Heritage Conservation Districts, pre- and post-2005, part two

We saw last time that an OMB panel decided in 2009 that “old”, pre-2005 HCD plans were advisory only and did not have the enhancements of “new” plans (plans that complied with the 2005 amendments to the OHA). And that about the same time a different OMB panel in another case decided the contrary — that the “old” plans were as good as the “new” (or at least could be).

Old versus New

How did this happen? Did the conflict get resolved?

The OMB panel in the Kleinburg case, which concerned a dispute over proposed changes to the 1852 Martin Smith House in the Kleinburg-Nashville Heritage Conservation District, had an unusually complicated situation before it.1  We won’t go into all the messy details but part of the site was individually designated under Part IV, while the whole site was designated under Part V as part of the HCD. The Board thought the matter of approvals for the project would be greatly simplified if Part V and the 2003 HCD plan were determined to apply to the whole site. But — because of the wording of the OHA about which Part applies in double-designation scenarios — this would necessitate treating the “old” plan as a “new” plan.

Suffice to say, contrary to the position of both of the parties, that’s what the Board did.

In this case, clearly unanticipated by the legislation, a municipality did have an HCD Plan in effect, but proposed to ignore it … because there was no evidence of an update to declare it as being “adopted under Section 41.1” [providing for the adoption of HCD plans and their mandatory contents]. … Because of that omission, the OMB is being invited to inflict pragmatic and procedural convolutions on all involved. On a purposive reading, the OMB discerns nothing in the legislation that would have intended such a result.2

The Board went on — perhaps further than it needed to — to pronounce that “the Kleinburg-Nashville Heritage Conservation District Plan is still binding on any By-laws ‘that affect the designated district’, whether the HCD Plan was updated or not.” And: “There is nothing in the OHA which restricts the Kleinburg-Nashville Heritage Conservation District Plan from governing any By-law pertaining to the House property.”

In other words, using a kind of reverse logic the Board found — based on what it called a “purposive” interpretation of the statute — that a pre-existing plan should be accorded the same status as a new plan since there was “nothing” in the Act specifically stating that pre-existing plans did not have the same force as new plans.

Huh?

For the reasons discussed in part one of this article, it was never the intention of the drafters of the legislation, or the Legislature that passed it, to give old plans the same status as new plans.

But then, while the intention of drafters and legislators, where it can be discerned, should be given great deference, it is not definitive as to the meaning of our laws and their application in specific situations — and ultimately that job is for our courts and tribunals to figure out.

That doesn’t mean we can’t criticize them when we think they get it wrong. Or overstep.

In the Kleinburg case one could argue that the Board went a bit rogue. In trying to find a way out of a regulatory conundrum particular to the case it made assertions and findings that had potentially far greater implications.

More complications and implications came as a result

And so we got two OMB decisions coming to opposite conclusions on the status of pre-2005 HCD plans. This was obviously awkward and confusing. Not to mention the uncertainty created about just what should or should not be allowed to happen in pre-2005 heritage conservation districts!

It was hardly surprising, then, that the “losing” parties from both of these cases sought clarification on the issue. The vehicle for this is a request for a review of the objectionable decision. Under the since-repealed section 23 of the Ontario Municipal Board Act3 the Board could review a decision and — depending on the results — change or rescind the decision. In practise the review was done by the OMB chair.

In response to the request from the Port Dalhousie group unhappy with the Board’s decision in that case to allow the proposed condo tower, and to treat the Port Dalhousie HCD plan as advisory only, the OMB chair wrote:

I agree with the comments in the Request that it is necessary for the Board to undertake a purposive and liberal interpretation to achieve the objectives of the OHA. The court decisions found at tab 3 and 4 of the Request support this proposition. I agree with the ground raised in the Request that the correct interpretation of s 41.2 (1) (b) of the OHA [prohibiting a municipality from enacting by-laws for purposes contrary to those of the HCD plan] is set out in the Decision of Member Denhez [in the Kleinburg case].4

That’s right — the OMB chair came down on the side of an-old-plan-can-be-as-tough-as-a-new-one!5

Harumpf.

Fast forward 10 years to the LPAT’s decision last month approving a low-rise condo project in the South Rosedale Heritage Conservation District.6

For present purposes we need not get into the nitty-gritty of the case. It is enough to say that the appellants, who wanted approval to build the project, thought it would actually advance their case if the 2003 South Rosedale Heritage Conservation District Study were treated as a “new” and binding plan. Groups fighting the project took the opposite view.

A binding plan? The Tribunal was having none of it. It summarily dismissed the earlier cases as based on different fact situations and found that the old-plan-can-be-as-tough-as-a-new-one doctrine (if that’s the word) was not binding on it.

The Appellants attempted to construct an argument based upon Section 43 Ontario Municipal Board Act reviews issued by the Chair of the Ontario Municipal Board in 2009 of two prior Ontario Municipal Board decisions under Case references PL060850 (Port Dalhousie) and PL060606 (Kleinberg). With respect to those decisions and the review by the Chair, the underlying circumstances and issues were different from those pertaining in this instance and this panel does not find any determination in those dispositions which binds this panel on the question before it.

 

The Tribunal therefore finds, on the evidence and the fair interpretation of the statute in its clear expression, that the HCD Study is not a heritage conservation district plan within the meaning of s. 41.1 of the OHA. (emphasis added)7

In considering the merits of the case the Tribunal regarded the South Rosedale study not as something that had to be followed but as an advisory document to be given serious attention (which is what it was intended to be) and went from there.

On this point I think the Tribunal got it right. Is it too much to say that the old plan/new plan question has been laid to rest once and for all?

By the way, any “old” HCD plan out there is at least 15 years old. Maybe time to review and update? (Yeah, I know, easier said than done…)
 


Note 1: Case no. PL060606 from February 18, 2009.

Note 2: Page 16 of the Kleinburg decision.

Note 3: With the demise of the OMB section 43 no longer exists but a similar provision is found in section 35 of the Local Planning Appeal Tribunal Act.


Review of Tribunal decision

The Tribunal may review, rescind or vary any decision or order made by it in accordance with the rules.


Note 4: From the OMB Chairs letter of May 4, 2009.

Note 5: However, the Chair concluded that this “error” did not materially affect the outcome of the decision to approve the condo tower and declined to vary or rescind it.

Note 6: Dale Inc. and Dale II Inc. v. City of Toronto, July 4, 2019. LPAT case no. PL171267. See https://www.omb.gov.on.ca/e-decisions/pl171267-jul-04-2019.doc.

Note 7: Sections 96 and 97 of the decision.

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About Dan Schneider

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Dan Schneider is a heritage enthusiast, policy wonk, writer and professional heritage consultant. Formerly senior policy advisor with the provincial culture ministry, Dan has much experience with the Ontario Heritage Act and heritage policy issues. A lawyer by training, he was lead policy expert on major changes to the Ontario Heritage Act in 2005 and 2006. His advice is frequently sought on questions related to Ontario's legislative and policy framework for heritage. Based in St. Marys, Ontario, Dan is Principal of Dan Schneider Heritage Consulting. He can be reached at danschneider@live.ca.