Thursday, August 25, 2016

What's wrong in Rondeau? Part two: OMB turns down HCD

To recap from last time: the owner of Rondeau Provincial Park, the Ministry of Natural Resources and Forestry, appealed the designation of part of the park to the Ontario Municipal Board.  The basis for the appeal was that the Municipality of Chatham-Kent had exceeded its jurisdiction in designating the historic cottage community in the park as a heritage conservation district under Part V of the Ontario Heritage Act. (Note 1)

C-K defended its designation and was supported by the Rondeau Cottagers Association (RCA).

The OMB issued its 12 page decision on July 14, 2016.  It allowed the appeals and ordered the district designation by-law repealed. (Note 2)

In accepting that C-K did not have the authority to designate, Board Vice-Chair Steven Stefanko looked at two statutes: the Provincial Parks and Conservation Reserves Act, 2006 (PPCRA) and the OHA.

Starting with the PPCRA, the Board noted the Act’s purpose:

[T]o permanently protect a system of provincial parks and conservation reserves that includes ecosystems that are representative of all of Ontario’s natural regions, protects provincially significant elements of Ontario’s natural and cultural heritage, maintains biodiversity and provides opportunities for compatible, ecologically sustainable recreation. (s. 1)

And who is responsible for provincial parks:

The Minister is responsible for the control and management of provincial parks and conservation reserves… (s. 12 (1))

And apparently who is not:

For municipal purposes, any land set apart as a provincial park or conservation reserve … shall … be deemed to be separated from any municipality of which it formed a part…. (s. 31 (1))

One of the first questions, then, was whether C-K passed the heritage district by-law for a “municipal purpose.”  Noting that the HCD “allows the Municipality to exert some control and management over the cottage community in the Park”, the Board had no trouble concluding that it did.  And that the by-law was also at odds with the minister’s exclusive authority under section 12.

Well, in that case it would seem the only way the HCD could be saved is if somehow the Ontario Heritage Act trumps the PPRCA.  Which is what C-K and the RCA argued.

Subsection 68 (3) of the OHA does say:

Where there is a conflict between this Act or the regulations and any other Act or regulation, this Act or the regulations shall prevail.

But the Board found there was no conflict between the two pieces of legislation.

The OHA says at the beginning of both Part IV and Part V (in subsections 26.1 (1) and 39.1.1 (1)) that these parts of the Act — and the designation powers in them — do not apply to property described in clause 25.2 (2) (a).  This clause says:

25.2 (1) In this Part,
“property” means real property and includes all buildings and structures thereon.
(2) This Part applies to property,
(a) that is owned by the Crown in right of Ontario or by a prescribed public body;

The policy behind all this — keeping municipal fingers out of provincial pies — was one of avoiding overlap and potential conflict between Ontario’s two main heritage protection regimes: heritage designation by local municipalities under Parts IV and V, which go back to the passage of the OHA in 1975; and mandatory conservation standards and guidelines for provincially owned heritage property, added in a new Part III.1 in 2005.  (Note 3)

So the application, or rather non-application, of Part V to a provincially owned park is clear, n’est-ce pas?

But does it matter that the cottage buildings themselves are owned not by MNRF but by the cottagers?

The OMB determined that this unusual and rather awkward fact did not alter the limitation established by the legislature on the designation of Crown property. (Note 4)

Speaking of the provincial standards and guidelines, the parties supporting the HCD had one more, rather pointed argument, although something of a long shot.  They suggested that, with respect to Rondeau park, a) MNRF was delinquent in complying with the S&Gs, specifically the requirement to identify provincial property of cultural heritage value or interest; and b) the heritage district by-law essentially satisfied that requirement… and therefore should be upheld.

Nice try, but the Board said this was mixing apples and oranges:
“Any delinquency on the part of the MNR (sic) to evaluate and/or identify provincial heritage properties is not a jurisdictional argument with respect to the passing of the By-law….”

In light of its conclusions thus far, the Board didn’t really need to consider MNRF’s other argument that the designation was contrary to C-K’s Official Plan.  The OP says that lands within the park “are not subject to municipal planning documents.”  The Board made the unsurprising finding that “heritage conservation is a planning matter and the Heritage By-law is therefore, in my estimation, a municipal planning document.”

So add non-conformance with the OP to the designation’s defects.

A rare (the only?) brick cottage at Rondeau

In my view the repeal of the Rondeau Provincial Park Heritage Conservation District was the right decision in this case.  But, while misguided, the HCD was a valiant effort to address the long-simmering issue with the cottages we looked at last time.  And that issue, with its fast approaching “doomsday” of December 2017 — when all 283 cottage leases expire — must still be settled.

By taking designation options off the table the Ontario Municipal Board has made it crystal-clear that the Ministry of Natural Resources and Forests is in the driver’s seat for finding a long-term solution.

It should also be obvious that the way forward involves MNRF recognizing its obligations under the Standards and Guidelines for the Conservation of Provincial Heritage Properties and, to start, assessing (and embracing!) the cultural heritage values of Rondeau.

Equally obvious, given the make-or-break situation of the Rondeau cottagers and their ownership of the cottages, is that the solution must entail MNRF working with the Rondeau Cottagers Association.

Might there be a role for the Ministry of Tourism, Culture and Sport — which among other things monitors compliance with the provincial S&Gs — in brokering this solution?

Time is running out.  Tick tock.

Note 1: In explaining the boundary of the proposed Rondeau heritage conservation district the HCD study states: "The concentration of resources within the proposed Heritage Conservation District includes both natural and built resources, in the form of the Park`s natural setting, beach areas, trails, roads, cottages, Park buildings, and supportive buildings. These features are all linked together at Rondeau Provincial Park and form a concentration of resources that are linked to the early cottaging industry in Ontario." (p. 48)

Note 2: See:

Note 3:  The detailed S&Gs were approved in 2010. See my earlier posts on this topic, especially: The intent was that all property of cultural heritage value in the province be subject to either heritage designation or the S&Gs, i.e. no gaps. The divided ownership between land and cottage at Rondeau (and elsewhere) poses a particular challenge however.

Note 4: It is hard to see how the Board could have come to a different conclusion since the definition of property in Part V is “real property and includes all buildings and structures thereon.” MNRF owns the “real property” of Rondeau, if not the privately owned cottages. Looked at another way, there is no way to designate a building or structure without the land on which it stands.

Saturday, August 13, 2016

What's wrong in Rondeau? Part one: The park and its cottages

And summer’s lease hath all too short a date
~ William Shakespeare, Sonnet 18

It’s high summer and those of us who aren’t would probably like to be at a cottage.

How about one like this?

A 1914 log cottage (originally the Blenheim Old Boys Club) at Rondeau Park

This cottage is in Rondeau Provincial Park, on Lake Erie south-east of Chatham, Ontario.  Rondeau is a big sand spit jutting into the lake creating a circular — ronde eau — bay (actually more egg-shaped).  

Established by statute in 1894, Rondeau is the second-oldest provincial park in the Ontario, just after Algonquin in 1893. (Note 1)  The Rondeau Provincial Park Act set apart over 8,000 acres of the Rondeau peninsula as a “Public Park Forest Reservation and Health Resort for the benefit, advantage and enjoyment of the people of Ontario.”

Supporting the “health resort” objectives of the park, the legislation includes specific provisions relating to “the lease...of such parcels of land in the park as may be deemed advisable for the construction of buildings for habitation during the summer, and such other buildings as may be necessary for the accommodation of visitors or persons resorting to the park as a sanitarium for health or summer resort.”

From the start cottages were a key component — they provided seasonal accommodation for families and their leases created income to help make the park self-sufficient.  The first cottages at Rondeau date from the 1890s and they continued to be built through the first half of the twentieth century with the number of cottages peaking at about 450 in the 1950s.

About that time the attitude towards cottages of the owner of the park — the Department of Lands and Forests, now the Ministry of Natural Resources and Forestry (MNRF) — started undergoing a change.  Cottages built and owned privately on leased lots came to be seen as incompatible with the long-term goals of the park to preserve the natural environment and provide for public recreational use. (It’s worth noting that the cottage lots comprise only about one percent of the park and that all waterfront and beaches are public.)

The province stopped approving new cottages and over time, as cottages came up for sale, began buying them… and demolishing them.  From 451 the number of cottages has fallen to 283 (and counting — down).

Cottage lot leases, customarily for 21 years and renewable, were last renewed in 1996, without the renewable clause.  All of the remaining leases are due to expire in less than a year and a half… on December 31, 2017.

"Declaration of Rights" from Rondeau Forever: A Community Forever, 2015

Needless to say, the cottagers, many of whose families have been at Rondeau for generations, are not happy with the situation.  The Rondeau Cottagers Association (RCA) strenuously opposes the removal of cottages and the potential end of the 125 year-old cottage community at Rondeau.

With the fast-approaching termination of the leases the long-simmering cottage issue is clearly coming to a head. (Note 2)

Not coincidentally, something else is expiring — has expired in fact.  The park’s current management plan was adopted in 1991 and aimed to guide the management and operation of Rondeau for 20 years. (Note 3)

While the plan acknowledges the importance of cultural and historic resources in the park, they are clearly of secondary interest.  For example, although a key provincial parks objective is “to protect provincially significant elements of the natural and cultural landscape of Ontario”, under this heading the plan discusses only natural features of the park.

The plan does say: “A cultural heritage resources management strategy will be prepared to guide exploration, preservation and utilization of Rondeau’s cultural resources.”  But after 25 years there is no evidence this strategy has ever been done.  And no indication the now outdated plan is being revised.

There is little doubt the cottages issue is holding things up.

Enter the RCA, which in 2011, on its own initiative, commissioned a cultural heritage study of Rondeau.  The consultants 2012 report, Rondeau — A Cultural Heritage Landscape, makes a strong case that the park is a cultural heritage landscape of not just local but provincial significance. (Note 4)

A couple years go by.  Then things really get interesting.  The municipality, Chatham-Kent, steps in and in early 2015 puts Rondeau Provincial Park on its municipal heritage register. (Will it surprise you that a good many of the cottagers are from Chatham?)

Not content with listing the park under the OHA, C-K proceeds to study the park for potential designation as a heritage conservation district under Part V of the Act. (Note 5)  That moves forward to the preparation of an HCD plan.  Then, in October of last year, the municipality — in a move both admirable and audacious — designates the built-up area of the park as an HCD.

Well, you know what that would do… demolition or removal of cottages, not so fast!

To all this — including public meetings on the proposed HCD — the park’s owner, MNRF, could not have been oblivious; but it seems the passage of the designation by-law was what finally prompted a response.  They appealed… and last month the Ontario Municipal Board came to Chatham.

What happened?  Tune in next time for “What’s wrong in Rondeau? (part two).”

Note 1: In case you’re wondering, Ontario now has 329 provincial parks and, dating from 1994, 292 conservation reserves. The Ministry of Natural Resources and Forests distinguishes these two types of protected area as follows:

Provincial parks
Protect significant natural and cultural features in the province while supporting Ontario’s economy. Regulated under the Provincial Parks and Conservation Reserves Act, they are important for outdoor recreation, scientific research and environmental monitoring, and education.

Conservation reserves
Protect significant natural and cultural features while providing opportunities for a variety of compatible traditional activities (e.g. fishing, hunting, trapping). Regulated under the Provincial Parks and Conservation Reserves Act, they are also important for scientific research and environmental monitoring.

Note 2:  The situation at Rondeau has some parallels with that of Toronto Island. There the decades-long wrangling over the future of the island cottage community was only finally settled with the passage of special legislation, the Toronto Islands Residential Community Stewardship Act, 1993. There's also been an issue with cottages in Algonquin Park, but there the cottages are scattered throughout the park, while at the much smaller Rondeau they form a village-like community.

Note 3: The Rondeau Provincial Park Management Plan can be found here: 

Note 4: The consultants, George Robb Architect and MHBC, “concluded that the cottages at Rondeau are an important part of the formative cottaging history in the Province. Together with the cultural heritage and natural landscape setting, the collection of built heritage resources represents a major contribution to the local regional economy and identity.” 

Saturday, July 30, 2016

Back to the Rockwood Academy, part two

Rear of the gymnasium wing, Rockwood Academy

The fact you give something to someone, or die leaving it to them, doesn’t mean they have to take it.  Especially when it comes with strings.

Josef Drenters willed the Rockwood Academy to the Ontario Heritage Foundation (now the Ontario Heritage Trust), but with a life interest for his brother Andy Drenters.  That was one complicating factor in seeing Josef’s wishes fulfilled.  But the Foundation had accepted property with life interests before — this was the case with the property known as Inge-Va, now a historic house museum in Perth (although there the donor was alive and retained the life interest rather than devising it to a third party). 

The real obstacle to the Foundation accepting the Academy was financial.

Property ownership is of course a big responsibility, doubly so if you are a public body with a mandate to own, preserve and maintain heritage buildings.  Since its creation in 1967 the OHF/OHT has learned from experience how demanding, in all respects, heritage properties can be and the risks of the (less discretionary) budget for capital work on its sites cramping the (more discretionary) budget for its other programs.  Over the years the Foundation became understandably wary of accepting heritage property from donors without an endowment or some dedicated funding source to help sustain the property long-term.

The experience with the Rockwood Academy probably contributed to the evolution (read: tightening up) of the Foundation’s acquisitions policies.  There were no monies in Josef’s estate to endow his gift of the Academy.  Quite the opposite… there were two mortgages!  (I don’t recall the amount involved — not huge, but not inconsiderable either.)

It was soon apparent that the Foundation would not accept an indebted Academy.  And so, in 1984, the Friends of the Rockwood Academy was born.

Friends invitation 1984

The core Friends group consisted of Andy Drenters, his wife Heather, Murray Haigh, and me.  We began raising money to pay off the outstanding mortgage debt.  We solicited donations and pledges from friends of Josef’s, people who owned his work and others who were concerned for his legacy and wanted to see the Academy preserved.  (I remember my colleague Herb Stovel making a generous multi-year pledge.)

I’m pretty sure we would not have reached our fundraising goals, at least in time — the Foundation’s Board was not going to wait forever.  But out of the blue came… Agnes of God.

A movie by Canadian director Norman Jewison, Agnes of God takes place in a Quebec convent where strange things are going on, including what may or may not be a miracle.  But for the Friends it certainly seemed like a miracle that Jewison wanted to shoot the film at the Rockwood Academy, over a several month period, and of course pay for the privilege.

The Academy, with its imposing stone edifice and monastic ambience, was perfect for the part.  Some temporary alterations to the property were naturally required, to make it less Anglo and more Franco, including the addition of faux dormers on the roof… and the construction of a mock bell tower at the rear!

Andy Drenters at work on Agnes of God film set
(note framework for bell tower behind)

Starring Jane Fonda, Anne Bancroft and Meg Tilley (yes, they were all there in Rockwood), Agnes of God was released in 1985.  Location fees combined with the funds raised by the Friends more than paid off the Academy’s mortgages.  The way had been cleared for the Ontario Heritage Foundation to accept the property.

✧ ✧ ✧ ✧ ✧

Now for something completely different.  About this time the simmering threat we looked at in the last post — the encroachment on the rural setting of the Academy by development — seemed suddenly to ignite.  Distracted by Josef’s illness, death and the uncertain aftermath, the Friends and the Foundation had somehow failed to notice that the lands at the rear of the Academy, which had been zoned agricultural, had been acquired by a developer… and were now zoned residential… and a subdivision had been approved.  Yikes!

And here’s where the stop orders come in.

Rookwood Academy from the hill

Development of the subdivision called for extensive clearing and grading of the field immediately behind the Academy, including the levelling of a large hill.  Frantic to secure a buffer zone including the hill, we turned to the Ontario Heritage Act.

Hidden away in Part VI of the Act (“Conservation of Resources of Archaeological Value”) was a power that had never been used.  Subsection 62 (1) said:

Where the Minister after consultation with the Foundation is of the opinion that property is of archaeological or historical significance and is likely to be altered, damaged, or destroyed by reason of commercial, industrial, agricultural, residential or other development, the Minister may issue a stop order directed to the person responsible for such commercial, industrial, agricultural, residential or other development prohibiting any work on the property for a period of no longer than 180 days, and within that period the Minister or any person authorized by the Minister in writing may examine the property and remove or salvage artifacts from the property.  (emphasis added; the provision is the same today, except that “Trust” has replaced “Foundation”)

Okay, some of you are thinking that this stop order power was intended for archaeological sites, not artifact-free hills behind built heritage sites.  And I’d agree.  This is a good example of how legislation can sometimes be interpreted and used (read: stretched) in ways beyond those intended — and therefore why interpretation based on “what the drafters intended” is not definitive.  But back to the story.

Because the hill property was an original part of the 1850s Academy farm — and because bulldozers had in fact begun to level it — then Minister of Culture and Recreation Lily Munro was “of the opinion” that the property was of historical significance and was likely to be damaged or destroyed.  In September 1985 she issued a 180-day stop order under section 62 affecting an approximately three acre parcel including the hill; after it ran out, she issued a second stop order in May 1986. [Note 1]

One reason why the section 62 power had not been used (and has never been used since) has to so with subsection 62 (2).  This requires payment of compensation for 
“personal or business damages resulting from the stop order.”  The amount of the compensation is reached by agreement; failing that, by a proceeding under the Expropriations Act.

In any case stop orders were obviously not a long-term solution to the buffer zone issue.  The Ontario Heritage Foundation in the end reached agreement with the subdivision owner for the purchase of one acre, including most of the hill, for $50,000.

✧ ✧ ✧ ✧ ✧

Andy Drenters behind the Academy today

Thirty years ago, in 1986, the OHF acquired the Rockwood Academy.  For more than 55 years it has been the home, studio and gallery of two remarkable brothers — Josef Drenters, who restored and enhanced it, and then Andy Drenters, who has been its faithful custodian.  The Academy is a magnificent place with a fascinating story… with many chapters left to come.

Rookwood Academy refectory today, with Andy's sculptures

Note 1: Lily Munro, just a few months on the job after the swearing in of David Peterson’s minority Liberal government in June 1985, deserves great credit for taking this bold action. The only other use of a stop order under the OHA was by Culture Minister Aileen Carroll in 2009, who issued a 60-day order under section 35.2, which was added to Part IV of the OHA in 2005.  That order was issued at the request of the City of Toronto to stop demolition of the Maclean House near Casa Loma: 

Friday, July 15, 2016

Back to the Rockwood Academy, part one

I hadn’t been there for decades.  Yet, when greeting Andy Drenters at the door, I said: “This is one of my favourite places in the world.”  On a beautiful day in May it was delightful to see how little things had changed.

Rarely if ever in my life has there been a place like the Rockwood Academy that has brought together the personal and the professional.

Rockwood Academy front facade

The Academy — a property of the Ontario Heritage Trust in the village of Rockwood, just east of Guelph — has an intimate connection with stop order powers under the Ontario Heritage Act, but we’ll get to that… 

The tale I have to tell begins in 1980, but the Rockwood Academy story goes back to the 1850s.

Fast forward to 1960 when the near derelict property was acquired by Josef (Yosef) Drenters, a sculptor of Belgian origin, who painstakingly began its restoration and renewal.

The Academy is immense, rambling and oozes atmosphere — a building that looks and feels very old and timeless, as much on the inside as out.  I guess you would say it has great spirit.  Much of that intangible something is owing to the two men most closely associated with, and dedicated to, it — William Wetherald and Josef Drenters.  And there was an uncanny resemblance between them…

Academy founder William Wetherald
Josef Drenters with one of his sculptures

Josef, who had spent seven years in a seminary before leaving Europe with the rest of his family to come to Canada, was 29 when he bought the Academy property, seeking a home and studio. He devoted the following two decades not just to his sculpture but also increasingly to the building.  The Academy was more than a labour of love; it became an obsession that sometimes seemed to interfere with his art.  Or perhaps it is truer to say, as he did, that the Academy was his greatest and most demanding work.

Josef laboured for many years on the property with the help of family, especially his brother Andy (Andreas), and friends, including the landscape architect Murray Haigh, who was for a time his partner.  Then in 1978 he discovered… the Ontario Heritage Foundation, today’s Ontario Heritage Trust.  The Foundation provided a grant of $65,000 — those were the days! — to help with the stabilization of the walls of the old gymnasium (the rear wing of the building) and other structural work.

Rookwood Academy rear facade with gymnasium wing on right

As a condition of the grant Josef signed a heritage easement agreement protecting in perpetuity the exterior and many interiors of the 25-room building, as well as other structures on the property including a small stone chapel Josef had built himself.   This easement was one of the first entered into by the OHF since it had gained the power to acquire heritage easements with the passage of the Ontario Heritage Act a few years before.

Now get this — Josef was so conscientious and had such high standards for the work to be undertaken that he ended up doing much of it himself and making the unprecedented gesture of returning $11,000 of the grant.

Josef at work on gymnasium wing

Just about this time, in 1980, I come on the scene as the new staff member responsible for the OHF’s easements program.  Pretty quickly I got out to visit the enchanting Rockwood Academy and meet its intriguing owner.

Gymnasium interior today with Andy Drenter's sculptures

From early on I recall Josef’s concern, with the building itself secured, for the Academy’s surroundings and landscape.  On the edge of the village and backing on to a farmer’s field, the property retained its original rural setting.  But little Rockwood was growing….  Josef had already been able to purchase a small parcel of land at the rear and to the south of the Academy, including the old Academy bank-barn (I think the OHF had put up some of the money for this).  He approached his neighbours with a proposal that they go in together to buy more of the field behind, but to no avail.

Alas, there were soon much bigger worries.  Some 12 years before Josef had had a bout with cancer and in 1983 the cancer returned.  Facing a terminal diagnosis he agonized over the future of his beloved Academy.  While the heritage easement offered some assurance should the property remain in private hands, Josef seems always to have felt that he held the Academy in trust for future generations and he had come to see the OHF as a committed partner in its preservation.  As for his family, Josef’s brother Andy, also a sculptor, had a close connection with the property too.  

Josef decided he would leave the property to the Ontario Heritage Foundation subject to a life interest for Andy.

I had become a friend and Josef’s death in November 1983, at the age of 53, was a huge blow.  With my colleagues Larry Ryan and Herb Stovel I attended his funeral at the towering Church of Our Lady in Guelph.

Chapel built by Josef Drenters in corner of Academy courtyard

In her book Heritage in Stone: Yosef Drenters and the Rockwood Academy, Barbara Smiley tells this story from Josef’s final days:

[Josef’s close friend] Murray Haigh lit a candle in the Academy chapel on All Saints’ Day and made a beautiful wreath of all the last autumnal plants and berries from the garden. This he placed in front of the alter where Josef had spent many hours. When Murray received the sad news that Yosef had died early in the morning of November 8, he went straight to the chapel. The candle, which still had plenty of wax left to burn, had gone out. A small flame extinguished but the symbol of a wonderful man with a great heart, full of compassion, talented, kind — yet a perfectionist and stern taskmaster who never settled for second best.

Josef’s intention of leaving the Rockwood Academy to the OHF was soon confirmed.  But what was not at all clear was whether the Foundation would accept it.

Engraving of entrance by Gerard Brender à Brandis