A July 4 decision of the Local Planning Appeal Tribunal (LPAT) okayed a low-rise condo development in the South Rosedale Heritage Conservation District in Toronto.1 The case is noteworthy in several respects.
The aspect of the decision we’ll look at today concerns the status of “old”, pre-2005 Heritage Conservation Districts. This is a particular bugbear of mine. The case (one hopes!) will finally put paid to a befuddlement about older HCD plans that goes back more than 10 years.
According to ministry sources 74 HCDs (just over half of the current 134 HCDs in Ontario), covering over 12,000 properties, date from before 2005.2 Most, but not all, of these districts, had — and continue to have — some form of study or plan with guidelines on how changes to the district should be handled over time. In the years leading up to 2005 it had become a best practice to have a comprehensive study of the district resulting in a detailed plan with guidelines for conservation and development decisions.
In the 2005 changes to the Ontario Heritage Act this practice became mandatory. All HCDs since then have plans that meet the OHA’s requirements, both for the process of developing the plan (public meetings, adoption by council, etc.) and for the contents of the plan itself (objectives of the HCD, policies and guidelines for managing changes to the district, etc.).
These post-2005 plans are quite strong. They override zoning and other by-laws in the event of conflict; and municipal public works in the district must be consistent with the plan.
But what about the “old” plans or guidance documents, the ones that were already in place — some for decades — at the time the Act was amended?
This is what is known as a transition issue. From the perspective of those who are drafting legislative changes to improve an existing regime, the policy question is what to do with the product or results of previous decisions — in this case a large number of pre-2005 Part V designations. Do you a) leave them as they were (grandfather them), or b) automatically “upgrade” them to the stature of new ones?
The answer for existing HCDs in the province was essentially to take a combined approach. As with Part IV (individual property) designations, HCDs in place at the time the legislation came into force were given real teeth in the form of permanent demolition controls, subject to a right of appeal, just as any new HCD would have.
As for existing HCD plans … these were not touched. If a municipality wanted to upgrade to a new, more powerful plan for an existing district, it had to follow the amended Act’s process and content requirements for HCD plans. Of the 74 pre-2005 districts, 12 have since had their original plans or studies updated to new plans.
Why not just roll over the old plans?
In the first place, it would not always have been clear what these “plans” were (don’t forget that the pre-2005 OHA made no mention of HCD plans). Nor how they had been developed and adopted — and particularly whether they had satisfied due process principles including public/owners consultation and notification and council review/approval.
Secondly, these documents where they existed were intended as guidance and not as strictures with binding effects and this is reflected in the language used.3
While in most cases one can see them coming, the exact timing of the introduction of new rules for an established regime will often seem arbitrary or at least unpredictable to some extent. Certainly there were a few HCD plans, and good ones at that, that happened to be in the works and were put in place close to the time the OHA changes took effect — and got caught, if you will, on the “wrong” side of the divide.
One of those plans was for Port Dalhousie, the historic canal village on the lake in St. Catharines. The Port Dalhousie HCD and accompanying plan date from 2003.
Port Dalhousie's commercial core
In 2008 the city’s refusal to approve a 17 storey condo tower smack in the middle of Port Dalhousie’s HCD resulted in one of the most famous — and infamous — heritage cases in Ontario history. In early 2009 the Ontario Municipal Board approved the tower!4
To the argument that the HCD plan for Port Dalhousie did not countenance condo towers, the developer (PDVC) countered that, among other things, the district plan was not binding.
It is the position of PDVC that as the City did not follow the process set out in the new Heritage Act, the District Guidelines are not a district plan for the purposes of section 41.2 [providing for the paramountcy of plans] …
PDVC introduced what the Board finds to be a persuasive piece of evidence to be considered on the issue of whether the District Guidelines constitute a district plan for the purposes of the new Heritage Act. The City’s Director of Planning contacted the Ministry of Culture, Heritage and Libraries Branch asking for advice on the issue of the status of pre-2005 district guidelines. Dan Schneider, Senior Policy Advisor, an individual who the Board can only assume has relevant knowledge of the issue, said: “with the passage of recent amendments to the Ontario Heritage Act, current Heritage Conservation District by-laws, plans and guidelines have the same status they have always had...New heritage conservation districts will have to follow specific procedures set out in the Act, including the mandatory adoption of a district plan. These districts will have certain ‘enhancements’: district plans will prevail over zoning and other by-laws to the extent of a conflict...while existing plans will not have the enhancements referred to above, they will represent the municipality’s stated objectives and policies with respect to development of the district and should be respected. In matters that come before the OMB...the OMB will look to those plans/policies in reviewing the matter” (emphasis added in original).5
Whatever you may think of the authority quoted (haha!), the Board had no trouble finding that the Port Dalhousie plan was not entitled to the deference that would be owed to a plan approved in accordance with the 2005 statutory requirements. In other words, that the plan was advisory only.
So in terms of the status of pre-2005 plans … case closed, right?
Well, not so fast. Coincidentally about the same time another OMB panel was dealing with a similar issue arising from the City of Vaughan’s 2003 plan for the Kleinberg-Nashville Heritage Conservation District.
And coming to the opposite conclusion! Oh dear.
To be continued…
Notes
Note 1: Dale Inc. and Dale II Inc. v. City of Toronto, July 4, 2019. LPAT case no. PL171267. See pl171267-jul-04-2019.doc.
Note 2: According to the Ministry of Tourism, Culture and Sport:
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74 HCDs (55% of total HCDs), which include 12,051 properties (52% of total HCD properties), were designated in Ontario before 2005.
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Eight municipalities have however updated 12 of these designations from the previous study or plan to a new plan.
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Adjusting for these updates there are currrently 62 pre-2005 HCD studies/plans that have not been updated in 20 Ontario municipalities. This number includes 10,940 properties.
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The pie chart below gives an idea of the age of these old studies/plans. Almost 30% of them date from the five years before the 2005 changes.
Note 3: Language like: “it is advisable to…”; “where possible” do …; “should generally”; “use best efforts to …” It can be problematic to say that there is a legal “conflict” between guidelines expressed in this way and other by-laws like zoning by-laws, which state unequivocally what is permitted and what isn’t.
Note 4: Port Dalhousie Vitalization Corporation v. City of St. Catharines, February 26, 2009. OMB case no. PL060850. See OHA+M from November 20, 2015 here.
Note 5: Page 14 of the decision.