Town administration clarifies issues raised by Brian Gallagher delegation

Proposed downtown heritage assessment study

On January 27, 2015, Mississippi Mills Chief Administrative Officer Dian Smithson issued a report to clarify issues raised by the presentation by Brian Gallagher to the Committee of the Whole on January 13, 2015. The report is reproduced below. Bolding to some sections has been added by the Millstone.

THE CORPORATION OF THE TOWN OF MISSISSIPPI MILLS

ADMINISTRATION REPORT

DATE: January 27, 2015

TO: Committee of the Whole

FROM: Diane Smithson, CAO

SUBJECT: CLARIFICATION REGARDING HERITAGE CONSERVATION

DISTRICT STUDY AND PLAN

RECOMMENDATIONS:

1. THAT Council accept Staff’s report providing clarification on matters

pertaining to the Heritage Conservation District Study and Plan as information.

2. THAT Council approve the Heritage Conservation District Study area under Part V of the Ontario Heritage Act, which shall be known as the Downtown Almonte Heritage Conservation District as recommended by the Town’s Consultant Watson MacEwen Teramura Architects in their report dated November 2014 and supported by the Town’s Heritage Committee;

AND FURTHERMORE THAT the consultant be authorized to proceed with Phase 2 of the Heritage Conservation District Study and Plan project to prepare the necessary policies and guidelines.

3. THAT Council approve delaying consideration of the remaining five (5) recommendations (recommendations ii. to vi.) contained in the consultant’s report dated November 2014.

4. THAT Council of the Corporation of the Town of Mississippi Mills directs that additional public meetings for property owners and the public be held during Phase 2 of the project utilizing laymen and local experts from other municipalities along with the guidelines found in the last two paragraphs on page 27 of the handbook for Designating Heritage Conservation Districts (produced by the Provincial Government), in an effort to help provide information and build support for the Heritage Conservation District Project.

BACKGROUND

At the January 13, 2015 Committee of the Whole meeting, Mr. Brian Gallagher made a delegation and provided a written address regarding the Heritage Conservation District Study and Plan. This purpose of this report is to clarify some matters raised by Mr. Gallagher in his address.

DISCUSSION

Following receipt of Mr. Gallagher’s written address to Committee of the Whole on January 13, 2015, staff contacted Mr. Andrew Jeanes, Advisor, Ministry of Recreation, Tourism and Culture and spoke with the Town’s Solicitor to confirm staff’s understanding regarding matters outlined in the address. Based on these conversations, some clarification regarding items in the address is required with regard to the following matters:

* In response to the question “Should you not have determined the guidelines before you had the information meetings so that you would have had some real information to give to the property owners?” The answer is no. it should be noted that in the RFP prepared for the project, the intention was that public consultation would take place during the development of the policies and guidelines phase (Phase 2) of the project. It is important that the public be involved in the development of these policies and guidelines as they ultimately have to work with them once the project is completed and if approved by Council.

  • With regard to heritage tax relief, in 2005 Council passed By-law No. 05-14,being a by-law to provide for tax refunds in respect of eligible heritage property under both Part IV and V of the Ontario Heritage Act. The tax relief provided pertains to the Municipal and Education tax rates on heritage property tax bills for those properties who meet the requirements of the program outlined. This program is a starting point for providing funding to offset taxes related to heritage designated properties. This is not to say that should Council finally approve the Heritage Conservation District Study and Plan for downtown Almonte, a review of this by-law and the amount of money allocated to this program should be undertaken to determine if any changes to the program are required. In addition, some further work needs to be done to convince the County of Lanark to apply heritage tax relief to their component of the tax bill for these properties.
  • With regard to insurance, the Province has indicated that “Premiums should not go up as a result of heritage designation. A variety of other reasons cause insurance companies to increase premiums for older buildings if there is a higher level of risk, such as out-dated wiring, old heating systems, etc. In fact, some companies do not insure buildings over a certain age. Designation itself does not place additional requirements on the insurer and therefore should not affect premiums.” This is an item that when the additional public consultations are done utilizing lay persons from other communities who have adopted a Heritage Conservation District, we hope can be addressed further.
  • If Council decides to pass a by-law to approve the Heritage Conservation District Study and Plan, per Section 41.(5) (b) of Part V of the Ontario Heritage Act, “the clerk shall ensure that a copy of the by-law is registered against the properties affected by the by-law in the appropriate land registry office”. In order to do this, a covenant or easement is not required. According to the Town’s solicitor, the municipality can register the by-law and all that is required is the signature of the Town’s signing officers. No formal agreement must be entered into with property owners to undertake the by-law registration. As a result, the requirement for property owner signatures as noted in the petition provided by Mr. Gallagher and the section of the Ontario Heritage Act noted on the petition does not pertain to the registration of the HCD by-law. The same registration procedure applies to Section 29, under

Part IV of the Act with respect to the registration of the By-law for individual properties.

Essentially by registering the by-law against the properties affected under Section 41.5 it puts prospective purchasers or anyone looking at the title of these properties on notice that the property is contained within a Heritage Conservation District under Part V of the Ontario Heritage Act.

* Section 45 of the Act notes that “Section 36, 37, 38 and 39 apply in respect of any building or structure and the land appurtenant thereto that is situate within the area that has been designated under this Part as a heritage conservation district”. This section is only clarifying that these same provisions apply under Part V (Heritage Conservation District) of the Act as they do under Part IV of the Act (individual property heritage designations) however, these provisions are all discretionary. Sections 36 – 39 do not automatically apply to either individual property designations under Part IV of the Act or to HCDs under Part V. They only apply if council decides to pass the necessary by-laws to enact these sections.

When referring to Sections 36, 37, 38 and 39 (see Attached Schedule ‘A’), they relate to Purchase or lease by-laws (Section 36 (1)), Expropriating By-law (Section 36 (2)), Delegation (Section 36 (3)), Easements (37.(1), Inspection (Section 38) and Grants and Loans (Section 39). When reading these sections, the wording is very clear in that a municipality may pass by-laws providing for acquiring, by purchase, lease or otherwise….; may pass by-laws for providing for the entering into of easements or covenants; any person may upon producing proper identification, inspect at any reasonable time…; and may pass by-laws providing for the making of a grant or loan to the owner…” These are all discretionary matters. If they were required by a municipality, the wording would have been completely different in that they would have indicated, the municipality shall undertake these matters. None of these matters is required in order for the municipality to register a Heritage Conservation District or to approve the HCD plan.

Staff recommends that Council proceed with passing the recommendations contained in this report as well as amending By-law No. 14-86 to reflect the same boundaries as were proposed by the Town’s Consultant in his report dated November 2014. Concurrently while the policies and guidelines for Phase 2 of the study are being developed, the additional public meetings Council refers to in motions 4 above can take place with property owners within the new boundary.

FINANCIAL IMPLICATIONS

A Rural Economic Development (RED) Grant was applied for in late December 2013. Staff was advised in March 2014 that the Town was successful with its application and would be receiving 50% or $22,079.50 of the $44,159 estimated cost of the project. The cost to proceed to Phase 2 of the project is incorporated into the above price and the Town’s 50% share of the project has been included in the 2014 Budget. Any funding not utilized from the project in 2014 will be carried forward into the 2015 budget.

SUMMARY

In order to keep the HCD project moving and allow it to be completed by the RED grant deadline, I am recommending that Council approve the recommended HCD study boundaries as recommended by the Town’s Consultant and that work be authorized to proceed on Phase 2 of the project which is the completion of the policies and guidelines. It should be noted that Council is committing itself to extensive public engagement in the development of the guidelines under Phase 2 and the boundary re-definition is in part a response to public comment and involvement.

I further recommend that if Council approves the proposed new boundary area, that the moratorium by-law 14-86 be amended to reflect this new boundary. Given the tight timeframe to complete the project under the RED program, I also recommend that the other recommendations contained in the consultant’s report be delayed for consideration until Phase 2 of the project has been completed.

Respectfully submitted

Diane Smithson,

Chief Administrative Officer

Schedule ‘A’

Purchase or lease by-laws 36. (1) The council of a municipality may pass by-laws providing for acquiring, by purchase, lease or otherwise, any property or part thereof designated under this Part, including any interest therein, for the use or purposes of this Part and for disposing of such property, or any interest therein, by sale, lease or otherwise, when no longer so required, upon such terms and conditions as the council considers necessary for the purposes of this Part. R.S.O. 1990, c. O.18, s. 36 (1).

Expropriating by-law (2) Subject to the Expropriations Act, the council of every municipality may pass by-laws providing for the expropriation of any property designated under this Part and required for the purposes of this Part and may sell, lease or otherwise dispose of the property, when no longer so required, upon such terms and conditions as the council considers necessary for the purposes of this Part. R.S.O. 1990, c. O.18, s. 36 (2).

Delegation (3) The council of a municipality that forms part of an upper-tier municipality may delegate its power under this Part to the council of the upper-tier municipality. 2002, c. 17, Sched. F, Table.

Easements 37. (1) Despite subsection 36 (1), after consultation with its municipal heritage committee, if one is established, the council of a municipality may pass by-laws providing for the entering into of easements or covenants with owners of real property or interests in real property, for the conservation of property of cultural heritage value or interest. 2002, c. 18, Sched. F, s. 2 (19).

Idem (2) Any easement or covenant entered into by a council of a municipality may be registered, against the real property affected, in the proper land registry office. R.S.O. 1990, c. O.18, s. 37 (2).

Idem (3) Where an easement or covenant is registered against real property under subsection (2), such easement or covenant shall run with the real property and the council of the municipality may enforce such easement or covenant, whether positive or negative in nature, against the owner or any subsequent owners of the real property, and the council of the municipality may enforce such easement or covenant even where it owns no other land which would be accommodated or benefited by such easement or covenant. R.S.O. 1990, c. O.18, s. 37 (3).

Assignment (4) Any easement or covenant entered into by the council of a municipality under subsection (2) may be assigned to any person and such easement or covenant shall continue to run with the real property and the assignee may enforce the easement or covenant as if it were the council of the municipality and it owned no other land which would be accommodated or benefited by such easement or covenant. R.S.O. 1990, c. O.18, s. 37 (4).

Conflict (5) Where there is a conflict between an easement or covenant entered into by a council of a municipality under subsection (1) and section 33 or 34, the easement or covenant shall prevail. R.S.O. 1990, c. O.18, s. 37 (5).

Inspection 38. (1) For the purpose of carrying out this Part, any person authorized by the council of a municipality in writing may, upon producing proper identification, inspect at any reasonable time property designated or property proposed to be designated under this Part where a notice of intention to designate has been served and published under subsection 29 (3).

Obstruction of investigator (2) No person shall obstruct a person authorized to make an investigation under this section or conceal or destroy anything relevant to the subject-matter of the investigation. R.S.O. 1990, c. O.18, s. 38.

Grants and loans 39. (1) The council of a municipality may pass by-laws providing for the making of a grant or loan to the owner of a property designated under this Part for the purpose of paying for the whole or any part of the cost of alteration of such designated property on such terms and conditions as the council may prescribe. R.S.O. 1990, c. O.18, s. 39 (1).

Loan is lien or charge on land (2) The amount of any loan made under a by-law passed under subsection (1), together with interest at a rate to be determined by the council, may be added by the clerk of the municipality to the collector’s roll and collected in like manner as municipal taxes over a period fixed by the council, not exceeding five years, and such amount and interest shall, until payment thereof, be a lien or charge upon the land in respect of which the loan was made. R.S.O. 1990, c. O.18, s. 39 (2).

Non-application of s. 106 of Municipal Act, 2001 (3) Section 106 of the Municipal Act, 2001 does not apply to a grant or loan made under subsection (1). 2009, c. 33, Sched. 11, s. 6 (14).