... the municipal procedures and rationale, while technically legal,… have been so suspect that they raise process questions (and even pointed to errors of reason) – and yet the municipality still stumbled into a planning outcome which the Board could not rightfully overturn…. [Denhez 16]*
By Liz MacKenzie, LCA Heritage Committee
Thus Ontario Municipal Board (OMB) Chair, M.C. Denhez, described the City of Ottawa’s handling of rezoning on King Edward Avenue.
To appeal or not to appeal
One does not casually make an appeal to the OMB. Preparation takes weeks, sometimes months: gathering information, preparing arguments and assembling exhibits. The more experienced heavy hitters you have on your side, the better. Few individuals can match their opponents’ $20,000 – $50,000 to commission a cultural impact statement or to retain expert witnesses, planners and lawyers to make their case. Any brave soul who files an appeal takes on City legal and planning staff and the opponents’ highly trained lawyers, planners and expert witnesses.
Ted Lawrence did just that. With research and financial assistance of three community members, Clarence Street property owner Lawrence appealed three City bylaws to the OMB.
The issues under appeal were three bylaws approved by City council in 2014. They were bundled together in a single report to Planning Committee, a known strategy that makes analysis and comment confusing and difficult:
The first, By-law No. 2014-24, generally rezoned several blocks along King Edward to six-storey midrise, compared to the previous lowrise limit of 11 metres.
The second, No. 2014-25, addressed properties specifically at the corner of King Edward and Clarence Street, the focus of this phase. It removed part of the Heritage Overlay, which had regulated the massing of buildings on this block of Clarence Street for four decades.
The third, No. 2014-26, was a site-specific rezoning for a nine-storey apartment hotel, several blocks away (“hotel site”).[ Denhez 3]
The bylaw relating to the hotel was appealed because it allowed an exception to the newly minted height of 6 stories. The developer filed a motion to dismiss, which was upheld after a one-day hearing – leaving only two appeals in play. The appeal of the other two bylaws went forward and was heard on September 8th, 2014 by M.C. Denhez for the OMB.
The decision
The appeals were dismissed, but citizen concerns were taken seriously and Chair Denhez rewarded the effort with an eloquent decision that 
highlights all the City’s Heritage Section problems that became apparent during the hearing.
…the Board is compelled to dismiss this appeal, despite its dissatisfaction with the City’s paper trail. [123]
The upside: the appeal allows access to information. Lawrence was able to request all material from City files related to the subject: emails, telephone conversations and letters. In the removal of the Heritage Overlay, these were exceedingly revealing. Another plus is that the appellant and the OMB Chair can examine staff, often getting answers that are not forthcoming from a lone citizen’s inquiry. In his decision, Chair Denhez notes:
It sometimes happens in Ontario that appellants take a case to the Board for little other reason than desperation to get a straight answer. [90]
The rezoning of King Edward Avenue
On the first appeal, (By-law 2014-24) the rezoning of King Edward Avenue, the concern was that many properties on the West side of King Edward Avenue that are in the Heritage Conservation District will be threatened by the new height increase. Rezoning allows six-storey midrises, compared to the previous lowrise limit of 11 metres (three-four storeys). Buildings on King Edward Avenue East have no protection and are vulnerable to assembly, random demolition and development under the proposed Mainstreet Zoning: a concern of the LCA Heritage Committee.
Prior to the rezoning, in August 2010, the community had taken their concerns to the Built Heritage Subcommittee and the City Planning Committee. The initial outcome was favourable: Planning Committee instructed staff to do a comprehensive study of heritage properties in Lowertown East. After months of inaction, when questioned by the community, heritage staff wrote to say that “no money was allocated to this project other than supervision”.
Denhez comments: The ensuing “review” such as it was, was not by staff but by students at Carleton University’s School of Canadian Studies – a class project, which applied only to one eighth of Lowertown East (called “tthe Wedge”), some distance north of the subject properties. [39]
The Association then sent repeated correspondence to the City, asking when the Committee’s mandated review would extend to the other seven-eighths of Lowertown East (aside from the Wedge). The initial written response from the City’s Heritage Coordinator, Sally Coutts, was that “we will sort that one out” (January 27, 2012).[40] However, in later correspondence, staff instead took the view that the Committee meant the Wedge only, and hence there was no further work to be done on the rest. [41]
The Board heard no persuasive explanation of how a clear direction to staff, from Planning Committee, to study heritage in “Lowertown East,” was reinterpreted to apply only to the Wedge… The more enduring concern was the reputed elimination of resources, not only from that assignment, but from most heritage assignments under the OHA, the PPS and the OP. The Board was not told how the City is supposed to perform its prescribed functions under such circumstances. As admirable as student projects may be, the implementation of Provincial and OP policy in this area cannot rely on them indefinitely. [88]
When Lawrence asked how they could prepare for designations in the absence of funding, the city’s heritage planner replied, “That’s a very good question.” And that is not a very good answer, but an answer that gravely worries heritage groups throughout the city.
Lifting the Heritage Overlay: now you see it – now you don’t
The second appeal (By-law 2014-25) addressed properties at the corner of King Edward and Clarence Street. The by-law removed part of the Overlay, which had regulated the massing of buildings on this block of Clarence Street for four decades.
A Heritage Overlay ensures that a replacement building is approximately the same height and footprint as the building being demolished. When City staff circulated their draft report on the rezoning of King Edward Avenue, there was no mention of lifting the Heritage Overlay on the Groupe Claude Lauzon Ltée.’s derelict brick row houses, at 269, 277, 285 and 291 King Edward Ave. The document went to a public information meeting on October 17th, unchanged.
On November 27, 2013, staff produced their 32-page final report to the Planning Committee of the LCA. The community was staggered to find, in three sentences buried in the report, that the Heritage Overlay was to be removed. In a vehement response, the Association contested the recommendation submitted to the Planning Committee without consultation of either the LCA or the BHSC. The LCA appealed to Chair of the BHSC for a review, but heritage staff flatly refused to consider the request. Only when the city documents, including staff correspondence and comments were obtained, did the reason for the removal became clear.
What the record says…
By chance, the planner for Groupe Claude Lauzon Ltée. bumped into a City planning manager who alerted him to the King Edward Avenue rezoning. A quick email from Lauzon’s planner to the city planner points out the existence of a Heritage Overlay that is an “impediment to development” and requests that “consideration should be given to the removal of the heritage overlay from some properties in the corridor, eliminating the requirement to seek minor variances and/or rezoning.” (Nov. 7, 2013). Ongoing dialogue ensued and just one week later, Lauzon gets his response:
… further to our phone discussion last week I can offer the following response. I reassessed the Heritage Overlay which applies to Clarence Street… the Department will consider removing the Heritage Overlay from those properties fronting King Edward. This would include 269, 277,285, and 291 King Edward Avenue. The draft report is currently with management for review but this recommendation to remove the Heritage Overlay will be incorporated accordingly…. any questions… please do not hesitate to contact me.
Really, that simple? The city planner reassessed the Heritage Overlay? Not quite. Here’s how it went. When the file was originally circulated to Heritage Section for comment, they replied:
The Heritage Section has no specific concerns with the proposed rezoning, except that the Heritage Overlay (Section 60) should remain in place on all properties that are currently covered by it. (October 16th)
However, following the developer’s request to remove the Heritage Overlay, and considerable correspondence with staff and councillors, the Heritage Section comments:
We don’t know the rationale for the addition of the Heritage overlay on Clarence, but it likely predated the designation process. I would suggest a compromise would be to remove the HO on the properties fronting onto King Edward on the east side of the street only. This would mean 269, 277, 285, and 291. (Nov. 12, 2013)
The OMB chair took exception:
The Board heard no information on why a City staff member – let alone a heritage official – would issue personal calls on selected councilors “to simplify the redevelopment process”, on the ground that “the properties are NOT protected under the Ontario Heritage Act and… the Heritage Overlay does not protect buildings”.
Staff’s emphasis, on the properties not having been designated, was also misleading…The Board does not understand why it was told that removal of the Overlay “doesn’t necessarily mean someone will build higher; that’s speculation,” when removal of the Overlay to allow “someone to build higher” was the entire point of the discussion. . [Denhez 88]
However, Denhez denied the request to retain the Heritage Overlay, reasoning that:
The Board was told very little about the historic, architectural and cultural aspects of the subject properties, or the block itself. Indeed, City heritage staff testified that it did not even have any record of the reasons for the Overlay here… [30]… For example, the appellant might have considered bringing forward evidence of “heritage significance” – architectural, historic, cultural or social – or at least any grounds to suggest that the buildings deserved “retention” (to use the word in the By-law). [120] In short, whatever the reservations about the City’s contention that the buildings were culturally insignificant, there was simply an absence of evidence to rebut it. [122]
Denhez characterizes the staff “situation” as “not straightforward”.
He writes:
The Board was not told why the Heritage Section, mandated to oversee the City’s heritage responsibilities, could offer no record of why the Heritage Overlay had been there for 37 years. After so many decades, it is unclear how the Heritage Section could conclude, within a mere day and a half, that the Overlay should be lifted…
The recommendations
Lawrence asked that the board required the city to keep its commitment to the promised heritage review of the rest of Lowertown East beyond the Wedge, to adopt a plan for Lowertown West Heritage Conservation District (HCD), to integrate heritage resources into new development, and to commit to evaluating buildings in Lowertown East. Denhez provided 6 “parenthetical” comments on issues, which are outside the range of the OMB:
A. Though the Board cannot use this zoning appeal to compel the City to prepare an HCD plan (for the Lowertown West HCD), under s. 41.1 of the OHA, the Board does take this opportunity to remind the City that such plans were indeed part of the OHA’s intent.
B. The Board was told neither how the Heritage Section is supposed to fulfill its mandate in the absence of monetary resources, nor why it would refuse nonmonetary resources, like the input of the BHSC.
C. The Board has no explanation for the apparent assumption, by the planners, that “development” could only come in one format – redevelopment.
D. The Board disagrees with the apparent assumption that the PPS heritage provisions refer only to properties designated under the OHA. That is not what the PPS itself says.
E. For decades, the City talked about revitalizing lowrise buildings along King Edward Avenue. At the time, its OP envisioned lowrise. That policy clearly failed. The Board was shown no evidence of an actual strategy to induce or guide such investment on any methodical basis. In the apparent absence of a strategy, the Board was not shown how anyone could have expected anything different, let alone a better outcome.
F. For that matter, the Board was not told of any City strategy to attract or guide investment to the improvement of existing buildings elsewhere in the undesignated heritage Overlay – or to the improvement of the building stock generally. Given the monetary stakes, the Board has no explanation. [124]
There are many other substantive issues addressed by Denhez’s 30-page decision, including environmental arguments for the reuse of existing buildings. It’s a good read. Denhez does not paint a flattering picture of the City of Ottawa Heritage Section, nor of the City for underfunding the Heritage Section, making it impossible to live up to their responsibly under the Ontario Heritage Act. Lowertown, in particular, suffers from neglectful heritage practices.
Heritage Committee members should not be quick to blame themselves for not having more background on these buildings.
Surely, it is not entirely the responsibility of the community to do the work of the City’s professional heritage staff. We work where we think there is risk, but we cannot guess where the next threat will be. Community members have prepared complete briefs on significant landmarks in our community, particularly York Street School, the Prayer House on Myrand Street, the Andrew Fleck Daycare Centre and the Union du Canada building, requesting designation. They sit on shelves or computer drives at City Hall, “in the queue”.
We need the support of partners–working partners with resources– who do not see Lowertown heritage as an impediment to development, but as an important cultural resource that enhances our city. Will councillors be moved by the Denhez Decision to provide increased resources to protect our heritage and cultural resources? Some Ontario planners are already citing his comments. We can only hope that the message hits home.
The numbers in brackets refer to the paragraph number in the text of the OMB decision. The full text of the decision is available at http://www.omb.gov.on.ca/ecs/CaseDetail.aspx?n=PL140212