The Lawyers Weekly - October 1, 2010

Circular appeal process lessens
charm of heritage properties

Whether you’re dealing with a charming early-century brownstone in Toronto’s Cabbagetown, a quaint old cottage along the river in Niagara-on-the-Lake, or a historic storefront or warehouse in Hamilton, there are plenty of cautions to heed when your client is involved with a heritage property in Ontario. Before clients purchase a heritage property, they must be extremely familiar with all the rules and restrictions under any provincial heritage legislation and, in particular, the rules relating to alterations and demolition permits.

For example, until 2005, the heritage designation of a property under the Ontario Heritage Act merely allowed a municipality to delay, but not ultimately prevent, the demolition of a heritage property. In 2005, the province enacted amendments to strengthen the Act. Under the amended legislation, a landowner of a Part IV designated heritage property, who is refused a demolition permit by the local municipality, no longer has an automatic right to demolish, but can appeal the refusal of the demolition permit to the Ontario Municipal Board (OMB). The OMB can grant or refuse to issue a permit and its decision is final.

However, if the landowner wishes to alter a Part IV designated heritage property, the process is more complex. The Act requires that the owner make an application for alteration with the municipal council. A denial of such an application can only be appealed to the Conservation Review Board (CRB), a provincial tribunal. The CRB then holds a hearing and makes findings.

Unlike the OMB, the decision of the CRB simply becomes a non-binding report back to the very same municipal council that originally denied the application. The municipal council is then free to adopt or reject the CRB’s findings, and there is no further recourse or appeal procedure for the applicant.

In addition to an individual property being designated as a heritage property under Part IV of the Act, a property can be designated under Part V of the Act as being located in a Heritage Conservation District (HCD). An HCD

MARY
FLYNN-
GUGLIETTI
&ANDREW
WARMAN

“Purchasing a heritage property without a full appreciation of the restrictions imposed by provincial legislation can become a costly mistake of historic proportions.

is an area where all buildings or certain parts of buildings within a specified geographic area are considered historically significant. Applications to either demolish or alter a Part V property are made to the municipal council; however, a denial of either application can be appealed to the OMB.

Complicated enough yet? A property can also be designated under both Part IV and Part V of the Act. Once again, the rules concerning demolition and alteration can be quite complex under this scenario. For example, if a property is dual-designated, it is subject to the Part IV rules if the designation of the HCD predates the 2005 amendments to the Act and no HCD plan has yet been adopted by the municipal council for that particular district. Otherwise, a dual-designated property is subject to the rules for demolition and alteration found in Part V of the Act.

Unfortunately, as is illustrated
in several leading cases (Port Dal-
housie Revitalization Corp. v.
PROUD, OMB Case File
PL060850 and 10360 Islington
Avenue Inc. v. Vaughan, OMB
Case File PL060606), various city
councils and tribunals have taken
somewhat divergent views on the
application of the Act. In addi-
tion, the differing appeal proced-
ures can be quite unfair, particu-
larly for the Part IV appeal
provisions for alterations.

Mary Flynn-Guglietti is a partner at McMillan LLP in Toronto and has practised municipal and land use planning law for over 25 years. She and McMillan associate, Andrew Warman, have worked extensively with the heritage laws in Ontario. They acted for the developer in 10360 Islington Avenue Inc., referenced above.

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The Saskatoon city council has rejected a request for a bylaw banning owners from allowing their pooches to pee on neighbours’ lawns.

After the issue was raised, the council reviewed a city report concluding that a law preventing owners from letting their dogs urinate on private property would be hard to enforce. Property owners would have to file a complaint and complete a witness statement— and the actual evidence is pretty hard to retrieve. The council turned down the bylaw request, according to The Star Phoenix.

Saskatoon residents will just have to put up with those telltale yellow patches on the grass. — Natalie Fraser

Council nixes pet urine bylaw

MARCO NEUMAYR / DREAMSTIME.COM

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