20 August 2009

 

heritage at risk?

Gentle reader, this rather weighty summer 09 sequence of blogs devoted to built heritage had its genesis in the early summer. A sequence of events prodded the related research: the last City of Kitchener Council meet before summer recess, a news article in the local rag, and an e-mail request from an acquaintance.

First, the Council meet that RR hoped would be a quick 30 minute session turned out much longer and more interesting than she had expected. RR had gone to hear out a property owner who was opposing the listing of his property on the City's Heritage Register and Councillors' responses. She expected to hear the usual argument that such a listing would limit his development/property rights; instead most of the interchange between Council and delegate concerned the legal issues re demolition of a barn. Free legal advice ensued i.e. that as long as the barn was in agricultural use, no demolition permit would be required.

Next, a local natural heritage advocate whom I shall call Lady Green was allowed to speak to the sale of city-owned parklands issue. Although Council had committed itself to not sell off two parks (Kiwanis and Lakeside), Lady Green wanted to know what kind of contract Council would be willing to sign to ensure these parks would remain public parks in perpetuity. Much fudging and persistent questioning ensued until Council turned to staff for advice. Well, Council's decision re city-owned lands was not appealable and hence not legally binding ( ah yes, municipal elections around the corner in 2010; next Council safely elected could opt to sell off these same lands.

To give the degree of certainty Lady Green required, staff advised that Council would have to 1) amend the official plan; and 2) pass a by-law to change the zoning in the affected lands. Both those actions are appealable and have legal force. Both issues were deferred to Monday 24 August 2009 Council meet. Agenda and related staff reports are posted to the City's website the previous Friday after noon. *

Those gentle readers who have chewed on the Port Dalhousie related blogs will recall the OMB response to a political decision made by Council even when that decision comes dressed up in the phrase "a moral contract" with its citizens. What the issues have in common are that they deal with valid land uses. The pressure on publicly-owned parklands or privately-owned farmsteads results from legislative changes made in 2005 and 2006 directing growth towards the City of Kitchener and calling for intensification of built-up settled areas -- the very same issues at the crux of the Port Dalhousie OMB hearing.

Next? the local rag picked up the Port Dalhousie OMB decision the day Heritage Canada Foundation released its list of Canada's 10 most endangered heritage places and put all of Ontario's 90+ Heritage Conservation Districts on its nationally endangered sites list. The story was headlined, "Heritage Districts made vulnerable by board ruling," and featured local comment by Heritage Kitchener citizen co-chair who opined, "That’s outrageous. To go ahead and put a high rise up, I would argue that up, down, left, right and centre." (1)

The next day RR received an e-mail from a leading spokesperson from the local heritage community urging all on his mailing list: "I urge you to communicate with your Member of the Provincial Parliament to urge her/him to bring to the cabinet's attention the need for overturning this dangerous precedent." Ah yes, RR owed this gentleman one as back in 2005 when RR was actively lobbying for prompt passage of Bill 60 to amend the Ontario Heritage Act the same chap cheerfully endorsed and forwarded her request to his voluminous mailing list. What to do? as sending a signed letter to her MPP would require that she be absolutely certain of such a position and not merely joining a growing chorus of voices.

Thus, it was time to actually read all about an issue that she knew about but had conveniently avoided in spite of the continuous stream of updates re the Port Dalhousie OMB hearing. Time to drop all those self-justifying excuses that what happened over there could not affect what could happen here. Do understand that Rambling Rose has 1) absolutely no legal training; and 2) has never had the remotest desire to deal with lawyers or legal issues. However, in all fairness she owed Mr. Local History a return favour; but beyond that, her personal integrity required she inform herself as best she could before offering up an opinion to her elected representative.

The past six weeks spent digesting four highly complex legal documents are comparable to have double-booked dental sessions every other day for the entire summer. You must know that feeling, gentle, reader,...the patient is prone on her back with the dentist drawing closer with a drill and a soft, seductive tone insisting, "this really is for your own good, you know."

Well, it has been. Highly instructive. Thus, RR found herself deluded when she, as did others within the local heritage (natural & built) community-- as did PROUD in Port Dalhousie-- pointed to the specific Provincial Policy Statement 2005 that assured her that "significant built heritage [or natural heritage] resources shall be conserved." Ah yes, why read the entire PPS 2005 when one was already munching on such a satisfying morsel?

During her first reading of the Campbell decision, RR was heard to mutter, "really splitting hairs, aren't we now, Ms. Campbell?" as Ms. Campbell proceeded to offer up a grammar lesson on the function of the "significant" modifier in legal terms. RR has reconsidered in light of some of her summer rambles-- latest one through several blocks of downtown Hamilton filled to the brim with significant built heritage resources, followed by a photoshoot of the Ancaster Old Mill ( near the original Willson's Mill where Governor Simcoe spent a night on his Detroit walk), and then to the rather insignificant Burford buildings as listed by County of Brant. Already HD documents are grouping buildings according to significance into categories A B C--a sign of future losses and more overheated OMB hearings as all urban downtowns must comply with the 40% provincial intensification target?

In the end, RR has decided not to ask the Minister of Culture to overturn the OMB ruling? How, in all conscience, could this Minister do so as the Campbell OMB ruling is a masterpiece in terms of showing the hierarchy of legislation that must be adhered to in land use planning. All things considered, Ms. Campbell arrived at a fair, balanced ruling.**

Changes, big changes, are coming to all of our downtowns. Just consider this: City of Kitchener is expected to grow at rate of 5,000 pop per year over next 20 years; 2,000 new residents will have to be accommodated in the currently built-up areas = 40,000 (approximately size of Woodstock) will have to find places to live on lots that already have buildings on them. There will be more towers and more demolitions. For now, RR can set aside legal issues to those who earn big bucks appearing before the OMB. Summer is quickly fading into autumn and time to ramble on!

I leave you, gentle reader, with a miscellany of heritage-related quotes to ponder:

Notes: * selling off city-owned lands could be highly tempting as per today's news item in local community paper: Councillor Gazzola informs his ward that City of Kitchener is expected to run $4,000,000 deficit this year; RR believes Ministry of Municipal Affairs requires city councils to balance their budgets;

** were PROUD & the developer to drop their adversarial positions with the ruling in place in order to agree to work together to enhance the last publicly-owned waterfront on Lake Ontario, they could begin negotiating a better site for the oldest tiniest jail in Ontario that all are committed to preserve. Why not try working together-- initial architectural drawings show this tiny building dwarfed by the tower....just moving it into another location in the public Hogan's Court could prove to be a win-win for all on the waterfront.

Photos: with one exception, all images are representative of built heritage resources to be found in City of Kitchener heritage conservation districts & one cultural heritage landscape (2nd last photo: Sims Estate) currently protected; the misfit? the tobacco stick kilns from outside of Burford speak to the Nortolk Sand Plain's significant built heritage resources but are not mentioned at all in the Brant County heritage driving tour. Will these iconic structures disappear as rapidly as our nineteenth century barns have?


Sources: (1) Terry Pender, Heritage districts made vulnerable by board ruling, The Record 9 July 2009; (2)Robert Feagan, Links Across a Grand Heritage Landscape, address to 4th Canadian River Heritage Conference June 2004; (3)–Graham et al. A Geography of Heritage–Power, Culture and Economy. New York 2000; (4)John N. Jackson, The Welland Canals and their Communities, 1997; (5) Catherine Nasmith, The Road Ahead for Ontario's Heritage Conservation Districts, Built Heritage Newsletter May 6, 2009

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# posted by ramblingrose @ 7:17 PM 0 Comments Links to this post
 

the rule of law



















Gentle reader, the following notes have been taken verbatim from Patrick J. Devine & Mark A. Piel, Zoning versus heritage –who Wins? Do the Old Rules still apply? Fraser Milner Casgrain L.L.P. May 2009 This report has been prepared by lawyers for lawyers and reviews heritage preservation issues, the Ontario Heritage Act, and the various OMB rulings & in particular the Denhez and Campbell decisions that are the subject of previous posts to this blog and labelled as such. Please note that this is a partial summary re points that RR found relevant for herself; RR would recommend reading the report in its entirety as it sheds considerable insight into complex planning and heritage issues. Photos of City of Kitchener's historic Governor's House and Gaol dating to the 1850's & the starting point for Berlin/Kitchener's growth into regional administrative centre in the Region of Waterloo.


“No doubt due to portrayals in the popular media, words like “development” are presented as
contrary to “heritage; the former term conjures images of dynamite, wrecking balls and
demolition, while the latter term suggests the perfectly just preservation of buildings and sites of
shared historical significance and value....”development is often considered a vice while” heritage”
–preserving the built landscape...is a virtue.”
2. “Making clear the rights and entitlements of landowners...helps us avoid conflict and helps
resolve disputes in the event of conflict....Zoning provisions provide certainty about associated
levels of risk because they have the characteristics of legislation and the rule of law; ...[whereas]
official plans....are imprecise “statements of intent” to perform a subsequent legislative act and
lack the precise characteristics associated with zoning by-laws.
3. The idea of the “public good”: “Planning goals as diverse as ....efficient land use patterns, the
management of heritage resources both natural and cultural, and protection of health and
safety...are identified in the 2005 Provincial Policy Statement as integral to the long-term
prosperity and social well-being of all Ontarians....
4. A complex regulatory environment, “the notion that development and heritage preservation are
mutually exclusive goals may very well misrepresent their relationship in the regulation of land
uses in Ontario......"
5. 2005 amendments to Building Code Act (BCA), Ontario Building Code (OBC),. And Ontario Heritage Act (OHA) defines applicable law & now includes section of OHA; for example, applicable
law includes municipal zoning by-laws but does not include official plans or heritage district
guidelines; applicable law now includes OHA sections 30(2); 33; 34; 34.5; 34.7(2); 42; 27 (3);
40.1 & Planning Act section 34 or 38; However, bylaws made under OHA sec 41.1 dealing with
HCD designation and adoption of HCD plan are not considered applicable law for purposes of OBC
6. OHA property designation per Ontario Regulation 9/06: “in order to be designated a property
must meet only of the nine criteria listed in the regulations (in three groups: design or physical
value; historical or associative value; and contextual value
7. HCD plans and guidelines: “Because the designation of HCD potentially modifies rights held by
owners of real property within the designated district, the creation of any plan must take into
account the elements of procedural fairness associated with the rule of law.” ====> right of
appeal to OMB
8. However, right of appeal re “double designated” properties (cf. Previous blog re Denhez decision)
“in light of conflicting decisions by the [OMB], it is likely that either further litigation or legislative
amendments will be necessary to achieve greater clarity as to the meaning of these provisions,
and ultimately, greater legal certainty for owners of heritage properties.”
9. Per OMB member: “The Provincial Policy statement, which deals with all of these matters [i.e. “A
myriad of worthy, but often competing, interests] specifically directs the reader to consider the entirety of the PPS and not isolate one area from another.”
10. Intensification may not leave a heritage property in the exact state it was prior to development, but such circumstances beg the question of what becomes of the heritage property if it is not financially viable to invest in its conservation or restoration?
11. Re Port Dalhousie: “the new council met in camera with the city solicitor to review its options with
respect to the appeals. But rather than follow the city solicitor’s advice and recognize the appeals as valid, conduct a public hearing on the repeal of the by-laws, and repeal the by-laws by vote,
council instructed the city solicitor to appear before the Board and communicate that the new
council no longer supported the previous council’s decision and required PDVC to initiate a
concurrent application under the OHA.
a. “This reliance on balance [i.e. conserve significant heritage resources & intensification in
built-up areas] which contributed to the Board’s ultimate findings which did not view
economic prosperity and heritage conservation as competing interests but mutually reinforcing and interdependent.... Port Dalhousie was ....not sustainable, and if the
district was not economically viable, valuable heritage resources or attributes would be
threatened.”
12. “Perhaps an indicator that ‘heritage trumps zoning’ is found at section 68.1 of the OHA. Prior to
Bill 60, section 43 of the Ontario Municipal Board Act provided the Board the power to rehear any
application or to review any order previously made by the Board. However, with the 2005
amendments to the OHA, the legislature expressed its clear intention at sec 68.1 that the powers
of the Board granted under sec. 43 would not apply in cases of applications made to the Board
under the OHA (...with one exception].


Postscript: FYI 
The Ontario Government’s Standing Committee on Government Agencies is meeting to review
the operation of The Ontario Municipal Board, (as well as the Ontario Power Generation Inc. and
the Royal Ontario Museum). Many in the heritage community are deeply concerned about the
services and mandate of the Ontario Municipal Board. We have all had heated discussions about
the failures of the OMB. Now is our chance to act, and all our members are encouraged to file
their views. Meetings are to be held September 8, 9 and 10, 2009. Written comments are to be
delivered by Thursday, September 10, to: Douglas Arnott, Committee Clerk,
Room 1405, Whitney Block, Queen’’s Park,
Toronto, ON M7A 1A2
Phone: 416-325-3506 Fax: 416-325-3505 TTY: 415-325-3538

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# posted by ramblingrose @ 5:55 PM 0 Comments Links to this post

17 August 2009

 

economic stimulus* ( the Hubbard review)

Although the Ontario Municipal Board delivered its final ruling as summarized in the previous blog, PROUD continued its fight to save its heritage Welland Canal port village by submitting sec. 43 requests for a review of OMB member Campbell's decision. They were supported in this fight by the Architectural Conservancy of Ontario, a provincial association who actively lobby for heritage preservation. On 29 March 2009, ACO stated its position in a hand-delivered letter to Marie Hubbard, Chair OMB:

“We are particularly concerned about the variation in interpretation of the OHA between Member Denhez (OMB PL060606) and Member Campbell (Port Dalhousie). It is critically important that there be consistency from the OMB in how it interprets HCD’s in existence prior to the 2005 changes in the Ontario Heritage Act....We have members and branches across Ontario alarmed by the Port Dalhousie decision.
They do not know what level of protection is available for their HCD’s...in particular what status the OMB will give to District Plans for the vast majority of HCD’s implemented prior to the 2005 changes to the OHA (Bill 60). The fear is that the Port Dalhousie decision puts the vast majority of Ontario’s HCD’s at risk of out of scale development or fragmented development.”

Herewith, a summary of OMB Chair Hubbard's response to PROUD per e-mail of 4 May 2009: “The Board is not a court...and is not bound by its decisions when considering new matters. Board decisions are not precedents, and a decision of one panel cannot bind or compel a future Board panel.” However, Chair Hubbard stated: “I acknowledge that the PROUD request correctly points out that two errors are found in the Decision (the interpretation of OHA sec 41.2 (1) (b)**and the transitional provisions to the Growth Plan. However, I do not find that these errors....would have affected the final result.”


1. “The issues raised in the PDVC proposal involved the complex interrelationship between heritage conservation and land use planning. [the OMB] decision characterizes the central issue as one of
determining whether the .. proposal achieves the policy imperatives of heritage conservation and long term economic prosperity of the community of Port Dalhousie.....These policy objectives are
compatible....and need not be viewed as conflicting goals. Economic growth or revitalization in an HCD is certainly not limited to construction of new buildings. Heritage conservation also recognized the importance of rehabilitation, renovation or conversion of existing uses.”
2. PROUD assertion that Campbell interpretation of OHA sec. 41.2(1) (b) conflicted with an earlier OMB interpretation by Board Member Denhez and is incorrect. Per OMB Chair Hubbard: “the correct interpretation of OHA sec. 41.2 (1) (b) is set out in the Decision of Member Denhez.However, .....the Board determined that the PDVC development proposal complies with Port Dalhousie HCD Plan and guidelines... that [were] incorporated into the Local Official Plan.”
3. “HCD plans are not meant to offer determinative checklists of heritage features, such that items that are not mentioned are assumed to be excluded from the list of heritage attributes or reasons for designation....study documents or guidelines need not include a specific reference to each heritage attribute.”
4. Provincial Growth Plan Reg. 311/06 directs “that applications filed prior to June 16, 2006 be disposed of as if the Growth Plan had not come into effect.....Further, the policies of the Growth Plan that were considered are not materially different from the objectives of PPS, respecting intensification of land uses or the promotion of long term economic prosperity and economic vitality.”
5. “The Board determines that this proposal will provide an economic stimulus to this community that will serve to protect the Port Dalhousie HCD in the long term. The previous municipal council at the City arrived at the same conclusion. The current municipal council does not share this view, although this Council too no steps to repeal the official plan amendment and zoning by-law adopted by the previous Council.”
6. “I am satisfied that the Board carefully considered all of the evidence presented and I am in agreement with the Decision... per Marie Hubbard, OMB chair e-mail 4 May 2009

Notes: *phrase" economic stimulus' cf. #5 above is analogous to "catalytic spending" concept employed by City of Kitchener. Thus, City of Kitchener Economic Development Investment Fund @ $110,000,000 over is this city's gamble that public investment into downtown revitalization will prompt matching private investment. This appears to be working as Cadan Inc. of Toronto (private firm) made two major investments locally: a) City of Kitchener investments per EDIF: 1) former St. Jerome's building now Wilfred Laurier University School of Social Work; 2) former Epton site now University of Waterloo School of Pharmacy with adjacent McMaster School of Medicine under construction;====> prompted the following private investments: b) Andrin Development's converstion of the former Kaufmann factory to loft residential condominiums; and c) the Lang Factory complex to be transformed into a multi0use Tannery District Cf. Toronto's Distillery District also done by Cadan; and the Palisades apartment building on Queen Street; Cadan cited City of Kitchener's significant investment into the downtown as rationale for choosing to invest in the City of Kitchener downtown.


**the economic stimulus benefits to City of St. Catherine's/ Port Dalhousie of the now OMB approved development proposal :
a. Improvements to enclosure building for the carousel
b. Assistance in building the skating path (winter ice-skating, summer in-line skating)
c. Provision of water feature to commemorate the first Welland Canal
d. Reconstruction of existing public parking area within the park
e. Maintenance of historic jail
 1. construction jobs over two years: 309-374; of which 231 direct new jobs with 131 employees on
site at busiest time
2. New businesses: 885 new jobs
“This development should serve as a catalyst for other developments in the City and the Region.

Photos top to bottom: 1) Wilfrid Laurier School of Social Work; 2) university of Waterloo School of Pharmacy; 3) Kaufmann Lofts; and 4) Lang Factory Complex currently undergoing restoration/conversion. Rambling Rose has been to Port Dalhousie once-- to ride the carousel at 5 cents per ride and never paused that day's adventure to take photographs of Port Dalhousie. Tomorrow's another day!




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# posted by ramblingrose @ 10:26 AM 0 Comments Links to this post

01 August 2009

 

the Rum Jungle & Hogan's Alley (the Campbell decision)



Gentle readers, friends of built heritage, the Heritage Canada Foundation put all of this province's Heritage Conservation Districts on its top ten list of nationally most endangered places.

The Foundation's bulletin reads: 'OMB DECLARES OPEN SEASON": [the OMB ruling"....threatens the integrity of all heritage conservation district designations in the province, and sets a dangerous precedent for heritage districts across Canada."

Herewith, a summary of the relevant decision set out in a 69 page document after 71 days of hearings into the issue.

For anyone interested in preserving our built heritage, this document is tough, weighty, but highly essential reading as it shows the interrelationship of a wide variety of legal instruments that are involved in resolving heritage issues in the public interest.

At this point, Rambling Rose is not sure whether she agrees with the Heritage Canada Foundation stance or not. Thus far, she has completed two readings of two OMB decisions; still waiting for perusal OMB Chair Marie Hubbard's response to PROUD concerns with the Campbell decision.

What is clear is that the revised Heritage Act 2005 & the Places to Grow Act 2006 are linked by the Provincial Policy Statements issued under the Planning Act & that targeted growth areas such as the Region of Waterloo will need to absorb the lessons in the Port Dalhousie decision. Herewith, RR's "shortened" ??? notes of the Campbell decision and two maps of the subject area. Links will follow later this weekend. Hogan's Alley & the Rum Jungle are to be replaced with an open air public space & hopefully, the City of St. Catherine's will regain control over this popular summer drinking destination---cf. Kitchener's King Street brawling bar scene during the 1990's & we still have a parking lot in Centre Block???

OMB decision PL 060850 issued 26 February 2009 by Susan B. Campbell, Vice Chair

1. The legal framework:
a. Planning Act sections 2.1; 17(36); 34 (19); 41.9(12); 42.1(6); sec 31;
b. Provincial Policy Statement 2005 (in its entirety)
c. Ontario Heritage Act 2005 sections 41.1 (2); 41.1(3); 41.1(4); 41.1(6)
d. Growth Plan for the Greater Golden Horseshoe 2006 reg 311/06; sec 2.2.2; sec 4.2.4(1)(e)

2. The dispute before the OMB:

PROUD Port Dalhousie (Port Realizing our Unique Distinction), City of St. Catherine’s (newly-elected council that opposes a development approved by previous Council)<===link provides access to OMB decisions, the ongoing petition and overview of this historic 5 year struggle that saw $500,000 by the community to support the PROUD case before the OMB

vs

PDVC Port Vitalization Corp & Region of Niagara, St. Catherine's-Thorold Chamber of Commerce, Port Dalhousie BIA) <=== link provides scale models of proposed development re Port Dalhousie Heritage Conservation District (HCD) in City of St Catherine's /Regional Municipality of Niagara, a unique “Welland Canal port lakeside community” designated in 2003 (link provides HD description in national Historic Places register:

At stake is a .46 ha commercial site with heritage buildings ===> 17 storey condo, hotel, theatre, mixed use, underground parking, public open plaza (2004 proposal for 30 storey condo withdrawn, current proposal submitted 2006)=approved by previous council; however, new council does not support this proposal

3. Status of Port Dalhousie Heritage District Conservation Plan & Design Guidelines: a. cf PROUD: “ public interest expressed in last election that gave mandate to current Council to oppose approval of development” ===> OMB “the public interest...is expressed through planning documents (PPS, Growth Plan for Greater Golden Horseshoe, municipal official plans and secondary plan and regional official plans. These documents result from a thoughtful and comprehensive consideration... Public opinion as expressed in the heat of municipal elections or passionately contested board hearings is not necessarily synonymous with the public interest.”

b. cf PROUD: “flawed process” [re previous Council]===>OMB: current Council waived City’s Procedural By-law, did not repeal the By-laws passed by previous Council, met in camera and thus avoided “mandatory public meeting in which all voices could have been heard” = “not a process giving rise to a decision to which the Board will have much regard”

c. City St Catherines 2003 designating by-law appealed & dismissed ====>OMB: “designation ....as HD represents good planning and will not have any undue adverse impacts”; reviewed in 2009, per this OMB: 2003 OMB ruling did not consider merits of that document per OHA since before OHA 2005 did not require heritage conservation district plans; however OHA 2005 requires such plans cf. OHA 41.2(1) and 41.2(2) & such plans to prevail if there is conflict with another by-law===>PDVC: per OHA 2005: “the process must be followed by a municipality to be afforded elevated status; since that 2005 process was not followed for the HD guidelines, they are not a district plan under OHA 2005"===>per OMB: sec41.1(4) provides the same process for the adoption of a post-2005 district plan must be followed for the adoption of a pre-2005 district plan” & sec 41.1(5) sets out the required public consultation process NB sec 41.1(2) reads “if on or before the day the OHA 2005 received Royal Assent, the council ....may pass a by-law adopting a heritage conservation district plan for any of the designated districts”: “the enactment of a by-law adopting a HD plan is appealable to the Board” In this instance, District Guidelines are not a district plan per OHA:

cf. Dan Schneider, ON Ministry of Culture: “[post 2005 HD 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”

ii. City: “the process set out in section 41.1(2) for adopting pre-2005 guidelines as a district plan is not mandatory...”Note: PROUD: “one must accept that HCD plans or guidelines only obtained legal status through the 2005 amendments to OHA. This interpretation has the potential to render ineffective and useless every heritage district plan or guideline adopted prior to Bill 60" ===>OMB: Port Dalhousie HD plans lack “status [i.e. for protection] the City did not follow the process, clearly set out in the statute, to assure the elevated status....[Although process is not mandatory] ....if [the municipality] does not pass such a by-law after following the requisite process set out in sec 41.1, pre-2005 guidelines or district plans will not be district plans for the purpose of sec 41.2(1).

(i) A process, involving the preparation of a plan with specific content, public consultation and the right of appeal has been set out in the statute....[This] process for adopting a pre-2005 district plan...affords substantive right to owners of property in a HCD. The preservation of built heritage is vitally important in this province. Because of that the new Heritage Act, allowing for district designation and the adoption of a district plan can result in the loss of property rights. That loss of rights is justifiable as the preservation of built heritage is of such consequence. However, the loss of such property rights can only happen after a transparent public process has taken place.

Section 41.1 guarantees such a process...the required fair public process must be followed i.e. guidelines require by-law of Council & public process

4. “In a case involving Planning Act instruments and Heritage Act permit, the matters are inextricably linked.” How? the Provincial Policy Statement OMB: “the Board cannot dismiss or disregard the considerable emphasis and priority the Province has placed on intensification in built-up areas. The challenge...is to determine if the provincial goal of intensification can be achieved while meeting the provincial goal of heritage conservation.” ===>the need to read the PPS as a whole
However, Port Dalhousie is not designated as an “urban growth centre” cf City & PROUD: [the development is “intensification in the wrong location” ===>OMB: development application is subject to Growth Plan; therefore, OMB “must engage in a balancing exercise”

5. Niagara Policy Plan 5.5; 3.2; 4: sec 4.A.3: “to assist in development of Welland Canal corridor [includes Port Dalhousie]==>OMB: Region wants to assist such development.”Key nodes should see opportunities for compatible and appropriate commercial development” (Region continues to support development proposal)

6. City St Catharine’s Official Plan sec 16 The Port Dalhousie Neighbourhood Plan cf Friends of Eden Mills v Eramosa Twp 1998 decision: “the policy objectives of an official plan are not restricted to heritage concerns; thus...there must be a weighing and balancing of various interests where there is no detailed and specific direction in the Official Plan”
7. Port Dalhousie HCD guidelines provides this description: “A compact settlement perched on the table lands of a small peninsula that separates Lake Ontario to the north from Martindale Pond to the South; the distinctive commercial core: centred on Lakeport Road; Hogan’s Alley and Lock Street is distinguished by its nineteenth and early twentieth century architecture of two- and three storey terrace blocks and individual hotels...built primarily of red and buff brick in the Italianate style ===>OMB notes that 1) no mention is made of one-storey, mid- twentieth century buildings (Erskine’s Pharmacy, Hydro Building) or open area behind Lock Street (currently occupied by the Rum Jungle and associated drinking “ ”terraces”==> OMB: a) “post-1950 buildings may form part of HD character or heritage fabric, but only if the Guidelines address them as such”; b) lack of clarity about heritage fabric (streetscapes, landscape features, views, vistas and open spaces)==> Studies and guidelines must speak for themselves. c) no mention made of Main Street or street with no name: thus, the Jail House has not been included in the HD; d) sec 7.4 height; Guidelines recommended that Council amend the zoning bylaw to restrict building height to 9 m. City Council did not follow this recommendation. e) HCD guidelines “are not prescriptive in determining specific design solutions for each building or lot”; f) “boundary edges” of entire district are “emphasized by the significant height of table land and steep banks that separate land from water”

8. Port Dalhousie revitalization objective?
a. “the [Commercial] Core has become centre for the consumption of alcohol especially between Victoria Day and labour Day”
b. expanded tourism with focus on attracting an “upscale clientele”==> thus PDVC proposal of mix of commercial uses to meet needs of tourist market ( boutique hotel, retail and restaurant space, theatre and large public open air space)
c. per OMB: “the commercial core is located in a “settlement area” (per PPS) and “built-up area” (per Growth Plan) & growth is directed to such an area;
d. per OMB: “the HCD designation [does not] render all elements of the district equally significant and requiring conservation at the same level” i. “Either the Study and the Guidelines contain the content required by section 41.1(5) or they “capture an essence.” The Board finds that they cannot do both.”

OMB decision approves the PDVC site plan & directs a heritage permit issue for demolition, alteration and new construction proposed in PDVC’s heritage permit application subject to the Heritage Conservation Strategy and Heritage Easement Agreements with the City.-–Susan B. Campbell, OMB Vice Chair

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# posted by ramblingrose @ 9:03 AM 0 Comments Links to this post

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