Editor’s note: Uploading of this article, originally authored in early July, was delayed for technical reasons. As expected, an appeal of the council decision has been launched.
Wow, Port Hope has stared down Goliath.
In a 4-3 vote on June 29th Port Hope council decided to refuse a demolition application for the old Port Hope Hospital at 65 Ward Street.1 The property is designated under Part IV of the Ontario Heritage Act and includes three heritage structures.2
The property is also subject to a Ministerial Zoning Order (MZO) under the Planning Act. The order, issued on June 9th, is intended to clear the way for a newlong-term care facility on the site by its current owner, Southbridge Care Homes.
A facility that can’t be built until those pesky heritage buildings are gotten rid of. But Port Hope’s not playing ball.
Expect the proverbial sh*t to … you know.
The former Port Hope Hospital, main façade.
If you’ve never seen a MZO, have a look at this one.
MZOs are all different.3 The Port Hope one, as you can see, is pretty obviously designed to permit and expedite a long-term care facility.
It seems Minister of Municipal Affairs and Housing Minister Steve Clark issued the order at the request of the Minister of Long-Term Care Paul Calandra, and with the active support of the local MPP, David Piccini, who also happens to be the Minister of Environment, Conservation and Parks.
Mnn, three government ministers with skin in the game.
Did I mention that Port Hope’s council did not request the MZO? It was imposed on the Town without its agreement in an attempt to break through a years-long wrangling impeding (in the province’s eyes) Southbridge’s major redevelopment plan for the site.
The current government at Queen’s Park is no stranger to the Ministerial Zoning Order.
Since taking office in 2018 the government has used MZOs more than 100 times, far exceeding the 16 times (over 15 years) the previous government employed it.4 Once reserved for very special and urgent situations, the MZO has become a blunt instrument for the province to push forward various big development projects— sometimes at the request of, and sometimes over the objection of, municipal councils, which in our land use planning system are the normal decision-makers.
The appeal of the MZO from a development standpoint is its ability to cut through key aspects of that system. As currently structured5, the MZO overrides the Provincial Policy Statement, provincial plans and municipal official plans, meaning that their policies do not apply to the use and development of the lands in question. Natural heritage polices, cultural heritage polices and any other otherwise applicable polices can therefore be ignored in the zoning order and in any subsequent approvals required for the proposed development to proceed. The unstated rationale: What is being planned for the site has the government’s blessing and is deemed more important than the public interest in whatever might be “in the way.”
It gets worse. MZOs do not require public consultation before they are made, or even public notification after — and there is no appeal. Here too the public interest — in a fair, transparent process — must give way to senior-government-knows-best.
Partially as a response to public criticism of particular MZOs, and the process itself, last year the government created a new kind of ministerial zoning order. Clumsily dubbed the Community Infrastructure and Housing Accelerator (CIHA), the new tool was part of Bill 109, More Homes for Everyone Act, 2022, which became law last April.6
Like MZOs, CIHA orders are not subject to provincial and municipal planning policies and there is no formal appeal or review. But the new tool does seem designed to mitigate some of the process deficiencies of MZOs. The legislation mandates a number of rules the government has said it’s been applying to most (?) uses of the MZO: municipal councils need to make a formal request by vote, undertake some (limited) form of public consultation, and make the issued order public.
With this new and (somewhat) more refined tool, there was some expectation that the Minister of Municipal Affairs and Housing would soon be issuing more CIHA orders and fewer MZOs. But is that what’s happening? It’s early days but I don’t see municipalities lining up to request a CIHA.
If municipal councils are reluctant, for whatever reasons, to put their foot on the accelerator (sorry), the CIHA may turn out to be a flop. Meanwhile MZOs are still going strong.
Back to Port Hope.
Here is a case with a municipally-designated heritage structure squarely in the way of a provincially-issued zoning order.
The designation — and decisions about alteration and demolition of buildings — is made under the Ontario Heritage Act, the zoning order under the Planning Act. There is no inherent conflict between the two statutes and mechanisms. No need to figure out which law trumps the other.
Both statutes apply. An MZO does not diminish a municipal council’s authority to designate a property or to approve or refuse a demolition application.
The OHA, as we’ve been taught from day one, is not about use. A heritage designation is about conserving cultural heritage values manifested in physical features or attributes — it’s about the “fabric” of a place and its appearance and visibility. The concept of adaptive re-use, a key tenet of heritage conservation practice, presupposes that use is largely irrelevant, relevant in a particular case only in so far as it may affect what is done to heritage fabric.
A zoning order, on the other hand, is about use, and related things like height and setback of structures.
And with Port Hope’s MZO, it’s about use for a long-term care facility with a maximum height of 26 metres (seven stories), tailor-made to accommodate the large project the private owner of the property is itching to build.
The existing designated building is three stories with a much smaller footprint on the site than its proposed replacement. The site itself is part of an older, largely residential neighbourhood of two-story buildings. There apparently has been no serious thought of, nor appetite for, incorporating the heritage building into the new development.
So while last month’s MZO did not eclipse Port Hope council’s authority to approve or refuse a demolition application, there was, as you might imagine, tremendous pressure brought to bear on councillors — remember, three ministers! — to approve the demolition and clear the way for the redevelopment of the site in line with the MZO.
From a distance, that, at the end of a marathon council meeting, with umpteen delegations and eloquent, impassioned remarks from members of council on both sides, the first vote to approve the demolition (narrowly) failed and the second vote to refuse the demolition (narrowly) won out … seems almost miraculous.7
Kudos to all Port Hope councillors for grappling with this difficult, hot-potato issue!
An appeal by the owner, Southbridge, seems certain. And how likely is it that the disgruntled ministerial trio and their government will just sit back and let that play out?
Watch this space.
Detail of main doorway on old Port Hope Hospital.
Old postcard view of former Port Hope Hospital.
Schematic of the proposed new building superimposed on the old hospital building in Port Hope.
Notes
Note 2: See the Notice of Intention to Designate for 65 Ward Street, the former Port Hope Hospital, here: https://www.heritagetrust.on.ca/oha/details/file?id=10862. In 2019 the property was the subject of a hearing by the Conservation Review Board, which recommended its designation. The CRB’s decision (case number CRB1813) can be found at https://olt.gov.on.ca/decisions/. The designation by-law was passed with the changes recommended by the CRB in 2022.
Note 3: Compare this 2021 MZO for the Town of Innisfil: https://www.ontario.ca/laws/regulation/210568. Note the specific, and peculiar, inclusion in section 4(2) of a designated building (an old train station) as a permitted use: “7. A building designated pursuant to Part IV of the Ontario Heritage Act.”
Note 4: The full list of MZOs is here under the Regulations tab: https://www.ontario.ca/laws/statute/90p13. The Port Hope “Zoning Order” is currently the most recent. The first MZO by this government appears to another Innisfil one in 2019 (and for a long-term care home!).
Note 5: In comparing pre-2018 and post 2018 MZOs it is also important to note that under the previous government MZOs were required to be consistent with/conform to the Provincial Policy Statement and provincial plans. The current government changed that.
Note 6: A new section 34.1 was added to the Planning Act: "The Minister [of Municipal Affairs and Housing] may make an order … upon receiving a request from a municipality … exercising the municipality’s [zoning] powers under section 34, or that may be exercised in a development permit by-law, in the manner requested by the municipality with such modifications as the Minister considers appropriate… (emphasis added)". For more on the Community Infrastructure and Housing Accelerator see: https://www.ontario.ca/page/community-infrastructure-and-housing-accelerator.
Note 7: It should be noted that the Port Hope heritage committee also wrestled with the issue. In a unanimous vote, the committee voted to recommend to Port Hope council that the demolition application be refused.
The special council meeting to consider the issue went on for three hours. A recording of the meeting can be found on YouTube.
A final note: It is clear that in Port Hope, as in many other communities, there is a pressing need for more long-term care options. The question facing council was whether a proposal of this type and scale, in this location, and necessitating the destruction of designated heritage buildings, was the right choice for the town.