PICTON, ON — The Naval Marine Archive: The Canadian Collection, a prominent charity in Picton, Ontario, announced on May 13 that it had served its motion for leave to appeal a ruling of the Ontario Municipal Board (OMB) regarding the controversial Heritage District bylaw passed by Prince Edward County council in 2013.
The bylaw proclaims eight blocks of the town’s main commercial street to be a “heritage conservation district”. The zone includes two modern supermarkets, several fast-food restaurants such as McDonald’s and Tim Hortons, and three gas stations. The bylaw forbids property owners within the affected district from making alterations to the exterior of their buildings without approval from the municipality’s planning department. Penalties for non-compliance can range up to $50,000 for individuals or $250,000 for corporations.
The Naval Marine Archive, which owns a building in the affected district, filed an appeal against the bylaw soon after it was passed in 2013. A hearing was held by the OMB in June, 2014. The Board’s decision dismissing the Archive’s appeal was released on April 27, 2015.
Dr. Paul Adamthwaite, executive director of the charity, said, “We consider heritage to be very important. In fact, this charity exists to preserve heritage. But we are disappointed by the Board’s decision. It’s counterproductive. The last thing we need in this county is more red tape ensnaring property owners whose legacy will be the community’s future heritage. We are already heavily regulated in this municipality. And many of the properties caught up in this district can’t be considered ‘heritage’ buildings by any reasonable definition. This will create a disconnect in people’s minds as to what heritage really means. Besides, many of the true heritage buildings are already individually designated and regulated.”
The legal documents served on the municipality’s lawyer allege that the Board made numerous errors of law in its ruling. Among other things, the motion alleges that the Board wrongfully refused to permit Dr. Adamthwaite to call evidence and make submissions on several important issues.
County resident Karen Selick observed the 2014 hearing and was aghast at how the Board treated Dr. Adamthwaite.
She said: “First the Board denied his request for an adjournment so that his lawyer could attend. Then it made him choose between acting as his own lawyer and giving evidence. Essentially, the Board forced him to jettison a large portion of his case.”
Selick is the litigation director for the Canadian Constitution Foundation (CCF), a registered charity that engages in public interest litigation. Selick’s concerns about unfair conduct of the hearing cemented the CCF’s decision to support this case.
“Picton’s real heritage is not found in the appearance of the buildings on Main Street. Picton’s real heritage is its long-standing English common-law tradition of fair play and natural justice. The council violated these traditions by the manner in which it enacted the bylaw, and the OMB violated these traditions by the way it treated Dr. Adamthwaite on the appeal,” Selick alleged.
“Another part of Picton’s heritage is the culture of individual initiative that built the historic buildings on Main Street. This bylaw threatens to strangle that entrepreneurial spirit and replace it with bureaucratic fiat,” said Selick.
The CCF’s interest in the heritage designation issue is not confined to Picton. “More than a hundred similar heritage districts have been proclaimed in various Ontario municipalities, and we’ve heard complaints from property owners in several of them,” Selick explained. “Property ownership has been described as a ‘bundle of rights’. When municipalities usurp part of that bundle—namely, the right to determine a building’s appearance—they are expropriating part of the property’s value, without paying compensation.”
The Naval Marine Archive hopes that it will be granted a re-hearing by the OMB. This will give it the opportunity to be represented by a lawyer experienced in municipal law, and to present fully the evidence it was not allowed to present in 2014.
Adamthwaite noted: “The Board refused to postpone our hearing so our lawyer could be present, but then took more than ten months to issue its 36-page ruling. It seems odd that we had to be rushed, but the Board could take its time.”