Can Municipal Property Standards By-laws Protect Heritage Properties in Pickering from Demolition by Neglect?

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1 Can Municipal Property Standards By-laws Protect Heritage Properties in Pickering from Demolition by 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

2 2 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 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

3 3 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.

4 4 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.

5 5 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 webbased 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.

6 6 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-

7 7 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.

8 8 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 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

9 9 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

10 10 airport and the neglect of the buildings on airport lands. ( Bulldozer by Stealth newsdurhamregion.com, accessed March 14, 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

11 11 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 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, ) 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, )

12 12 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, 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:

13 13 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;

14 14 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

15 15 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

16 16 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

17 17 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.

18 18 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).

19 19 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;

20 20 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:

21 21 Heritage Property Standards 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

22 22 erected, and includes vacant property, Part IV Heritage Properties and Part V Heritage Properties 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 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 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

23 23 (3) In such a manner as to replicate the design, colour, texture, grain and other distinctive features and appearance of the heritage attribute 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 Vacant and damaged designated heritage properties. A. Despite D, 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 B, 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 B(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.

24 24 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.

25 25 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.

26 26 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.

27 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

28 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 15 th, 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, 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

29 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.

30 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

31 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.

32 32 References Alberta Law Review, Vol. 14, 1976, University of Alberta, Faculty of Law, 1976 Building Code Act, Building Code Act, 1992, Section 15 Bulldozer by Stealth newsdurhamregion.com, accessed March 14, 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 , as amended,

33 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 Demolition by Neglect Connecticut Trust for Historic Preservation, accessed March 14, 2011, Demolition by Neglect: Repairing Buildings by Repairing Legislation, Appendix A, 2007, Anna Martin, Georgetown Law, accessed on-line approximately March 2011, Demolition Crews survey Pickering Federal Lands, durhamregion.com, accessed August 15, 2011,

34 34 Detroit Historic District Commission, Articles I & II, 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, Saving the District s Historic Properties from Demolition by Neglect, Sakina B. Thompson, May 14, 2002, Georgetown Law Historic Preservation Papers Series, Paper 14, (