The following letter to Lord Mayor Gary Zalepa and members of NOTL council was submitted to The Lake Report for publication.

Having recently retired after 45 years of practicing law, specializing in land use planning and development, I have read with interest the various submissions to council and letters to the editor with respect to heritage matters in the Old Town.

It should be understood by everyone that any development application must be evaluated on the basis of the policies in force and effect at the time that the application is made.

This fundamental principle of fairness has been reiterated in many Ontario Municipal Board, Ontario Land Tribunal and court decisions.

If that were not the case, it would otherwise be unfair for an applicant, in response to the submission of an application, to have to meet new restrictive policies which could be enacted by a council in response to an application that is opposed by the surrounding residents.

Therefore, in order to better protect the Old Town, council should use the powers that it has under the Ontario Heritage Act to formulate and specify what the rules are with respect to heritage buildings and heritage cultural landscapes.

It is my understanding that some work in this regard has begun, but I think that council should prioritize this process.

Much of the “protection” previously provided by the Ontario Heritage Act, was in the form of bylaws designating individual buildings under Part IV of the Ontario Heritage Act.

The problem is that many of these designating bylaws were passed a number of years ago, without the current legal requirements for designating bylaws to be specific as to the heritage attributes of the building or the landscape.

In a recent matter that I observed, those in opposition to an application relied upon a designating bylaw to protect not only the features of the building, but also the outdoor, landscape space on the property.

They attempted to rely upon a designating bylaw passed some years ago, which was very specific on the heritage attributes of the building, but was silent on any heritage attributes of the outdoor landscaped space.

Rather than just passing designating bylaws on a property by property basis under Part IV of the act, Part V of the act provides for a detailed process resulting in a comprehensive heritage plan for an area, called a heritage conservation district plan.

From my experience in Toronto, a few years ago, city council prepared a list (based upon input from planning staff) of some 150 areas of the city that could be considered to be designated under Part V of the act.

To date, approximately 40 of those areas now have approved heritage conservation district plans in place.

In Niagara-on-the-Lake, we do not need to prepare such a list. Rather, we need to focus on our priority heritage area, which is the Old Town.

As I understand it, the town does have a dated heritage conservation district plan, but it only covers part of the Old Town and it was adopted long before the current Part V rules were in place.

In a case involving heritage matters in Port Dalhousie, the residents opposed to a development application proposed for the Main Street, tried to use a heritage conservation district plan adopted a number of years ago to oppose the development.

The Ontario Municipal Board held that because that plan was not enacted pursuant to the more recent procedures mandated under the act for Part V for studies, plans and public meetings, it could be given no weight in making its decision on the application.

So, in order to give the town and its residents the full protection of the Ontario Heritage Act, all efforts should be made to follow the process under the Ontario Heritage Act to adopt a new, comprehensive heritage conservation district plan for the Old Town.

In doing this, the town will not only have the strongest means available to protect the town’s heritage buildings and cultural heritage landscapes, but it will also provide an applicant with the information needed to evaluate what heritage features must be taken into consideration before submitting a development application.

Patrick Devine
NOTL