Heritage easements 301 — The OHF goes natural, and municipalities get in the game

By the early 1980s the Ontario Heritage Foundation’s easements program was well-established.  But its scope, like the properties the Foundation owned and its other programs, was pretty much confined to cultural heritage.  This was about to change.

From 1975 the Foundation has had a broad mandate for the “conservation, protection and preservation of the heritage of Ontario.” “Heritage” was not defined; although, with respect to its “trust” objectives, the OHF was given powers to acquire, hold, manage, etc. property of “historical, architectural, archaeological, recreational, aesthetic, and scenic interest.” [Note 1] The power to acquire easements — a form of property — was not otherwise limited.

With the encouragement and support of senior management at the then Ministries of Natural Resources and Culture and Recreation, OHF board chair John White and other new board members decided it was time for the Foundation to expand activities into the natural resource field. [Note 2]

Probabaly the key reason for this move was that the Foundation was the sole provincial agency with the power to acquire heritage easements.

Seizing on the words "recreational" and "scenic" in its legislation — and maybe stretching them a little?— the Foundation embarked on its first forays into natural heritage. And the first natural heritage easement soon followed— the Misery Bay property, a 120 hectare (300 acre) forested wetland on Manitoulin Island bordering Misery Bay Provincial Park. The easement was registered in November 1983.

Shoreline, Misery Bay

* * * * *

While the OHF pursued its heritage easements program with gusto — first on the cultural side, then on the natural side as well — at the municipal level things were very slow to develop.  While local municipalities had been given powers to acquire easements on property of “historical or architectural” importance under section 37 of the OHA, that didn’t mean they knew what to do with them. [Note 3]

Largely this was because municipalities also had designation powers — powers they had actually sought! (And, tellingly in terms of the provincial enthusiasm for easements, powers the province itself didn’t have.)

But a heritage designation, as people soon came to realize, was not as strong as a heritage easement, particularly with respect to demolition.  Until the 2005 changes to the OHA, designation offered only temporary demolition controls.  Even now, a municipality’s refusal to approve an owner’s request to demolish can be overridden by the Ontario Municipal Board.

So easements provided a further, practically iron-clad protection against demolition.

Unlike a regulatory, designation approach, however, there needed to be a lever to compel… er, entice the signing of an easement agreement.  And for a long time municipalities did not make use of the tools they had.

The first municipal easements were mostly the result of provincial (OHF) grants for preservation projects: in cases of built heritage properties not considered to have provincial significance and warrant a Foundation easement, the grant was made conditional on both municipal designation and a municipal easement.  Not surprisingly, municipalities needed the province’s help with satisfying the unfamiliar easement requirement — and in developing their easement agreements they relied almost to the letter on the Foundation’s prototype agreement.

A big boost to municipal easement activity came in 2001, again because of provincial policy.  The rules for the new Heritage Property Tax Relief Program, which incorporated a provincial financial contribution, included requirements for designation and a heritage easement or similar agreement.

The City of Toronto, a leading advocate for the HPTR program, had been a relatively early adopter of heritage easements.  In 1980, following two years of work, the former Toronto Historical Board developed a procedure for municipal heritage easement agreements.  The first Toronto easements were signed that year.  Since then the city’s easements program has really taken off, with Toronto entering into hundreds of built heritage easements, usually as a condition of planning and other development approvals.  Other larger municipalities have followed suit.

A 1980 municipal easement protects the House of Industry on Elm Street, Toronto

Unfortunately for those of us who like hard numbers, just how many (and which) municipalities have acquired easements — and how many — is hard to get a handle on.  The OHA requires that information on designations be provided to the Ontario Heritage Trust, but there is no such requirement for easements.  [Note 5]

Next time: Who else holds heritage easements in Ontario?

Note 1: Interestingly the word “heritage” did not appear in the OHF’s original 1967 Act, except n the name of the Foundation. “Archeological” was added to the list of types of property in the 1975 OHA; “natural” was finally added only in 2005.

Note 2: Chief among these was G.H.U. (Terk) Bayly. Terk was a former deputy minister of the old Department of Lands and Forests, predecessor of the Ministry of Natural Resources, and had served as Secretary of Cabinet. He succeeded John White as chair of the Foundation in 1986. For more on the genesis of the Foundation’s role in provincial efforts to protect natural areas see Gerald Killan’s Protected Places: A History of Ontario's Provincial Parks System (Queen’s Printer, 1993), especially pages 313-315.

Note 3: In section 37, as in the designation sections of the Act, the old “architectural or historical” terminology has been replaced with “cultural heritage.”

Note 4: See my 2015 OHA+M post on heritage property tax relief:

https://danschneiderheritage.blogspot.ca/2015/03/heritage-property-tax-relief.html

Note 5: One estimate puts the number of municipal easement “programs” at around 50, but I wouldn’t even hazard a guess at the total number of municipal easements. By contrast, thanks to the Ontario Heritage Trust, we do know the current number of OHT easements: 260.  And how they break down by type:

• Built heritage: 186
• Natural heritage: 52
• Archaeological: 6
• Bruce Trail: 15
• Hybrid: 1 (Ruthven, near Cayuga)

Heritage easements 201 — New easements, and an old covenant

One of the early heritage easements in Ontario protects Victoria Hall in Cobourg.

Portico of Victoria Hall, Cobourg

The parties to this agreement, which runs in perpetuity (forever or, less dramatically, indefinitely), are the Ontario Heritage Foundation, now the Ontario Heritage Trust, and the Town of Cobourg, the owner of Victoria Hall.

The easement goes back to 1979, four years after the OHF gained the power to acquire heritage easements in the then-new Ontario Heritage Act.  The agreement was signed as a condition of a grant by the Foundation for repair and restoration work.  And Victoria Hall needed a lot of that in the 1970s.  The provincial grant to the project was huge — some $400,000!  [Note 1]

The OHF’s statutory easements were not, interestingly, the first effort in the province to protect heritage property through private, contractual means.  That honour goes, I believe, to the Architectural Conservancy of Ontario — and the property in question was none other than the Barnum House.

Barnum House, Grafton

As many will know, preservation of the 1819 Barnum House, outside Grafton, and just 10 or so kilometres east of Victoria Hall, was the driving force behind the creation of the Conservancy in 1933.  The ACO acquired and restored the house but by 1958 its ownership and operation proved too much for the struggling little group (I’m speculating here) and the Conservancy transferred the property to the local Township of Haldimand.  The township managed to continue to run Barnum House as a museum, but again the needs of one of Ontario’s most iconic early buildings far exceeded local means.  The future of the property was finally secured by transfer of ownership to the Ontario Heritage Foundation in 1982.

But while willing to give up the house the ACO was not anxious to relinquish all control.  And so (at Eric Arthur’s instigation?) a restrictive covenant was attached to the 1958 deed.  The covenant stipulated that changes to the house could not be made without the Conservancy’s permission.

This covenant was still there when the OHF came along in the early 1980s.

Now, if you read “Heritage Easements 101” from last time, you’ll know that a covenant like this was not valid and could not be enforced against a future owner.  For one thing the ACO did not own any adjoining lands that could benefit from the covenant.

But the OHF did not want any loose ends, including any appearance that the ACO might be in a position to constrain what the Foundation could do to the Barnum House.

And so it happened that I as a new staff member was dispatched to talk to the ACO board… and to talk them into “lifting” their restrictive covenant on the property.  When looking back on this, I cringe a little at my “I’m from the government and I’m here to help you” attitude.  They didn’t exactly welcome the idea with open arms; but after some hesitation the ACO did agree to release any legal interest they may have had in the property.  The transfer was concluded soon after.

The St. Lawrence Block, Port Hope, is protected by a 40 year-old OHT easement (signed July 7, 1976)

Back to statutory easements…  With the passage of the OHA and based in large part on American precedents, staff, board members and lawyers of the Ontario Heritage Foundation put together Ontario’s first template easement agreement.  [Note 2]  This template was followed in the Victoria Hall and other early easements — and indeed, with periodic revisions and updates, became the prototype for all of the many OHF/OHT built heritage easements since. [Note 3]

From the start key provisions of the easement agreement have included:

• prohibition of demolition of the structure and alteration of listed heritage features, without prior approval
  
• prohibition on changes to the property generally, without prior approval
  
• requirement to maintain the structure
  
• requirement to insure the structure
  
• requirement to rebuild in the event of significant damage
  
• no restrictions on sale or use
  
• right to inspect the property upon written notice to the owner
  
• right of entry to the property to rebuild, or to remedy a breach of the agreement, where the owner fails to do do.
  

As we learned last time, some of these (the first two) would be considered “negative” provisions — requiring the owner not to do something — and some “positive” — requiring the owner to do things and incur the resulting expense.  Most could be considered to be “covenants” — in the sense of promises to do/not so something — and a few (the last two) “easements” — in the original sense of permitting access to and activity on the owner’s property for limited purposes.

But with statutory easements none of these old distinctions matter any more.  [Note 4]

The first heritage easement signed in Ontario (June 22, 1976) protects the Newburgh Academy in Newburgh

Note 1: Until the 2005 overhaul of the Ontario Heritage Act, the Foundation/Trust needed the Minister’s approval for its restoration grants. I have it on good authority that in the case of the early and enormous Victoria Hall grant, and presumably at the Minister’s behest, the provincial contribution was actually approved in Cabinet. To this day the Trust requires  Minister’s approval for property acquisition and disposition, including easement interests, but this is a formality.

Note 2: According to my source, the architects of both the heritage easement provisions in the OHA and the template easement agreement were Bert Lawrence and Brock Grant. Bert Lawrence, a former provincial cabinet minister under Premier William Davis, became the first chair of the beefed-up Ontario Heritage Foundation in 1975. Brock Grant was the esteemed ministry lawyer who advised the Foundation’s board and staff for many years.

Note 3: The OHT currently holds 186 built heritage easements.

Note 4: The statutory protective agreement, referred to as simply an “easement or covenant” in the OHA, came to be called a heritage easement or conservation easement probably because of the traditional easement-like provisions they included (even if these were more minor in nature) and because covenants typically were part of another agreement (a deed) rather than stand-alone. Also because that’s what the American precedents were called.

Heritage easements 101 — Easements come to Ontario

Writing about the Rockwood Academy a few posts back I mentioned my first job with the province — one with responsibility for the pioneering provincial heritage easements program.

Before that, in 1979, I spent a summer with the Stratford Local Architectural Conservation Advisory Committee (LACAC).  At some point my boss, the redoubtable city/county archivist Jim Anderson, brought to my attention a bill to amend the Ontario Heritage Act.

The amendment concerned a minor change to the easement provisions of the Act — this was the very first amendment to the OHA since its passage four years before. [Note 1]

It was also the first time I’d heard of heritage easements.

Easements are one of our two principal protection mechanisms (designation of course is the other).  They’ve been around for 40 years now, but where did they come from?

Unlike many other parts of the 1975 OHA, the heritage easement powers were an innovation without antecedents from Ontario or other provinces.  They were inspired by and based on precedents from south of the border, where easements for preservation purposes go back at least to the late 1940s.  Being voluntary agreements to protect (usually) private property, easements were an approach particularly suited to the American perspective and experience, where government regulation of private property for public benefit is more suspect than in Canada. [Note 2]

Historically, easements — also called restrictive covenants — evolved as a type of contract between two parties with respect to the use of land.  Say Party A wants some access or control over the property of Party B (typically a neighbour).  Party A could of course offer to buy the property.  But for a number of reasons an outright purchase might not be feasible or even desirable.

Instead Party A could try to negotiate the acquisition of an easement, one giving Party A the desired access or control over the property of Party B.  And not just Party B, but anyone who acquired the property after them: the easement is intended to outlast a particular individual’s ownership and “run with the land.”

Over the centuries the courts developed rules to prevent abuses. For the easement to run with the land and be legally enforceable against later owners it had to meet strict requirements:

• The purchaser or new owner of Party B’s property had to have notice of the easement
• The easement had to benefit Party A’s (adjoining or “appurtenant”) property in some way — by providing river access, for example, or an unobstructed view
• The controls or obligations the easement imposes on Party B could not include a positive burden (requiring expenditure to meet it, like maintaining a bridge), but only negative burdens (requiring Party B not to do something, like obstruct Party A’s view by constructing buildings or planting trees).

(The parcel of land that benefits from the easement — Party A’s property — is sometimes called the “dominant tenement”; the “servient tenement” is the land — Party B’s property — that is subject to or encumbered by the easement.)

But if Party A is not a neighbour or does not even own property, there can be no valid easement.

This is where statutory easements come in — laws are passed to get rid of the old common law limitations and provide greater flexibility and scope.  But only for certain parties and for certain purposes!

Take electricity production and distribution, for instance.  The Electricity Act, 1998 says that “an easement in favour of a generator, transmitter or distributor for the purpose of generation, transmission or distribution does not have to be appurtenant or annexed to or for the benefit of any specific parcel of land to be valid.” [Note 3]

Likewise with heritage conservation. Section 22 of the OHA says:

(1) Any easement or covenant entered into by the [Ontario Heritage] Trust may be registered against the real property affected in the proper land registry office.

(2) Where an easement or covenant is registered against real property under subsection (1), such easement or covenant shall run with the real property and the Trust may enforce such easement or covenant, whether positive or negative in nature, against the owner or any subsequent owners of the real property and the Trust may enforce such easement or covenant even where it owns no other land which would be accommodated or benefited by such easement or covenant. (emphasis added)
…

You can see how subsection 2 keeps the old requirement of notice (by requiring registration on title), but lifts the other two limitations: the taboo on “positive” burdens and the requirement of owning benefiting land. [Note 4]

Section 37 of the Act — giving local municipalities the ability to acquire statutory easements — has similar wording. 

But not identical: there is an important difference between the provincial (OHT) and municipal easement powers.  While municipalities may acquire easements “for the conservation of property of cultural heritage value or interest”, the scope of the provincial power is broader — essentially qualified only by the Trust’s broad mandate for “the conservation, protection and preservation of the heritage of Ontario.”  In other words, the Trust easement power extends beyond cultural heritage.

We’ll see next time what this has meant for the evolution of provincial and municipal easement programs.

Note 1: The amendment anticipated a potential conflict between the controls provided by an easement and a heritage designation on the same property. Identical subsections 22(4) and 37(5) were added; the former now says: “Where there is a conflict between an easement or covenant entered into by the Trust and section 33 or 34, the easement or covenant shall prevail.”

Note 2: Part of this is the Fifth Amendment to the U.S. Constitution, added in 1791, which includes a prohibition on government taking private property for public use without “just compensation.” There is no comparable provision in the Constitution of Canada.

Note 3: See section 42.1.

Note 4: When the Ontario Heritage Foundation (as the Trust was then known) began signing easement agreements on properties around Ontario and presenting them for registration, the reaction of the local land registrar was frequently, what’s this? Quoting chapter and verse from section 22 was usually persuasive.

Conservation authorities meet cultural heritage

Quick question (okay, two): Who is the biggest landowner in Ontario?  Who is the second?

The provincial government owns by far the most land in Ontario. The province’s 36 conservation authorities are, collectively, the second largest owner.

The 1842 house at the John R. Park Homestead near Kingsville, a property of the Essex Region Conservation Authority

Like it or not, all this CA-owned property comes with a lot of cultural heritage. Because the watersheds CAs manage historically provided for sustenance, transportation and power for industry and also established patterns of settlement, these areas are inevitably associated with cultural heritage resources. Mills, bridges, dams, farmhouses and other buildings (especially those located on floodplains), cultural heritage landscapes, the list goes on.

The impact of CAs extends not just to the property they own but, because of the regulations they make, to private property too.

To step back for a minute… Ontario’s conservation authorities are unique creatures — government agencies somewhat awkwardly positioned between the provincial and the municipal levels.  Section 20 of the The Conservation Authorities Act sets out a CA’s broad mandate:

The objects of an authority are to establish and undertake, in the area over which it has jurisdiction, a program designed to further the conservation, restoration, development and management of natural resources other than gas, oil, coal and minerals.

Within their watershed boundaries, CAs are the bodies considered to have prime responsibility for water management, in terms of water quantity and related hazards. To carry out this responsibility, authorities have two types of powers — administrative and regulatory. [Note 1]

Administrative powers are extensive and include such things as:

• studying the watershed and determining a program whereby the natural resources of the watershed are conserved, restored, developed and managed
• acquiring by purchase, lease or otherwise and expropriating any land that the CA may require, and selling, leasing or otherwise disposing of land
• erecting works and structures and creating reservoirs by the construction of dams
• altering the course of any river, canal, or stream
• using lands that are owned or controlled by the authority for any purposes (not inconsistent with its mandate) it considers proper
• using lands owned or controlled by the authority for park or other recreational purposes, and erecting facilities for such purposes
• collaborating and entering into agreements with other government agencies, municipal councils, organizations and private owners.

As to regulatory powers — subject to the approval of the Minister of Natural Resources and Forestry, CAs can make regulations, including regulations for:

• prohibiting or regulating or requiring the permission of the authority for changing or interfering with river/stream channels or wetlands

• prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, pollution or the conservation of land may be affected by the development.

CAs’ regulations control activities in river and stream valleys, waterfronts, and wetlands. While development regulations do not technically control land use — this is a municipal responsibility after all [Note 2] — they can have major impacts on what is done, or not done, with property.  Including, for our purposes, the conservation and adaptive reuse of heritage structures.

Now, when it comes to cultural heritage, conservation authorities’ track record is decidedly mixed.

There are many examples of CAs playing an important role in the conservation of cultural heritage assets. CAs have been part of success stories in identifying, preserving and repurposing old mills, ruins, and farmhouses, among other cultural resources.  These stories have often involved CAs partnering or collaborating with local heritage organizations.

Proctor House Museum, Brighton

Take the saving and restoration of the Proctor House in Brighton by the Lower Trent Region Conservation Authority. [Note 3]

Rockwood mill ruins

Or the stabilization of the woollen mill ruins in Rockwood by the Grand River Conservation Authority. [Note 4]

But there are many, many instances where a conservation outcome was not the case…

Thamesford Mill, 2008   Photo courtesy Sarah Hill

Thamesford Mill partly demolished, 2012  Photo courtesy Sarah Hill

The mill on the Middle Thames in Thamesford was recently demolished by its owners, allegedly because the Upper Thames River Conservation Authority was too strict and wouldn’t let them redevelop the property and adaptively reuse the mill building. [Note 5]

Motherwell General Store

Then there is the old Motherwell General Store north of St. Marys, where an apparent case of demolition-by-neglect by the same CA is underway. [Note 6]

Indeed there is an overall perception in the heritage community that the management of cultural resources by CAs — while improving — is far from satisfactory, with the result that these resources are ignored, neglected and, all too frequently, lost or destroyed.  

The root of the problem is that authorities generally do not see cultural heritage conservation as part of their mandate.  Look at section 20 of their legislation: the exclusive focus is on “natural resources.”  In fact the word “cultural” appears nowhere in the Conservation Authorities Act.  CAs often do not recognize historic buildings and other cultural features as valuable resources worthy of conservation, do not understand how to approach their conservation and are not equipped to be good stewards.

Don’t rely on the town or township to come to the rescue.  While there are numerous examples of the heritage designation of CA-owned properties by local municipalities, it is unrealistic to expect that municipal councils will proactively identify and protect cultural heritage resources in the hands of authorities.  Most municipalities especially in rural areas will not be in a hurry take on big, multi-jurisdictional CAs by designating and regulating their property.  Particularly where the CA’s attitude is unsympathetic.

One potential solution?  Make all conservation authorities subject to the province’s 2010 Standards and Guidelines for Conservation of Provincial Heritage Property.  As MNRF is itself subject to the S&Gs, it would not be illogical if CAs —  public agencies for which the ministry is responsible — were also brought under the S&Gs.  (This would mean, however, that authorities’ property could not be designated by municipalities.)  [Note 7]

Proctor House Museum interior

Well, it just so happens that the provincial government is currently undertaking a review of the legislation, regulation and policy framework governing Ontario’s conservation authorities.  The purpose of the review is to ensure that framework “is meeting the needs of Ontarians in a modern context.”  [Note 8]

One might make the case that the modern needs of Ontarians include a clear expectation that public agencies like CAs will be sensitive to cultural heritage and act responsibly when it comes to heritage assets within their care and control or over which they have some regulatory jurisdiction.

A hopeful sign for the review: a focus group session on conservation authorities and cultural heritage conservation was held in Toronto on July 18, 2016.  The session was organized and hosted by the Ministry of Tourism, Culture and Sport, with support from MNRF, and included representatives from a number of heritage/historical organizations, including two from Architectural Conservancy Ontario.  A very interesting and useful meeting, by all reports.

The 1840s double English Wheat Barn on the McVean Farm in Brampton, owned by the Toronto Region Conservation Authority and designated by the City of Brampton

Note 1:  Section 21 of the Conservation Authorities Act sets out the administrative powers of a Conservation Authority. The regulatory powers are in section 28. In that section “development” means:

(a) the construction, reconstruction, erection or placing of a building or structure of any kind,

(b) any change to a building or structure that would have the effect of altering the use or potential use of the building or structure, increasing the size of the building or structure or increasing the number of dwelling units in the building or structure,

(c) site grading, or

(d) the temporary or permanent placing, dumping or removal of any material, originating on the site or elsewhere

Note 2:  Another way of describing the different roles is that conservation authorities examine the technical feasibility of proposed activities from a water management perspective, while the municipal land use planning process examines proposals from the point of view of relevant social, economic, and environmental matters.

Note 3:  The house and 95 acres was donated by the Proctor family to the Lower Trent Region Conservation Authority in the early 1970s. An initial recommendation to demolish the house was opposed by a local group called Save Our Heritage Organization (SOHO). With the aid of a federal government grant the group was able to restore the house. The LTRCA then approved SOHO’s proposal to operate the building as a historic house museum, which opened in 1976 and is marking its 40th anniversary.

Note 4:  The Rockwood Woolen Mills on the Eramosa River were established in 1867 and the current stone structure built in 1884. After the closure of the mill in 1925, the site was transformed into a private park; in 1959 the Grand River Conservation Authority obtained the mill and land and the current park opened in 1963. A large restoration of the mill ruins was completed by the GRCA in 2010-11. The ruins are open to the public and can be rented for weddings or other special occasions for $1000.

Note 5:  More on the story of loss of this 1898 landmark here: 

http://www.lfpress.com/2014/08/12/lament-for-a-lost-landmark.

This may be a case where CA regulations — or the interpretation and enforcement of the regulations — needlessly complicated and ultimately doomed efforts by the property owner to retain and adaptively re-use a historic structure. Regulations on floodproofing requirements are one example. When it comes to heritage sites greater sensitivity and flexibility in the making and application of CA regulations is called for.

A related issue has to do with mill ponds and mill dams. Mill ponds are a vital component of the distinctive cultural heritage landscapes of many Ontario communities. At the same time CAs may favour unimpeded streams for fish conservation and other natural heritage reasons. This apparent conflict will increase as more dams age and require attention. Solutions to this widespread dilemma need to be found.

Note 6:  More on this structure, still standing but in a decrepit state, here: http://www.ourperth.ca/opinion-story/6021693-motherwell-store-awaits-new-purpose/

Situations like the Motherwell store raise an important question — is CAs’ ownership of cultural heritage resources always in the public interest? Many times CAs acquire property for projects or programs that are ill-considered or do not proceed. They find themselves as landlords of buildings and other cultural resources that they do not want to manage, and boarding up and demolition are tempting "solutions." The Grand River Conservation Authority is currently struggling with the issue: http://www.guelphmercury.com/news-story/6835443-guelph-couple-pleads-for-more-time-as-grca-prepares-to-evict-tenants-from-its-rental-properties/

There appear to be institutional and bureaucratic obstacles that prevent CAs from disposing of property surplus to their core needs (through sale or long-term lease of properties or sale subject to conservation easements or other agreements). In many cases cultural heritage properties are better in private hands; sale/lease relieves the CA of stewardship responsibility and the proceeds can be put to other use.

Where cultural heritage properties do continue in CA ownership, CAs should be encouraged to pursue partnerships and other cooperation with local heritage/cultural organizations in the use and ongoing management of the property.

Note 7:  Inclusion of conservation authorities in the list of public bodies subject ot the S7Gs is likely to be opposed by MNRF and CAs themselves. For more on the S&Gs and the policy thinking about which public entities to include/exclude, see my previous post on this topic: 

http://danschneiderheritage.blogspot.ca/2015/06/ontario-place-special-place.html

Note 8:  The review began in the summer of 2015. In May 2016 MNRF released a consultation document “Conserving Our Future: Proposed Priorities for Renewal” setting out the government’s priorities for the next phase of the review. See http://apps.mnr.gov.on.ca/public/files/er/conserving-our-future-proposed-priorities-for-renewal.pdf.