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Can Municipal Property Standards By-laws
Protect Heritage Properties in Pickering from
Demolition by Neglect?
Association of Municipal Managers, Clerks and Treasurers of Ontario Municipal Management Diploma Research Report
September 24, 2011
Prepared by Kimberly Thompson, Manager, Municipal Law Enforcement Services
City of Pickering
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Table of Contents
Executive Summary Page 3 Scope and Methodology Page 5 Why is Heritage Preservation Important? Page 6 The City of Pickering’s Heritage Page 8 What is Demolition by Neglect? Page 11 Using Property Standards By-laws to Protect Heritage Buildings Page 12 City of Toronto Model By-law Page 20 Application to Federal or Provincial Lands Page 25 Conclusion Page 29 References Page 32
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Executive Summary
The City of Pickering is celebrating its Bicentennial this year. Contemplating 200 years of
history inevitably includes identifying some tangible examples of that history. Heritage
buildings provide that connection with the past. Heritage properties give communities a
sense of continuity and of place. They can represent the struggles of early settlers to
provide the most basic requirements of shelter, or showcase the wealth and stature of
prominent community members who built elaborate homes to create a lasting legacy of
their family’s history.
The Ontario Heritage Act provides for the designation of heritage buildings of architectural,
historical or cultural significance to assist in their preservation. However, one of the most
significant dangers heritage buildings face is the gradual decay of their structural integrity by
purposeful neglect. This issue is also termed “Demolition by Neglect”.
Assembling the support to designate a building under either Part IV or Part V of the Ontario
Heritage Act is difficult enough. However, the designation still does not ensure the building
will be protected and maintained.
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Some municipalities have enacted specific provisions in their Property Standards By-laws
that establish a higher standard of maintenance for heritage designated properties. This
report will review the types of provisions implemented, and the efforts made to ensure that
the requirements do not create an undue hardship on heritage property owners.
The City of Pickering faces a unique challenge in the protection of its heritage properties.
Many of the best examples of built heritage in Pickering are under the ownership of either
the Federal or Provincial governments. However, the disappearance of much of Pickering’s
heritage building inventory can be directly attributed to the neglect and poor management
of the federal government’s various branches. Residents have spent the last forty years
protesting what has been deemed the deliberate de-population of the rural lands, to
eliminate opposition to the proposed Pickering Airport which was the reason for the original
expropriations, forty years ago. Specific limitations exist regarding a municipal government
attempting to enforce its municipal by-laws against a higher level of government. This
limitation will also be reviewed in this report, with a conclusion outlined as to the best
options available to the municipality to ensure its rural heritage properties are provided the
protection they deserve.
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Scope and Methodology
The primary objective of this research paper is to evaluate if amending the Property
Standards By-law in the City of Pickering will assist in preserving Pickering’s heritage
buildings and preventing demolition by neglect.
The scope of this review includes buildings in both private and public ownership, and how
the application of the Property Standards By-law differs between the two. Extensive web-
based legislative research was conducted including a review of municipalities that have
amended their Property Standards By-laws to incorporate provisions relating to heritage
buildings, as well as a review of the Ontario Building Code Act and the Ontario Heritage Act.
In order to further address the issue, this research paper also relied on Reports to Council,
newspaper articles, staff reports, case law and legal opinions.
The end result concludes that while amending Property Standards By-laws to protect
heritage buildings is a worthwhile undertaking, it will have little impact on preserving the
City of Pickering’s Heritage Building inventory.
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Why is Heritage Preservation Important?
Rehabilitation of heritage properties and their continued maintenance has many positive
effects for municipalities. Heritage resources embody the way of life of the people who
created them. They chart and display our social, economic and cultural history, and help to
define local, provincial and national identities in immediate, tangible form. They also give
shape to and help to establish unique community character in urban and rural
neighbourhoods and landscapes. Retention of these unique, built signatures of inhabitants
from the past signifies a sense of continued community pride and commitment.
The rehabilitation of heritage buildings has been shown to stimulate the economy, revitalize
communities and create jobs. National Trust studies in the United States have shown that
every dollar invested in heritage conservation generated nearly 27 dollars of other
reinvestment in local economies. Conservation efforts create well-paying jobs in skilled
labour, design and promotion. The renovation of residential properties holds a greater
share of the gross domestic product than new home construction. Renovated units in
heritage structures are much desired for their unique spatial characteristics and often
command more rent than their contemporary counterparts.
Research indicates that the value of historic properties, especially within historic districts,
appreciate at rates greater than the local market overall and faster than similar non-
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designated properties. Across Canada heritage buildings have performed much better than
average in the marketplace and the price of heritage houses was less affected by cyclical
downturns in property values.
Heritage conservation is also a sustainable community practice in that it consumes less than
half the energy of new construction, reuses existing municipal infrastructure and keeps
substantial quantities of viable building materials out of land fill sites.
Conserving historic places also enhances a municipality’s cultural life: historic places tend to
bring together people of all ages; historic places often become focal points for important
community events and celebrations; historic places and heritage planning provide
opportunities for public services and volunteerism; and protecting historic places promotes
architectural diversity.
The communal value of preserving heritage structures has been established by international
bodies. The Venice Charter, 1964, established that: “Imbued with a message from the past,
the historic monuments of generations of people remain to the present day as living
witnesses of their age-old traditions. People are becoming more and more conscious of the
unity of human values and regard ancient monuments as a common heritage. The common
responsibility to safeguard them for future generations is recognized. It is our duty to hand
them on in the full richness of their authenticity.”
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The UNESCO World Heritage Convention of 1972 established that heritage be given “a
function in the life of the community and to integrate the protection of that heritage into
comprehensive planning programs”.
Heritage buildings are often the foundation on which a community builds its own unique
identity. However, in many cases, an understanding and appreciation of their value is not
recognized until it’s too late. The City of Pickering has experienced a number of issues in
preserving its built heritage, and in turn, establishing its own unique identity and centre.
The City of Pickering’s Heritage
The Township of Pickering dates back to 1811. What is now the urban, central core of
Pickering was actually the last area to be developed. Due to absentee landlords being
granted the majority of lands in the southern portion of the township, initial settlements in
Pickering were located in the northern part of the township. Thriving hamlets existed in
Claremont, Brougham, Whitevale, Greenwood and Greenriver, with the majority of the
town’s population residing within or in the surrounding areas of these hamlets. The first
township office was located in the hamlet of Brougham, in what is now the Brougham
Community Centre. Numerous examples of early Canadian architecture are found
throughout the township, from log cabins, to fieldstone and frame farmhouses, to ornate
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brick homes with unique features, such as the Bentley House in Brougham. The Ontario
County Atlas of 1877 features a number of prosperous farms still in existence to this date.
This expanse of heritage inventory, rather than a concentration within a smaller,
manageable area, is part of the difficulty in identifying and preserving Pickering’s heritage
properties. Many of the most significant properties are rural, agricultural properties which
don’t seem to convey the same weight of importance as public or commercial spaces easily
identified by the community. In addition to the structures on the property, the “historic
landscape” which provides the context for the heritage significance, is even more difficult
for the general public to grasp.
In March 1972, one of the most significant events in the City’s history took place. The
Federal government announced the expropriation of 7,350 hectares of land in the northern
part of Pickering, as well as parts of Markham and Uxbridge, for the construction of a new
international airport. The Province expropriated its own large acreages, for the construction
of the associated city of Seaton. Residents organized to form “People or Planes” to vocalize
opposition to the expropriation of their land for an airport that was not required. This
strong community activism has succeeded in delaying any action on an airport for forty
years. However, it has also left the lands in limbo, with poor management and substantial
losses of heritage properties due to neglect. The government’s actions have been called
“Bulldozer by Stealth” by members of Land over Landings, a residents group opposing the
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airport and the neglect of the buildings on airport lands. (“Bulldozer by Stealth”
newsdurhamregion.com, accessed March 14, 2011. http://newsdurhamregion.com/articlePrint/169612)
The creation of the Region of Durham in 1974, and the inclusion of the historic Pickering
Village as part of the newly formed Town of Ajax, struck a substantial blow to the existence
of a central Pickering core recognized by all residents. Without Pickering Village, the Town
of Pickering (now the City of Pickering) lacked a focal point to build a community identity in
the urban portion of the City. The ongoing efforts of City staff to develop an identifiable
“downtown core” without the benefit of an historic downtown area, demonstrates clearly
the role heritage buildings play in defining a sense of place.
Over time, development in the southern part of Pickering proceeded with the usual impact
on existing historic architecture, with the loss of a number of heritage buildings to
commercial and residential developments. As awareness of the importance of heritage
building preservation increased, and the provincial government’s programs to designate
properties under the Ontario Heritage Act were better promoted, the Town of Pickering’s
Local Architectural Conservation Advisory Committee began designating individual heritage
properties, as well as the hamlet of Whitevale as a Heritage Conservation District. To date,
16 properties have been designated individually, in addition to the creation of the Heritage
Conservation District. Heritage Pickering, as the City of Pickering’s Local Architecture
Conservation Advisory Committee came to be known, has also facilitated the preparation of
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a Heritage Register, with a listing of 107 properties of Cultural Heritage Value on the Federal
Airport Lands, and 22 Cultural Heritage Properties on the provincially owned Seaton lands.
Work will continue on developing a Heritage Register of properties throughout the
remaining areas of the City of Pickering.
What is Demolition by Neglect?
Demolition by Neglect is defined as the destruction of a building through abandonment
or lack of maintenance. There are a number of scenarios that contribute to the neglect of
historic properties, including impoverished owners, difficulties arising from unsettled
estates, absentee landlords, or simply an uncaring attitude on the part of an owner.
However, there is an even more disturbing trend: an owner’s intentional use of “demolition
by neglect” to circumvent legislation aimed at protecting heritage properties. (“Demolition by
Neglect” Connecticut Trust for Historic Preservation, accessed March 14, 2011,
http://www.cttrust.org/index.cgi/1050 )
The types of deficiencies identified as “Demolition by Neglect” include any structural
deficiency or a deficiency in a building part which left unrepaired could lead to the
deterioration of the building’s structural frame. A building is also identified as “Demolition
by Neglect” if it is open to entry by vandals or vagrants. (Demolition by Neglect: Repairing Buildings
by Repairing Legislation, Appendix A, 2007, Anna Martin, Georgetown Law,
http://scholarship.law.georgetown.edu/hpps_papers/17 )
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Criteria for determining “Demolition by Neglect” include the following conditions:
1. The deterioration of exterior walls or other vertical supports;
2. The deterioration of roofs or other horizontal members;
3. The deterioration of exterior chimneys;
4. The deterioration of exterior plaster or mortar;
5. The ineffective weatherproofing of exterior walls, roofs and foundations,
including broken windows and doors; or
6. The serious deterioration of any documented exterior architectural feature or
significant landscape feature which in the judgment of the commission produces
a detrimental effect upon the character of the district. (Detroit Historic District
Commission, Articles I & II, http://www.ci.detroit.mi.us/historic/ordinance2.htm)
Using Property Standards By-laws to Protect Heritage Buildings
Under the authority of section 15.1 of the Building Code Act, municipalities may pass by-laws
prescribing minimum standards for maintenance and occupancy of properties. These
standards ensure residents and businesses are responsible for the maintenance of their
properties and respectful of their neighbours so that all residents may enjoy the use of their
properties. Each municipality’s by-law may differ slightly but a property standards by-law
may contain provisions regulating the following:
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a) Exterior Property Areas such as driveways parking areas, paths and walkways,
ground cover, erosion control;
b) Lighting fixtures;
c) Grass, trees, bushes, hedges and other landscaping;
d) Swimming pools, wading pools, hot tubs and ponds;
e) Snow clearing and disposal;
f) Retaining Walls – maintenance and structural safety;
g) Towers, masts, antennae;
h) Foundation Walls, Columns, Beams;
i) Doors, Windows, Shutters, Hatchways in good repair, working order;
j) Stairs, Floors, Landings, Verandahs, Porches, Decks, Balconies;
k) Roofs, Roof Structures such as chimneys;
l) Exterior Surfaces painted or weather-resistant material; in good repair
m) Graffiti removal
n) Damage repair caused by fire or other causes;
o) Requiring demolition of unsafe structures;
p) Interior Surfaces in good repair
q) Elevators and Elevating Devices;
r) Ventilation Systems;
s) Heating and Mechanical Systems, requirement to provide heat;
t) Potable and hot water, adequate supply;
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u) Electrical Systems in good repair and operational:
v) Drainage and Plumbing systems, interior and exterior:
w) Eaves troughs, downpipes, sump pumps:
x) Refuse Disposal, exterior garbage and debris;
y) Minimum standards for residential occupancy relating to minimum room sizes for
habitable rooms, egress
Municipalities have the ability to enforce the standards prescribed in their property
standards by-laws through powers of inspection, right of entry onto property, the issuance
of orders to comply, and the ability to either lay charges for failing to comply with an order
and/or undertake the work required to remedy the situation and recover the costs as taxes.
The Building Code Act does require that should a municipality choose to pass a Property
Standards By-law, it must appoint a Committee to hear appeals relating to property
standards orders issued. A very formal process is established for the issuance of the order,
time required for service and appeal, methods of service acceptable, the appeal process,
etc.
From the extensive list of potential regulations contained in property standards by-laws
outlined previously, it may appear that a general property standards by-law should resolve
most issues regarding property maintenance. However, property standards by-laws are
somewhat flawed when utilized for the protection of heritage properties based on the
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language in the Building Code Act, Section 15(1)(3) which specifies the following provisions
in establishing a property standards by-law:
Standards for Maintenance and Occupancy
(3) The Council of a municipality may pass a By-law to do the following things if an Official
Plan that includes provisions relating to property conditions is in effect in the municipality or
if the Council of the municipality has adopted a policy statement as mentioned in Subsection
(2):
1. Prescribing standards for the maintenance and occupancy of property within the
municipality or within any defined area or areas and for prohibiting the occupancy or
use of such property that does not conform to the standards.
2. Requiring property that does not conform to the standards to be repaired and
maintained to conform to the standards or the site to be cleared of all buildings,
structures, debris or refuse and left in a graded and leveled condition. 1997, c. 24, s.
224 (8).
The provision outlined in section 15 (3) (2) is of particular concern, as “enforcement action
taken against a property containing a designated heritage building could result in its
potential loss through “required” demolition. Prior to 2005, demolition of designated
heritage buildings and structures was also permitted “as of right” and could not be
effectively prevented. “(City of Hamilton, Staff Report, Minimum Standards for the Maintenance of
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Heritage Attributes of Designated Heritage Properties under Parts IV and V of the Ontario Heritage Act, August
17, 2007)
Property Standards By-laws were also unable to specify methods of repair requiring the use
of materials which were compatible with heritage features.
The Ontario Heritage Act was amended in 2005 to permit municipalities with existing
Property Standards By-laws to prescribe additional minimum standards for the maintenance
of heritage attributes relevant to heritage properties designated under Parts IV and V of the
Ontario Heritage Act. While property standards by-laws apply to all properties, additional
provisions specific to heritage designated properties provide additional protection against
the loss of heritage features by requiring repairs and maintenance needed to conserve their
heritage attributes in a manner that does not detract from the heritage and architectural
integrity of the building. Section 35.3 of the Ontario Heritage Act relates to individually
designated properties and provides the following:
35.3 (1) If a by-law passed under Section 15.1 of the Building Code Act, 1992 setting
out standards for the maintenance of property in the municipality is in effect
in a municipality, the Council of the municipality may, by by-law,
(a) Prescribe minimum standards for the maintenance of the heritage
attributes of property in the municipality that has been designated by
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the municipality under Section 29 or by the Minister under Section
34.5; and
(b) Require property that has been designated under Section 29 or 34.5
and that does not comply with the standards to be repaired and
maintained to conform to the standards. 2005, c. 6, s. 27.
(2) Sections 15.2, 15.3, 15.4, 15.5 and 15.8 of the Building Code Act, 1992
apply with necessary modifications to the enforcement of a By-law
made under Subsection (1). 2005, c. 6, s. 27.
Section 45.1 of the Ontario Heritage Act outlines similar provisions in relation to Heritage
Conservation Districts, as follows:
45.1 (1) If a By-law passed under section 15.1 of the Building Code Act, 1992, setting
out standards for the maintenance of property in the municipality is in effect
in a municipality, the Council of the municipality may, by By-law,
(a) Prescribe minimum standards for the maintenance of heritage
attributes of property situated in a heritage conservation district
designated under this Part; and
(b) Require property that is situated in a heritage conservation district
designated under this Part and that does not comply with the
standards to be repaired and maintained to conform to the standards.
2005, c. 6, s. 34.
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A heritage attribute may be explained as a “character defining element” which may include
principal features, architectural styles, or specific decorative details that contribute to the
cultural heritage significance of a designated heritage property. Heritage attributes may
include details such as decorative woodwork, windows, stained glass, architectural features
such as porches or belvederes, specific references to the façade or roof style, and may
extend to outline interior features such as paneling, plaster work, etc.
In Heritage Conservation Districts the Guidelines prepared for the district will include
themes, styles, types of architectural features, materials, etc., to be utilized to define what
constitutes a heritage attribute.
The City of St. Thomas was one of the first to develop a Property Standards By-law
incorporating specific provisions relating to designated heritage properties. However, this
by-law was struck down by the Ontario Superior Court of Justice as being ultra vires to the
powers granted to the municipality under the Ontario Heritage Act. The municipality chose
to define within the property standards by-law what criteria were considered “character
defining elements”, rather than relying on the actual designating by-laws. The judge ruled
that the “character defining elements” must be described within the Designation By-law (or
the Heritage Conservation District Plan).
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This ruling determined that the heritage attributes of a designated property must be
outlined in the individual designating by-law to be enforceable under the provisions of a
property standards by-law. Municipalities that choose to pass amended property standards
by-laws to include specific provisions relating to the protection of heritage attributes will
need to conduct a thorough review of the designating by-laws for each individual
designated property. In older designating by-laws, the information is sometimes vague or
incomplete. This will require the repeal of the original designating by-law and the
preparation of a new more thorough designation by-law providing specific details regarding
the heritage attributes of the property.
The cities of Mississauga, Toronto, Kingston, Hamilton, London and Kitchener have all
amended their Property Standards By-laws to include specific provisions relating to heritage
designated properties. Most municipalities are using the City of Toronto or City of
Mississauga’s by-laws as their model.
The majority of Property Standards By-laws amended to include the protection of heritage
attributes incorporate provisions which:
1) Prohibit the demolition of heritage designated properties, except in
accordance with the Ontario Heritage Act;
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2) Require the maintenance and repair of heritage attributes of designated
properties; only permitting replacement with specific permission;
3) Where heritage attributes cannot be repaired, requiring replacement
materials to be the same type as the original material and of the same design,
colour, texture and installed in such a manner as to replicate the original; and
4) Provide specific instructions for securing vacant or damaged heritage
properties to ensure minimal damage and provide some direction to protect
the aesthetics of the property.
Some municipalities, such as the City of Hamilton, City of Toronto, and City of London, have
also included requirements for vacant buildings to continue to have utilities connected to
provide adequate heat and ventilation to prevent damage caused by fluctuating
temperatures and humidity. This is particularly important, as it is quite often the ongoing
freezing and thawing that causes significant damage to vacant heritage buildings, regardless
of how secure or watertight they are made. The buildings on the Federally owned airport
lands are a perfect example of this, as while they are secure, the ongoing temperature
changes and lack of ventilation can cause mould. The Federal Government’s property
managers continually utilize this as a justification to demolish heritage properties.
The provisions contained in the City of Toronto’s by-law, and utilized by many other
municipalities as their model, is as follows:
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“Heritage Property Standards
§ 629-43. Definitions.
As used in this article, the following terms shall have the meanings indicated: HERITAGE ATTRIBUTES: A. The attributes or features of property, buildings or structures that contribute to the
property’s cultural heritage value or interest that are defined or described or that can be reasonably inferred:
(1) In a by-law designating a property passed under section 29 of the Ontario Heritage
Act and identified as heritage attributes, values, reasons for designation, or otherwise;
(2) In a Minister’s order made under section 34.5 of the Ontario Heritage Act and identified as heritage attributes, values, reasons for designation or otherwise;
(3) In a by-law designating a heritage conservation district passed under section 41 of the Ontario Heritage Act and identified as heritage attributes, values, reasons for designation or otherwise; or
(4) In the supporting documentation required for a by-law designating a heritage conservation district, including but not limited to a heritage conservation district plan, assessment or inventory, and identified as heritage attributes, reasons for designation or otherwise.
B. The elements, features or building components including, roofs, walls, floors, retaining
walls, foundations and independent interior structures and structural systems that hold up, support or protect the heritage values and attributes and without which the heritage values and attributes may be at risk.
PART IV HERITAGE PROPERTY — Real property, including all buildings and structures thereon, that has been designated by the City under section 29 or by the Minister under section 34.5 of the Ontario Heritage Act.
PART V HERITAGE PROPERTY — Real property, including all buildings and structures thereon, located within a heritage conservation district that has been designated by the City under section 41 of the Ontario Heritage Act.
PROPERTY — A building or structure or part of a building, or structure and includes the lands and premises appurtenant thereto and all mobile homes, mobile buildings, mobile structures, outbuildings, fences and erections thereon whether theretofore or hereafter
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erected, and includes vacant property, Part IV Heritage Properties and Part V Heritage Properties. § 629-44. Minimum standards.
In addition to the minimum standards for the maintenance and occupancy of property in the City as set out in this chapter, the owner or occupant of a Part IV Heritage Property or a Part V Heritage Property shall: A. Maintain, preserve and protect the heritage attributes so as to maintain the heritage
character, visual and structural heritage integrity of the building or structure. B. Maintain the property in a manner that will ensure the protection and preservation of
the heritage values and attributes. § 629-45. Repair of heritage attributes.
A. Despite any other provision of this chapter, where a heritage attribute of a Part IV heritage property or a Part V heritage property can be repaired, the heritage attribute shall not be replaced and shall be repaired:
(1) In a manner that minimizes damage to the heritage values and attributes; (2) In a manner that maintains the design, colour, texture, grain or other distinctive
features of the heritage attribute; (3) Using the same types of material as the original and in keeping with the design,
colour, texture, grain and any other distinctive features of the original; and (4) Where the same types of material as the original are no longer available, using
alternative materials that replicate the design, colour, texture, grain or other distinctive features and appearance of the original material.
§ 629-46. Replacement of heritage attributes.
A. Despite any other provision of this chapter, where a heritage attribute of a Part IV heritage property or a Part V heritage property cannot be repaired, the heritage attribute shall be replaced:
(1) Using the same types of material as the original; (2) Where the same types of material as the original are no longer available, using
alternative materials that replicate the design, colour, texture, grain or other distinctive features and appearance of the original material; and
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(3) In such a manner as to replicate the design, colour, texture, grain and other
distinctive features and appearance of the heritage attribute. § 629-47. Clearing and leveling of heritage properties.
Despite any other provision of this chapter, or the Building Code Act, 1992, no building or structure on a Part IV heritage property or a Part V heritage property may be altered or cleared, including but not limited to removed, demolished or relocated except in accordance with the Ontario Heritage Act.
§ 629-48. Vacant and damaged designated heritage properties.
A. Despite § 629-24D, where a Part IV heritage property or a Part V heritage property remains vacant for a period of 90 days or more, the owner shall ensure that appropriate utilities serving the building are connected as required in order to provide, maintain and monitor proper heating and ventilation to prevent damage to the heritage attributes caused by environmental conditions.
B. Despite § 629-24B, the owner of a vacant Part IV heritage property or a Part V heritage
property shall protect the building and property against the risk of fire, storm, neglect, intentional damage or damage by other causes by effectively preventing the entrance to it of all animals and unauthorized persons and by closing and securing openings to the building with boarding: (1) That completely covers the opening and is properly fitted in a watertight manner
within the side jambs, the head jamb and the exterior bottom sill of the door or window opening so the exterior trim and cladding remains uncovered and undamaged by the boarding;
(2) That is fastened securely in a manner that minimizes damage to the heritage
attributes and the historic fabric and is reversible; (3) In a manner that minimizes visual impact.
C. Despite § 629-24B(2), no window, door or other opening on a Part IV heritage property or Part V heritage property shall be secured by brick or masonry units held in place by mortar unless required by a Municipal Standards Officer.”
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The City of Toronto’s property standards by-law works well as a model for the
municipalities that have adopted similar by-laws as it deals with the primary issue large
urban centers face in relation to protecting their designated heritage properties. The
major issue faced by these types of cities is the threat to the historic downtown
properties which can be of more interest for the value of the land for re-development
than for the continued preservation of the historic building located on the site. This
can apply to both commercial and residential properties. It is these buildings that
often face neglect, as they are left vacant to deteriorate to a point where demolishing
them can be justified.
The City of Pickering does not have an historic downtown area containing stately
designated properties. The limited number of designated heritage properties are
generally in private ownership and well-maintained by property owners who exhibit
great pride in their heritage value. Of the sixteen designated heritage properties, only
one is a commercial property in the urban area of Pickering. Post Manor is currently
vacant and there are valid concerns regarding whether the current property owner
intends to adequately maintain the building to ensure its preservation. For this
property alone, it is worthwhile for the City of Pickering to pursue an amendment to its
property standards by-law in relation to designated heritage properties.
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In some cases, municipalities such as the City of Kitchener, and City of Brampton have
chosen to enact specific maintenance requirements within their Property Standards
By-laws applicable to vacant heritage buildings only. This ensures the key buildings
that are at risk, which are quite often vacant commercial buildings in the downtown
areas, are protected, while designated properties which are occupied by residents or
businesses do not face unnecessary financial hardship due to strict maintenance
standards.
Application to Federal or Provincial Lands
The most critical issue in the City of Pickering’s heritage preservation efforts is the
ongoing neglect of a large number of properties owned by the Federal Government
due to the expropriation of lands for the proposed Pickering Airport. The legality of a
municipal government enforcing its by-laws on properties owned by the Federal
Government is a significant issue.
Lands owned by the Federal Crown are governed by section 91(1A) of the Constitution
Act, 1867, which provides Parliament with exclusive legislative authority over the public
debt and public property.
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The applicability of municipal by-laws on Federal lands was addressed by the Ontario
Court of Appeal in Greater Toronto Airports Authority v Mississauga (City) (2000), 16
M.P.L.R. (3d) 213 (Ont. C.A.), leave to appeal refused [2001] SCCA No 83 (“GTAA”). In
GTAA, the Ontario Court of Appeal held that “Provincial laws, such as building code
statutes, whose very subject is land or property development, cannot apply to federal
Crown property.” This determination would apply to Property Standards By-laws, as
they fall under the provisions of the Building Code Act.
In the same case, (GTAA), the court also clarified that “Property under s.91 (1A) means
property in its broadest sense. It includes partial interests such as the Federal Crown’s
reversionary interest in the land at Pearson Airport. Federal property ceases to be
within the exclusive jurisdiction of Parliament under s. 91(1A) only when it is
transferred to another person by the conveyance of a fee simple.” This means that the
fact that the federal Crown land is leased to a tenant does not remove the land from
the scope of “public property” under s. 91(1A).
This judgment means that even if all of the 107 properties on Federal lands listed on the
Heritage Register as being of Cultural Heritage Value were to be designated under the
Ontario Heritage Act, the City of Pickering could not enforce the provisions of its
Property Standards By-law upon them.
Can Municipal Property Standards By-laws Protect Heritage Properties in Pickering from Demolition by
Neglect?
27
In 2005, the City of Pickering attempted to designate two heritage properties owned
by the Federal government, the Tullis Cottage and Ever Green Villa. Both of these
properties had belonged to the prominent Barclay family and were on a list of
properties scheduled for demolition. The designation in 2005 was the conclusion of a
four year battle to address the proposed demolition of these buildings and enact some
form of permanent protection for them. The response from the Federal Government
representatives was to provide notice to the City of Pickering that it had no jurisdiction
to proceed with the designation and could not register the enacting by-law on title.
Provincially owned heritage properties are also unable to be designated by a
municipality, as Section 26.1 of the Ontario Heritage Act specifically excludes lands
owned by the Crown in right of Ontario or by a prescribed public body, as outlined in
section 25.2 (a).
From the legal information outlined above, it is clear that municipalities have no ability
to compel the Provincial or Federal governments to act in a responsible manner to
ensure properties in their ownership, identified as being of heritage value, are
preserved.
The recent announcement by the Federal Government of the need to retain the
expropriated Pickering lands for future airport use, possibly as soon as 2027, ensures
Can Municipal Property Standards By-laws Protect Heritage Properties in Pickering from Demolition by
Neglect?
28
these lands continue to be at risk. It makes complete sense to retain such a substantial
parcel of land for this purpose, as acquiring adequate lands for an airport in future
would be a significant obstacle. However, the amount of land expropriated by the
federal government for this purpose is quadruple the amount required for the future
airport. An appropriate strategy for the management and use of the lands not directly
required for the future airport should have been put in place years ago. Instead,
properties continue to deteriorate and the demolition of neglected buildings goes on.
As recently as August 15th, local news stories continue to document the City of
Pickering’s efforts to gain cooperation from the Federal Government in reviewing
heritage buildings proposed for demolition. (Demolition Crews survey Pickering Federal Lands,
durhamregion.com, accessed August 15, 2011, http://www.durhamregion.com/news/article/1062821--
demolition-crews-survey-pickering-federal-lands )
Despite the fact that the poor maintenance conditions are the result of their own
(in)action, the Federal government continues to create an annual list of properties
scheduled for demolition on the airport lands. The 2011 list includes a historic stone
home on the east side of Brock Road, between the seventh and eighth concessions.
This substantial farm property dates back to the 1850’s and is on the opposite side of
the road and miles away from any future airport. In the absence of tenants, Transport
Canada failed to notice the furnace oil had run out, so when the heat shut off and the
pipes burst the decision was made to leave the property vacant. One cannot help but
Can Municipal Property Standards By-laws Protect Heritage Properties in Pickering from Demolition by
Neglect?
29
question the senseless waste, as such a property is certainly of value to someone
willing to purchase and restore it. Transferring the property into private ownership
would have no impact on the plans for a future airport and would ensure the City of
Pickering could designate the property under the Ontario Heritage Act and seek an
owner interested in restoration. Unfortunately, this example continues to be the
normal practice for heritage properties located on the federal airport lands.
Conclusion
Legislation and information that recognizes the importance of preserving heritage
buildings has progressed substantially over the past twenty years. Municipal planners
are well educated in the benefits of heritage preservation and dedicate substantial
resources to identifying buildings of cultural heritage value and developing policies for
their protection. Communities are focusing on developing Cultural Strategic Plans
which include references to the importance of identifying and preserving individual
community heritage resources to support a community’s unique identity.
Municipalities participate in the programs and educational opportunities provided by
the various provincial ministries to expand their knowledge of heritage preservation
methods and tools.
Can Municipal Property Standards By-laws Protect Heritage Properties in Pickering from Demolition by
Neglect?
30
However, despite specific federal and provincial bodies dedicated to heritage
preservation, it has been a frustrating experience for residents of the City of Pickering
fighting their own government to protect their rural architectural heritage.
Legally, local governments have no ability to protect buildings in their municipality that
are owned by either the federal or provincial government. Despite various studies
prepared by consultants for the federal government identifying buildings of cultural
heritage value, the day to day management of the properties on the federal and
provincial governments’ lands has demonstrated a complete lack of will to ensure
heritage buildings receive the maintenance required for their protection.
The conclusion reached upon the review of the information outlined in this research
paper clearly establishes that while implementing amendments to existing Property
Standards By-laws to create minimum maintenance standards for the protection of
designated heritage properties is a viable and recommended course of action for most
municipalities, this option will not provide the most endangered heritage buildings in
the City of Pickering any protection whatsoever due to the fact that they remain under
federal government ownership.
The City of Pickering, its community groups and residents, must continue to lobby the
federal government to be a conscientious steward of the lands it has controlled for
Can Municipal Property Standards By-laws Protect Heritage Properties in Pickering from Demolition by
Neglect?
31
forty years. Unfortunately, with the original 700 residences now reduced to
approximately 150, (107 of which are on the cultural heritage inventory) it is clear the
federal government is either unable or unwilling to dependably manage this
disappearing connection to Pickering’s agricultural past.
Can Municipal Property Standards By-laws Protect Heritage Properties in Pickering from Demolition by
Neglect?
32
References
Alberta Law Review, Vol. 14, 1976, University of Alberta, Faculty of Law, 1976
Building Code Act, Building Code Act, 1992, Section 15
http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_92b23_e.htm
“Bulldozer by Stealth” newsdurhamregion.com, accessed March 14, 2011.
http://newsdurhamregion.com/articlePrint/169612
City of Hamilton, Staff Report, Minimum Standards for the Maintenance of Heritage
Attributes of Designated Heritage Properties Under Parts IV and V of the Ontario
Heritage Act”, August 17, 2007
City of Kingston, Report to Administrative Policies Committee, Update to Property
Standards By-law to Better Protect Heritage Properties, May 13, 2010
City of London, Property Standards By-law CP-16, Consolidated June 28, 2010
City of Mississauga, Property Standards By-law 654-98, as amended,
Can Municipal Property Standards By-laws Protect Heritage Properties in Pickering from Demolition by
Neglect?
33
City of Pickering, Correspondence from Aird and Berlis to City Solicitor, dated August 26,
2008, Applicability of Municipal Zoning and Site Alteration By-laws to Federal
Property
City of Pickering, Council Meeting Minutes, November 7, 2005
City of Pickering, Local Architectural Conservation Advisory Committee Minutes, November
16, 2004
City of Toronto, Staff Report, Enhanced Property Standards for Designated Heritage
Buildings, January 17, 2007
City of Toronto, Municipal Code, Property Standards, as amended by By-law 1027-2007
“Demolition by Neglect” Connecticut Trust for Historic Preservation, accessed
March 14, 2011, http://www.cttrust.org/index.cgi/1050
“Demolition by Neglect: Repairing Buildings by Repairing Legislation”, Appendix A, 2007,
Anna Martin, Georgetown Law, accessed on-line approximately March 2011,
http://scholarship.law.georgetown.edu/hpps_papers/17
“Demolition Crews survey Pickering Federal Lands”, durhamregion.com, accessed August
15, 2011, http://www.durhamregion.com/news/article/1062821--demolition-crews-
survey-pickering-federal-lands
Can Municipal Property Standards By-laws Protect Heritage Properties in Pickering from Demolition by
Neglect?
34
“Detroit Historic District Commission, Articles I & II,”
http://www.ci.detroit.mi.us/historic/ordinance2.htm
Greater Toronto Airports Authority v Mississauga (City) (2000), 16 M.P.L.R. (3d) 213 (Ont.
C.A.), leave to appeal refused [2001] SCCA No 83 (“GTAA”).
James, Isa, Planner II, Planning & Development Department, City of Pickering, in
conversation August 16, 2011
Ontario Heritage Act, R.S.O. 1990, CHAPTER O.18, http://www.e-
laws.gov.on.ca/html/statutes/english/elaws_statutes_90o18_e.htm
“Saving the District’s Historic Properties from Demolition by Neglect”, Sakina B. Thompson,
May 14, 2002, Georgetown Law Historic Preservation Papers Series, Paper 14,
(http://scholarship.law.georgetown.edu/hpps_papers/14)