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HomeMy WebLinkAboutHK - 2019-10-01 - Item 4 - Delegated Approval By-law Update DiscussionDate:September 16, 2019 To:Members of Heritage Kitchener From:Leon Bensason, Coordinator, Cultural Heritage Planning cc: Subject:Delegated Approval By-law Update Discussion rd At the end of the last Heritage Kitchener meeting held on September 3,2019 discussion took place regarding plans to bring forward a report having to do with updating the delegated approval by-lawfor Heritage Permit applications , in accordance with direction from the Heritage Best Practices report of 2015. Previous to the discussion in September, Heritage Kitchener had a more fulsome discussion on the subject of delegated approval in May of 2018. Asthere are several new members of Heritage Kitchener who were not part of the discussion in 2018, staff thought it might be helpfulto recirculate the discussion paper that was distributed inMay 2018, along with the minutes from that meeting, and to provide a further update. The May 2018 discussion paper is attached, along with the committee minutes. Heritage staff consider the following points to be some of the take-aways from the meeting and discussion which occurredin 2018: Committee members generally agreed with the merit in updating the delegated approval by-law, in line with considering extending approval authority for all Heritage Permit applications (save for demolitionand refusals)as described in the discussion paper, so long as some form of checks and balances isin place. The committee favoured the City of Waterloo approach of staff consulting with the Heritage Kitchener Committee Chair before approving an application through delegated approval. The HK representative for the Upper Doon HCD noted that the UDHCD Plan which was adopted by by-law, states that appl ications shall be brought forward to the City’s heritage committee, and questioned whether delegated approval could apply toHeritage Permit applications made in the Upper Doon heritage district. Councillor Ioannidis was of the opinion all heritage districts should be subject to the same approvals process. In this regard, heritage staff havetouched base with Legal staff who concur with the interpretation that the Upper Doon district plan contains wording that requires applications to be considered by the heritage committee. Inregard to applications considered at Heritage Kitchener, some committee members expressed support for continuing the practice of requiring a unanimous recommendation of approval in order to proceed through final delegated approval. 4 - 1 Staff hope to havemore discussion on updating the delegated approval by-law at the October HK meeting. _______________________________ Leon Bensason, MCIP, RPP, CAHP Coordinator, Cultural Heritage Planning Acknowledged By: Brandon Sloan, Manager of Long Range & Policy Planning Attachments: - May 2018 Discussion Paperand Appendices -Excerpt from May 2018 Heritage Kitchener Minutes 4 - 2 Heritage Best Practices Delegated Approval Discussion Paper Heritage Kitchener May 1, 2018 Why Are We Considering a Review and Update to the Delegated Approval By-law ? The delegation to staff of Cheritage permit applications, is generally regarded as a customer service measure, as it reduces the timelines for granting heritage approval (generally from 6-7 weeks down to 10 days), and provides for a more efficient use of time and resources toward other staff, committee and Council priorities. While more than half of all heritage permit applications received are currently processed through delegated approval,at various times since the passage of the delegated approval by-law in 2009, there have been instances when alteration applications in compliance with good conservation practices, have not been able to be approved directly by staff due to limitations in the wording of the current delegated approval by-law. In 2015, City Council directed staff to examine heritage best practice measures in Ontario, and to identify priority measures for implementation in Kitchener. Following discussion with Heritage Kitchener, one such priority included establishing a heritage procedural protocol and improving processes related to the issuance of heritage permits. This includes giving consideration to reviewing and updating the existing delegated approval by-law to provide greater opportunity for heritage permits to be issued through delegated approval, when appropriate to do so. What Does the Ontario Heritage Act Say About Delegated Authority? Changes made to the Ontario Heritage Act in 2005 enable municipal councils to delegate its consent or approval authority for certain heritage permit applications to a municipal employee or official. The delegated authority could apply to consenting to proposed alterations or classes of alterations made for Part IV or Part V designated property. In accordance with the Ontario Heritage Act, approval authority cannot be delegated for applications seeking permission to demolish. Further, where a Municipal Heritage Committee (MHC) has been established, the municipality must consult with its MHC before consenting to an alteration application made for Part IV designated property. This same provision does not apply where the property is designated under Part V. The following table illustrates the provisions of the Ontario Heritage Act with regard to delegated authority: Part IV Designated Part V Designated Heritage Permit Application DemolitionApplicationDelegated authority is Delegated authority is notpermitted.notpermitted. Alteration ApplicationDelegated Authority is Delegated Authority is permitted.permitted. Ability for staff to approve application No. Applications must Yes. Applications do directly without needing to consult heritage be referred to heritage not have to be committee?committee.referred to heritage committee (but staff may still do so). Ability for staff to approve application after YesYes consultation with heritage committee? Њ 4 - 3 How Has the Current Delegated Approval By-law in Kitchener Worked in Practice? In 2009, Kitchener City Council passed By-law 2009-089, delegating its approval authority for alterations to designated heritage property to the Coordinator, Cultural Heritage Planning.The existing by-law circumstances and criteria to be used when qualifying a heritage permit alteration application to be processed through delegated approval. The by-law addresses delegated approval for applications made for Part IV and Part V designated property differently. It is worth noting that in addition to not applying to applications made for demolition, delegated authority also does not apply when the recommendation is refusal of the application. For Part IV Designated Property In accordance with the Ontario Heritage Act, all applications for Part IV designated property must go to the Municipal Heritage Committee (MHC) for consideration. Under the Kitchener delegated approval bylaw, the Coordinator, Cultural Heritage Planning has the authority to grant final approval where Heritage Kitchener recommends approval with or without conditions that are the same as recommended by heritage planning staff, or with or without conditions that heritage planning staff agree to. flowchart the delegated approval processes for Part IV designated property as per the existing delegated approval by-law. Staff are of the opinion that in practice, the scenario outlined in the delegated approval by-law for Part IV designated property is working well. Staff cannot recall any instance where Heritage Kitchener has made a recommendation of approval that has not beenthe same as the staff recommendation or that staff have not been able to agree to. As a result, the existing delegated approval by-law has positioned most, if not all, alteration applications made for Part IV designated property to be approved through delegated authority, thereby saving applicants 2-3 weeks time in getting a heritage permit. For Part V Designated Property There are two scenarios when heritage approval may be granted through delegated authority for Part V designated property (property located within a heritage conservation district). Under the first scenario, the Coordinator, Cultural Heritage Planning can approve the application directly without having to consult with Heritage Kitchener (though staff does consult with the HCD representative on HK or the ward councillor). However the by-law establishes that an application is to bereferred to HK where one or more of the following criteria apply. o the application is highly complex o there is no existing policy to address the proposed work or situation; o there is significant sensitivity or controversy associated with the property or proposed work; o it does not meet with good heritage conservation practice; o it does not meet the policies or guidelines of the respective heritage conservation district plan; Ћ 4 - 4 o property of very high cultural heritage value or interest as identified by Council or in a heritage conservation district study or plan; o staff recommend approval of the application subject to conditions other than the o staff are recommending refusal of the application; o the Coordinator, Cultural Heritage Planning (or designate) is of the opinion the application should be forwarded to the municipal heritage committee for discussion. The second scenario when delegated authority may apply is when the application has been referred to Heritage Kitchener (as described above) and where the committee has made a recommendation of approval. Under such scenario, delegated authority applies much as it does for Part IV designated property, in that the Coordinator, Cultural Heritage Planning has the authority to grant final approval where Heritage Kitchener recommends approval with or without conditions that are the same as recommended by heritage planning staff, or with or without conditions that heritage planning staff agree to. illustrates in a flowchart the delegated approval processes for Part V designated property as per the existing delegated approval by-law. In general, the majority of heritage permit alteration applications received for Part V designated property are granted approval through delegated authority, where approval is granted directly by staff without having to consult with HK. In any given year, several alteration applications continue to be referred to HK because they meet one or more of the criteria listed in the delegated approval by-law. In most instances, applications are referred to HK because they are either deemed potentially sensitive or controversial, because the application is made for a ; or because approval is subject to special (non-standard) conditions. Looking back at2017 as an example,the following observations can be made: Total number of heritage permit alteration applications in 2017 16 made for Part V designated property Number of applications approved by staff without 9 having to consult with HK 4 for significant new development(modern house at 32 Number of applications referred Ahrens St. W. in CCHCD;multiple building at 64 Margaret to HK Ave. in CCHCD;Barra Condos in VPHCD;multiple building at 51 David St. in VPHCD) 3 for alterations(addition to 19 Roland St. in VPHCD; rear garage/pool buildingaddition at 4 Park St. in VPHCD; new front porch at 22 Ahrens St. W. in CCHCD) Ќ 4 - 5 The general intent of the criteria referenced in delegated approval by-law is to identify applications that are complex or potentially controversial and therefore deserving of being discussed and considered at the committee level. However in practice, some of the criteria are not clear indicators of such applications. Some alteration applications that could otherwise be regarded as non-complex or controversial and in keeping with good conservation practice, are being property or because a non-standard condition of approval applies (e.g. inspection of brick selection). The 3 alteration applications noted in the table above were referred to HK for those same reasons, but were unanimously recommended for approval without much discussion or debate. How Have Other Municipalities Addressed Delegated Approval Authority? The Ontario Heritage Act enables municipal Councils to delegate its power to consent to alterations either with respect to all alterations or with respect to classes of alterations as described in the by- of other municipal bylaws suggests that municipalities have on the most part adopted one or the other approach. Municipalities such as Markham, Burlington, Hamilton and Caledon have adopted an all alterations approach, whereby the by- alterations and does not restrict such authority to only certain types or classes of alterations. for by-law excerpts. In contrast, municipalities such as Oakville, Kingston and Waterloo have opted to limit delegated approval authority to certain types of alterations as specifically described or outlined in the by- law and generally considered to be minor or that would not cause significant negative impact on -law excerpts. What are some options for consideration and further discussion? 1. Do Nothing and leave the existing by-law as is. Overthe past 5 years, 65% of all heritage permit applicationshave been approved through delegated authority (either approved by staff directly or after consultation with HK). This trend could continue if the City opted for the status quo. However,staff are of the opinion that certain provisions in the existing by-law may be limiting the number of applications that are being approved by delegated authority, particularly in relation to Part V designated property. 2. Revisit the by-law and amend the criteria applicable to Part V designated property. Staff have noted thatthere may be value in revisiting thecriteria applicable to Part V designated propertyin the existing delegated approval by-law requiring referral of an alteration application to HK. Criteriasuch as: ; or, is subject to conditions other ,may not be clear indicators of applications that are complex andthat requireconsultation at the committee level. Consideration could begiven to amending the existing by-law to address this. Ѝ 4 - 6 3. Consider an approach taken bymostother municipalities and amend the by-law to identify classes of alterationsor to reflect an all alterationsapproach While some municipalities have gone the considered routine and non-complex directly in their by-law (and therefore eligible to be approved through delegated authority), such approachmay be restrictive,and like some of the criteria applicable to Part V designat number of applications that could otherwise be approved through delegated authority. If considering amending the existing by-law, then staff believe there may be merit in simplifying and streamlining the existing by-law to take an approval authority. Such approach would not represent a significant departure from how alteration applications for Part IV designated property are already being addressed, but could serve to address some of the limitations of the existing criteria relating to applications made for Part V designated property.While this assigns more approval authority to staff, the by-law should be worded to still enable staff to forward analteration application to Heritage Kitchener and Council for review or a decision. A draft of how the by-law may be worded to reflect an all alterations approach, is provided below. That Council delegate to the Coordinator, Cultural Heritage Planning or his /her designate, all power, except the power to refuse an application, for the granting of consents and approvals for alteration applications made for Part IV and Part V designated property, including the authority to attach terms and conditions. All decisions of the Coordinator, Cultural Heritage Planning shall be reported to H That the Coordinator, Cultural Heritage Planning may forward alteration applications to Heritage Kitchener and Council for review or a decision, particularly where in the opinion of the Coordinator, Cultural Heritage Planning, the application is highly complex, potentially controversial, or relates to a property having a high profile in the City. What about Heritage KitchenerCurrent Practice of Requiring a Unanimous Recommendation of Approval? At some point in time in 2015 or 2016, a change in process regarding the approval of Heritage Permit Applications was introduced at Heritage Kitchener and has since been put in regular practice. Currently, only alteration applications unanimously recommended for approval are forwarded to the Coordinator, Cultural Heritage Planning for final approval through delegated authority. Applications not receiving a unanimous recommendation of approval are forwarded to Council for final consideration. This protocol has been informally adopted by Heritage Kitchener when considering alteration applications made for both Part IV and Part V designated property, but is not formally addressed in the existing delegated approval by-law. Staff question the value of the current practice of requiring that committee recommendations of approval be unanimous in order to proceed to delegated approval. Staff are not aware of any instance where Council has not approved a recommendation of approval made by Heritage Kitchener. The requirement for recommendations to be unanimous is not referenced in the delegated approval bylaw; does not form part of the terms of reference for Heritage Kitchener; Ў 4 - 7 and staff are not aware of any other committee of Council or advisory committee following such practice. Heritage staff believe this practice could lead to applicants being delayed issuance of final approval through delegated authority, and suggest reviewing and reconsidering such practice. Џ 4 - 8 Appendix ‘A’ BY-LAW NUMBER OF THE CORPORATION OF THE CITY OF KITCHENER (Being a by-law to delegate certain authority of Council to consent to permits for the alteration of property designated under Parts IV and V of the Ontario Heritage Act) WHEREAS section 9 of the Municipal Act, 2001,S.O. 2001, c.25, as amended, provides that a municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under that or any other Act; AND WHEREAS section 11(3) 5 of the Municipal Act, 2001provides that a municipality may pass by-laws within the culture, parks, recreation and heritage sphere of jurisdiction; AND WHEREAS section 8(1) of the Municipal Act, 2001provides that the powers of a municipality under any Actshall be interpreted broadly so as to confer broad authority on municipalities to enable them to govern their affairs as they consider appropriate, and to enhance their ability to respond to municipal issues; AND WHEREAS section 23.1 of the Municipal Act, 2001provides that sections 9 and 11 of the Municipal Act, 2001authorize a municipality to delegate its powers under the Municipal Act, 2001or any Act, subject to certain limitations; AND WHEREAS sections 33 and 42 of the Ontario Heritage Act, R.S.O. 1990, c. O.18 provide that Council may delegate its authority to consent to alteration of property designated under Part IV of the OntarioHeritage Act and to grant permits for the alteration of propertylocated in a Heritage Conservation District designated under Part V of the Ontario Heritage Act; AND WHEREAS pursuant to sections 33(15) and 42(16) of the Ontario Heritage Act, Council of The Corporation of the City of Kitchener has consulted with its municipal heritage committee, Heritage Kitchener, respecting the delegation contained within this by-law; NOW THEREFORE the Council of The Corporation of the City of Kitchener enacts as follows: 1.In this by-law: “Act” shall mean the Ontario Heritage Act, R.S.O. 1990, c. O.18; 4 - 9 “alter” means to change in anymanner and includes to restore, renovate, repair, erect, or disturb and “alteration” and “altering” have corresponding meanings; “City” shall mean The Corporation of the City of Kitchener; “Coordinator” shall mean: (a)the City’s Coordinator of Cultural Heritage Planning; (b) in the absence or unavailability of the City’s Coordinator of Cultural Heritage Planning shall meanthe City’s Manager of Long Range and Policy Planning; and (c)in the absence or unavailability of the City’s Coordinator of Cultural Heritage Planning and Manager of Long Range and Policy Planningshall mean the City’s Director of Planning; “Council” shall mean the Council of the City; “Heritage Conservation District” means a heritage conservation district established under Part V of the Ontario Heritage Act; “Heritage Kitchener” shall mean the City’s municipal heritage committee established pursuant to the Act; “heritage planning staff” shall mean the City’s Heritage Planner, Coordinator of Cultural Heritage Planning, Manager of Long Rangeand Policy Planning, and Director of Planning; “Owner” shall mean means the person registered on title in the proper land registry office as owner; “Part IV application(s)” means an application to obtain consent for an alteration to property designated under Part IV of the Act; “Part V application(s)” means a heritage alteration permit application for property located within aHeritage Conservation District; “Property” means real property and includes all buildings and structures thereon and includesa cultural heritage landscape; “Standard Condition” shall mean a conditionor conditions acknowledged by resolution of Council for use as a standard condition of approval for Part IV application or a Part V application. 4 - 10 Delegation of consent to alterations on Part IV applications 2. Council delegates to the Coordinator all of the power that Council has respecting the granting of consentfor Part IV applicationsincluding the ability to attach conditions to such consent,subject to the provisions of this by-law. 3.Upon receipt of a Part IV application, heritage planning staffshall consider the application and mayrecommend: (a)that the application be decided by Councilafter consultation with Heritage Kitchener; (b)refusal of the application; (c)consent to the application with no conditions; (d)consent tothe application with the Standard Condition and/or other conditions. 4. In the circumstances set out in section 3(a) or (b), heritage planning staff shall refer the applicationto Heritage Kitchener for recommendations and Council shall retain decision making poweron the Part IV application. 5. In the circumstances set out in section 3(c) or (d),heritage planning staff shall refer the Part IV application to Heritage Kitchener and: (a)where Heritage Kitchener recommends consent tothe Part IV application with orwithout conditions that are the same as recommended by the heritage planning staffor with or without conditions that are agreeable to heritage planning staff, the Coordinator shall consent to the Part IV applicationand impose any conditions agreed upon by heritage planning staffand Heritage Kitchener; or (b)where Heritage Kitchener recommends that a Part IV application be refused, beconsented towith condition(s) that in the opinion of heritage planning staffare excessive or insufficient, or be consented towithout condition(s) that in the opinion of heritage planning staffare necessary, Council shallretain decision making poweron thePart IV application. Delegation of granting of permits onPart V applications 6. Council delegates to the Coordinator all of the power that Council has respecting the granting of permits on Part V applications, including the ability to attach conditions to such permit, subject to the provisions of this by-law. 4 - 11 7.Upon receipt of a Part V application, heritage planning staffshall consider the application and may: (a)refer the application to Heritage Kitchener for review and recommendation in the circumstances set out in section 8; (b)recommend refusal of the application; (c) grant the permitwith no conditions;or (d)grant the permitwith the Standard Condition and/or other conditions. 8. Heritage planning staffshall refer Part V Applications to Heritage Kitchener for review and recommendation in the following circumstances: (a) the application is highly complex, including situations in which a heritage impact assessment, conservation plan or other study is required to be submitted; (b)there is no existing City policy to address the proposed work or situation; (c) in the opinion of heritage planning staff, there is significant sensitivity or controversy associated with the property or proposed work; (d)the proposed work does not meet with good heritage conservation practice; (e)the proposed work does not meet the policies or guidelines of the respective Heritage Conservation District plan; (f)the application is made for a property identified by Council or in a heritage conservation district study or plan as a Group “A” property or as property of very high cultural heritage value or interest; (g)heritage planning staffrecommends granting the permit for alteration subject to conditions other than the City’s Standard Condition; and (h) heritage planning staffis of the opinion that the application should be forwarded to Heritage Kitchener for discussion. 9.In the circumstances set out in section 7(b),heritage planning staffshall refer the application to Heritage Kitchener for review and recommendations and Council shall retain decision making power. Retention of Delegated Authority 10. Regardless of any authority delegated to the Coordinator under this by- law, Council may, after notifying the Coordinator, exercise any authority that it delegated to the Coordinator. 4 - 12 11.Notwithstanding any other provisionof this by-law, heritage planning staff may refer any Part IV Application and any Part V applicationto Council at any time. Delegation of authority to request information 12.Council delegates to the Coordinator all of the power that Council has to request such information as Council may require from the Owner respecting a Part IV application and a Part V application. General 13. It is hereby declared that each and every of the foregoing sections of this by-lawis severable and that, if any provisions of this by-lawshould for any reason be declared invalid by any Court, it is the intention and desire of Council that each and every of the then remaining provisions hereof shall remain in full force and effect. 14. The Clerk of the City is hereby directed to make this by-law a part of The City of Kitchener Municipal Code by adding it to the Concordance and arranging and numbering it so as to fit within the scheme of the Code. PASSED at the Council Chambers in the City of Kitchener this day of , A.D. 2009. _____________________________________ Mayor _____________________________________ Clerk 4 - 13 apply. ’ NOT B of the Municipal application. Staff disagree with Delegated approval Heritage Committee. decision on the Council makes a the recommendations Appendix ‘Authority does from the staff with or without recommendation. Municipal Heritage the application and conditions which are Committee considers different recommends approval, l Heritage ecommendations authority. Staff agree with of the Municipal Coordinator of consents to the Cultura Heritage Committee. application under the r delegated approval Planning (or designate) V) I ers as the same approval of the with or without the application with Staff recommend Municipal Heritage the application and conditions which are or without conditions Committee consid staff recommendation. recommends approval, authority. Coordinator of consents to the Cultural Heritage application under delegated approval Planning (or designate) here Delegated Approval Authority Applies W s apply. Application is received by staff NOT the application and Municipal Heritage Delegated approval recommends refusal. Committee considers Bold Box Denotes Scenario application. authority does decision on the Council makes a Delegated Approval Authority (Part apply. ouncil. NOT to C refusal of the application. and makes a the application decision on the does Staff recommendrecommendation Council makes a approval authority Municipal Heritage Committee considers application. Delegated 4 - 14 apply. ut ’ C NOT from the staff he Municipal application. with or witho recommendation. of tdecision on the Municipal Heritage the application and Council makes a conditions which are Staff disagree with Committee considers Delegated approval different recommends approval, Heritage Committee. Appendix ‘the recommendations Authority does s criteria ’ as the authority. Staff agree with of the Municipal Coordinator of consents to the Cultural Heritage Heritage Committee. application under same the recommendations delegated approval the application Planning (or designate) approval of the with or without application with the without conditions Staff recommend with the Municipal Municipal Heritage and the application and Heritage Committee conditions which are orCommittee considers requiring consultation staff recommendation. recommends approval, meets the City apply. ral Heritage NOT authority. Coordinator of consents to the Cultu application under delegated approval Planning (or designate) mittee considers the application and Municipal Heritage Delegated approval recommends refusal. Com here Delegated Approval Authority Applies authority does W s Application is received by staff s ’ application. decision on the Council makes a Bold Box Denotes Scenario l of the conditions. Delegated Approval Authority (Part V) authority. approva one of the City Coordinator of Staff recommend consents to the conditions, or with Cultural Heritage application, without application under standard delegated approval Planning (or designate) ge apply. NOT to Council. refusal of the application. and makes a the application decision on the does Staff recommendrecommendation Council makes a approval authority Municipal Herita Committee considers application. Delegated 4 - 15 APPENDIX ‘D’ Ontario Heritage Act Section 33 (Part IV) – Alteration of Property Delegation of council’s consent (15) The power to consent to alterations to property under this section may be delegated by by-law by the council of a municipality to an employee or official of the municipality if the council has established a municipal heritage committee and has consulted with the committee prior to delegating the power. 2005, c.6, s.21(3). Scope of delegation (16) A by-law that delegates the council’s power to consent to alterations to a municipal employee or official may delegate the power with respect to all alterations or with respect to such classes of alterations as are described in the by-law.2005, c.6, s. 21(3). Section 42 (Part V) – Erection, Demolition etc. Delegation (16) The council of a municipality may delegate by by-law its power to grant permits for the alteration of property situated in a heritage conservation district designated under this Part to an employee or official of the municipality if the council has established a municipal heritage committee and consulted with it before the delegation. 2005, c.6, s. 32(6). Same (17) A by-law under subsection (16) may specify the alterations or classes of alterations in respect of which power to grant permits is delegated to the employee or official of the municipality.2005, c.6, s.32(6). 4 - 16 4 - 17 4 - 18 4 - 19 4 - 20 4 - 21 4 - 22 4 - 23 4 - 24 4 - 25 4 - 26 4 - 27 4 - 28 4 - 29 4 - 30 4 - 31 4 - 32 4 - 33 4 - 34 4 - 35 4 - 36 4 - 37 4 - 38 4 - 39 4 - 40 4 - 41 4 - 42 4 - 43 4 - 44 4 - 45 4 - 46 4 - 47 4 - 48 4 - 49 4 - 50