Built Heritage News - Issue No. 142

1. The Road Ahead for Ontario's Heritage Conservation Districts
Catherine Nasmith

Paul King, Jane Pepino, Catherine Nasmith at break

Whether you agree or disagree with the Campbell OMB decision on Port Dalhousie, it is clear it changes Heritage Conservation District planning in Ontario.

On April 25th representatives of Ontario’s diverse heritage sector gathered at Fort York to discuss the fallout of Ontario Municipal Board Vice Chair Susan Campbell’s decision permitting a 17 storey tower in the Port Dalhousie Heritage Conservation District. (HCD) Getting the details of an HCD Plan right means the difference between it standing or falling in the face of development pressures. Even though much of the discussion would seem like dancing on the head of a pin to the uninitiated, it was very important for those seeking to protect Ontario’s special places.

Audience members included private heritage consultants, lawyers, municipal heritage staff, Ministry of Culture heritage staff, members of Municipal Heritage Committees, citizens who live in Districts and ACO members. People from both sides of the Port Dalhousie OMB decision were present in the audience. Presenting were lawyer Jane Pepino, Professor Robert Shipley and Wayne Morgan.

To say that feelings are still running a bit high on both sides of the Port Dalhousie debate is something of an understatement, but the predicted “shoot out” at Fort York did not materialize, instead the focus was on what this decision means for day to day heritage practice. Not all questions were answered.

The day began with a positive story. Professor Robert Shipley outlined the findings of the soon to be released report on Ontario’s mature Heritage Conservation Districts. Not surprisingly, the study undertaken by graduate students for the Architectural Conservancy of Ontario confirms that people enjoy the benefits of living within HCD’s. “Happiness” ratings and property values were higher where controls were more stringent. The converse was also true, where enforcement was lax, and inappropriate alterations permitted, property values were lower. A common concern was inadequate enforcement of the guidelines.

Areas where improvements could be made include more funding to do studies and update plans; better tracking of applications and posting plans and conservation information on municipal websites. HCD plans need to be periodically reviewed and updated, perhaps every 5-7 years to determine if they are working as intended.

Notwithstanding the requests for review of the Campbell decision because of a contradictory decision issued by Marc Denhez about eight days beforehand, unless the Campbell decision is overturned it will set the standard for Ontario practice. The key legal pointbetween the two decisions was whether or not a District Plan passed before 2005 enjoys the enhanced provisions of the new Ontario Heritage Act, ie. a municipality cannot pass a bylaw that contradicts the District Plan. Campbell says no, the pre-2005 plans must be upgraded to meet the standards of the new Act; Denhez says yes - the pre-2005 District Plans were grandfathered.

What would this mean for the Cabbagetown District for example, which is subdivided into five smaller Districts, three passed before 2005, two afterwards, but all the plans are nearly identical. Does the Campbell decision mean that only 2/5 of the District is fully protected?

Many in the room favoured the Denhez interpretation. Why would all Part IV designations have been grandfathered to get the protection of the new Ontario Heritage Act, yet Part V designations (HCD’s)? divided into two categories?
For lawyer Jane Pepino, this point of law was critical in whether or not the St. Catharines council could give permission for the development. Dan Schneider, senior policy advisor at the Ministry of Culture doesn’t think that the Campbell decision hinges on this point, and that even if the OMB sides with Denhez, he believes the interpretation would not materially alter the OMB’s approval of the development. Jane Pepino, firmly disagreed with Mr. Schneider.

Madame Hubbard, OMB chair issued her response to the request for a review of the OMB decision May 4.

Mr. Schneider’s prediction was right on the money. Hubbard refused the request for a review of the decision at the same time acknowledging the error in law regarding the pre-2005 districts. Hubbard re-confirmed Denhez’s interpretation that a plan passed before the New Act did not need to be re-passed under the 2005 Act to enjoy the “enhanced protection” available under the 2005 Ontario Heritage Act.

Toronto and other cities have been of the view that it is not possible to upgrade a plan without opening the designation process to appeal. On the other hand Vaughan has simply passed a bylaw adopting existing HCD plans under the new Ontario Heritage Act. George Rust’D’Eye, one of Ontario’s most respected municipal lawyers, agreed that it should be possible to amend the HCD bylaw without opening the question of the designation. Ministry of Culture guidance on appropriate process is needed here.

Ms. Pepino cautioned that development lawyers are starting to look to the Campbell decision as a way of breaking pre-2005 District Plans so municipalities need to act fast to upgrade protection. The big question of the day is where will all the resources come from to do the work needed to meet the “Campbell standard”. Another issue is the need for intervenor funding to allow communities to defend their HCD’s at the OMB.

Pepino stressed that District Plans are going to need much more discussion of both principle and detail, and that it will take highly qualified experts to draft them. Everything of significance needs to be recorded in the Plan, which buildings, landscape elements are to be protected. “The language of guidance must be replaced by the language of regulation” commented fellow presenter Wayne Morgan. The soft language of avoid or preferred must go in favour of must, will, and shall so that there is very clear instructions to property owners, municipal decision makers, and the OMB.

Morgan also commented on the desirability to have more than one OMB member on such a long complicated hearing and the need for a Conservation Review Board (CRB) member as part of the panel when heritage is involved. At the moment the Memorandum of Understanding between the OMB and the CRB gives the OMB the power to decide whether they want to have additional expertise. There have been two decisions in Oakville where a CRB member was requested by the municipality. In one case the CRB was not able to provide anyone for the time requested, in the most recent request The OMB has declinde to include a CRB member, citing sufficient heritage expertise within the OMB. It was suggested that the Ministry of Culture initiate a discussion to change the MOU.

Another issue is the way the OMB chose to “balance” different parts of the Provincial Policy Statement (PPS). The OMB felt that they were not obligated to give heritage more consideration than the need for revitalization and intensification. In Morgan’s view this is inappropriate. When Council has established an HCD then the municipality is making a clear statement that the municipal priority in this area is on conservation.

Another place where heritage may be “balanced” out of existence is in communities governed by the Ontario Places to Grow Act. The legislation requires that heritage be conserved “where feasible”. “Where feasible” needs to be defined. Following the 2007 Ontario Heritage Conference resolutions the ACO wrote to the Minister of Infrastructure to have this section of the legislation reviewed, or better have “where feasible” deleted. No response so far.
Morgan cautioned against “zingers” in the heritage sections of the O.P, ie. things that might suggest that there are conflicting priorities. The Port Dalhousie plan contained a motherhood statement encouraging economic revival of the commercial part of the district, but was not clear whether that was to take place within the existing commercial buildings.

An emerging theme of the day was a call for the Ministry of Culture to become more proactive in assisting municipalities to “get it right” in the first place, and in guiding the OMB on the intent of the legislation. Dan Schneider commented “We [at the Ministry] are not the experts”. He noted that once the legislation is passed it has a life of its own and the “experts” are in the field. Lawyers, heritage consultants, and municipal staff look to the legislation and have to “rely on what it says”.

It seems that what is said is not always what was intended. It is also clear that the moment is here to start plugging the policy loopholes that are appearing.

Shortly before the new Ontario Heritage Act was passed, Anthony Tung was here to speak at the Hamilton ACO/CHO conference. He commented that we would find that a binding law required much more specific regulation to be in place.

Seems his prediction is proving to be exactly right. It will take a great deal of collaborative effort and discussion to put in place appropriate heritage practice. Many who were there agreed to become part of an HCD network to continue discussions of best practice. The Ministry of Culture must become a very active partner in that process.

If you are interested in becoming involved in the heritage conservation district discussion, contact Richard Longley of ACO to get “on the list” longley_fovea@sympatico.ca

Editor's Note:
Sorry for the overly long article, it was a long complicated discussion. The OMB decision, and the Hubbard response to the request for review are posted on the ACO website under news, http://www.arconserv.ca ACO/CHO

2. St. Basil's School in Toronto's Yorkville: Under Siege
Stacie Marune, Edited by Shirley Morris

Photo courtesy of author

34-38 Hazelton Avenue, formerly St. Basil’s Separate School, built in 1928 in a Collegiate Gothic style by Toronto architect, J. M. Cowen, is threatened by unsympathetic development. Listed as a heritage property in 2002, it became designated when the Yorkville-Hazelton Heritage Conservation District was created later that same year. Located in a “hot condo” area a block from retail Yorkville, it nevertheless stands in a neglected condition well within the HCD.

Approval was granted in 2006 for alterations to the property that included a three-storey addition to the rear of the school building with the intention of creating two residences. That scheme and alternatives that followed went unrealized.

The City planner recommended refusal of a new proposal in March, 2009 for a redevelopment designed by NYC “starchitect” Peter Marino. Requiring 4.7 times allowable density, it came with applications for Official Plan and Zoning by-law amendments and envisioned eight storeys (33.6 m.) added to the rear and partially above the two-storey school building, overall almost three times its height. The Toronto Preservation Board refused the proposal.

Two neighbourhood associations, three condo boards, the local BIA, the Heliconian Club, and most residents opposed the development. It was felt that the height and massing of the addition would overwhelm the building, that the added storeys (despite setbacks) would be highly visible from the street, that it was deplorably suited to the heritage neighbourhood of largely Victorian house forms and other heritage buildings such as the Heliconian’s church building. Furthermore, it would restrict sunlight reaching the immediate neighbour to the north and block the light well extending behind the properties running north from 34-38. Lastly, the design presented a sunken forecourt in the facade, with wide storefront glazing opened into the masonry base. In short, the development ignored the HCD’s design guidelines and would seriously erode its integrity.

The above views were presented to the April 21 meeting of the Toronto & East York Community Council, but not before the applicant surprised the planner, Councillors and deputants with a new proposal to reduce the height by two storeys and to further setback the top floor. While the T&EYCC refused the applications for rezoning and changes to the OP, it deferred a decision relating to the revised alterations until planning staff can assess the changes, the TPB can deal with it again on May 21, and until the T&EYCC reconvenes on June 9.

Please make objections to the proposal for 34-38 Hazelton Ave. to ltinker@toronto.ca; fax 416-392-1330; phone 416-392-0420 re: Reference #08 169177 STE 27 OZ and to Dan DiBartolo of Preservation Services ddibart@toronto.ca Re: “34-38 Hazelton, Alteration to a Designated Heritage Property”, and to Robert Saunders, Chair, Toronto Preservation Board, heritagepreservation@toronto.ca. Contact T&EYCC councillors, most importantly Councillor Kyle Rae, Ward 27, councillor_rae@toronto.ca.

3. Toronto Star: Toronto on Foot, Day Four

Mount Pleasant Cemetery a peek into our city's past

Statuary from Mount Pleasant Cemetery

They are dead but not forgotten, their names inscribed all over this city.

Along the winding roadways and paths of Mount Pleasant Cemetery lie the graves of many of the people who shaped Toronto, shaded by every kind of tree and visited by rabbits, birds and joggers.

The prominent figures buried at the lush 80-hectare site include Timothy Eaton, of Eaton's department store, William Christie of "Mr. Christie, you make good cookies," Egerton Ryerson, the namesake of Ryerson University, and businessman and politician William McMaster.

There are stories to be told – of a ship that sunk on a misty voyage, of philanthropists fighting homelessness and tuberculosis, of a Presbyterian minister who survived the bullets of a religious fanatic and of women who spent their entire lives shrouded in black, grieving loved ones taken by Victorian diseases.

Issue No. 142 | May 5, 2009

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