding up quite well.  This despite occasional grumbling that they are “too loose” or “too general.”  To which I say, “comes with the territory.”  Not that there mightn’t be room for improvement.  A review of the criteria should be done at some point if only to bring them into line with current best professional practice.

I’ve written about the 10/06 criteria before [Note 3].  Interesting that, while they were designed for one purpose — as the eligibility test for provincial designation (currently not in use) — the 10/06 criteria, along with the 9/06 ones, are widely employed in Ontario for another purpose — the evaluation of provincially owned property as part of the implementation of the Standards & Guidelines for Provincial Heritage Properties.

Note 1:  O. Reg. 9/06: https://www.ontario.ca/laws/regulation/060009; O. Reg. 10/06: https://www.ontario.ca/laws/regulation/060010.

Note 2:  The three criteria in O. Reg. 9/06 — design or physical value, historic or associative value and contextual value — each have three sub-criteria.

Note 3:  See “Provincial significance and Regulation 10/06” from March 12, 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
   

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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.

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.

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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.

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.