We saw last time that the Conservation Review Board is one busy little tribunal these days. The website list of their active cases doesn’t reveal what kind of cases they are but I’d bet dollars to doughnuts they all have to do with objections to designation.
There’s another kind of case the CRB has jurisdiction over but never gets (okay, almost never) — an “appeal” from a municipal council’s decision to refuse consent to the alteration of a designated property.
Section 33 of the OHA deals with alterations to property individually designated under Part IV of the Act. Referral to the CRB is found in subsections (6) and (7):
Application for hearing
(6) Where the council consents to an application upon certain terms and conditions or refuses the application, the owner may, within thirty days after receipt of the notice under subsection (4), apply to the council for a hearing before the Review Board.
Referral to Review Board
(7) The council shall, upon receipt of a notice under subsection (6), refer the matter to the Review Board for a hearing and report, and shall publish a notice of the hearing in a newspaper having general circulation in the municipality, at least ten days prior to the date of such hearing.
By the way, it’s a little odd that subsection (6) talks about an owner “applying” for a hearing while subsection (7) refers to receipt of a “notice” under subsection (6). It’s clear what’s intended but an application is not a notice. Sloppy drafting?
The last referral of this kind to the Board that I could find was…. well, actually I couldn’t turn up any, although I know it’s happened. Maybe two or three times in the 43-year history of the Board?
So why is this appeal provision virtually never used?
It has been alleged that, before the Act was strengthened in 2005, owners would get their way with alterations — thus no need to appeal — because municipalities knew that if the request was denied the owner could turn around and apply for a demolition permit — and be able to demolish sans further ado after 180 days.
I’m not so sure. Would an owner really resort to this kind of cut-off-your-nose-to-spite-your-face behaviour? Or the threat of it?
There maybe was the rare case where the prospect of a second, demolition application resulted in municipalities acceding to alteration requests they otherwise wouldn’t. But typically, as today, alterations and the differences around them were worked out between the owner and the municipality and a solution reached that both sides could support — without resort to an appeal to a provincial tribunal that may not have seemed worth the trouble given the generally small-scale projects at stake. Want to put on a garage? Fine, but put it at the back and keep it in proportion. Want to change your windows? Okay, but be respectful of their original shape and materials.
In the 2005 overhaul, demolition controls were changed drastically. Municipalities could stop demolition; property owners could appeal to the Ontario Municipal Board. But there seemed no reason to touch section 33.
Thirteen years later it’s time to reassess.
In “Alteration, demolition — and partial demolition?” I asked the question: Isn’t it kind of strange that a 100 percent demolition and a 90+ percent demolition (such as one might see in a façadism approach) are treated differently by our legislation? The former — a demolition — follows one track; the latter — an alteration — another.
One track, of course, gives you the opportunity to appeal demolition refusals to the Local Planning Appeals Tribunal (the former Ontario Municipal Board), with the LPAT having the power to overrule the municipality. On the other track your “appeal” from an alteration refusal goes to the CRB, with the Board making a recommendation back to the municipality, which has the final say.
While demolition under the OHA is basically an all-or-nothing matter — the structure is either razed to the ground or it isn’t — alteration covers a wide spectrum of types and degrees of changes to the structure or property. Retaining only façades or small parts of big buildings is light years away from updating windows. Some alterations will “affect the heritage attributes” of the property in minor ways; others will have a major effect. Still, others may have such a huge impact as to come near to the consequences of demolition: loss of most or all of the heritage attributes and, with them, the cultural heritage values of the property.
The Toronto Stock Exchange — quite the alteration!
In the current environment, the bifurcated appeal process has become problematic.
For one thing, it creates potential unfairness for property owners. An owner of a proposed development that would keep the historic façade may have as much at stake as one whose redevelopment calls for demolition of the heritage building. Yet the second owner can appeal a municipal refusal to the LPAT for a binding decision; the first cannot.[1]
For another, the process may in fact be providing a disincentive to conservation. Where the municipality refuses proposed major alterations, the owner may opt to proceed with a demolition application instead, hoping for better result from the LPAT. The recent case at 421 Roncesvalles Avenue in Toronto appears to be an example of this.[2]
And then there is the inconsistency. Before 2005, when there was nothing to appeal, the OMB was not in the picture when it came to demolitions of either individually designated buildings under Part IV or buildings in heritage conservation districts under Part V. But the OMB did have authority to hear appeals on alteration refusals in an HCD (as well as refusals to permit the erection of new structures). Now, of course, the LPAT has cornered the market on demolition appeals in both parts of the Act. That leaves only alteration appeals under Part IV outside the LPAT’s purview … with what looks like an antiquated and virtually never-used appeal route to the CRB.
The fix for this is simple: subject both alteration and demolition applications under Part IV to the same appeal process, just as is done in Part V.
Section 33 should be revised, or combined with section 34, to permit appeals to the LPAT.
What say you?
By now many of you will have heard the sad news of the death of Steve Otto. Built Heritage News has fitting tributes to Steve here. I wrote about Steve in January when his appointment to the Order of Canada was announced.[3]
Steve Otto with Connor Turnbull and Dan Schneider at the ACO awards dinner
Notes
Note 1: The first owner can of course “appeal” to the CRB, and have council make the final decision, but, as the rareness of such appeals demonstrates, will almost certainly decide not to bother.
Note 2: See https://www.toronto.ca/legdocs/mmis/2018/pb/bgrd/backgroundfile-113110.pdf.
Note 3: See “Looking back at 2017…”.