Heritage Laws Suck

"Heritage protection fails for the same reason other regulations fail."

The above quote was the subtitle of an article on the second page of the business section of the Toronto Star.

Like illegal parking, the ambiguity of heritage laws and the inconsistency of enforcement efforts aren’t entirely displeasing to the parties affected. Police love illegal parking. If the police devoted as much manpower to dangerous crimes (no one has ever been killed by a parked car), this City would be a much safer place, but how can they afford to forego the windfall offered by parking enforcement?

I know heritage preservationists want to protect as much as possible, and developers want unencumbered access to the dirt beneath heritage buildings, but what a dreary world it would be without the crusades and incursions across the blurry lines of heritage preservation law and practice.

As land use intensifies in downtown Toronto, heritage-encumbered properties are increasingly attractive to developers because they offer opportunities for horse-trading with municipal government. A tightening of heritage laws would leave them less latitude to court favour with city councils and community leaders. If developers couldn’t work with heritage-encumbered sites as a means of placing private capital in public places, they’d only find more nefarious ways to acquire land.

On the opposite side of the table, heritage bureaucrats and community advocates are equally content with laws that let them pick and choose their battles. And with 9,600 buildings in the Toronto Heritage Inventory, dozens of which are preserved at the expense of government, there’s lots to pick and choose from. In fact, heritage preservationists may be suffering from their own success, as the cost of maintaining these buildings rises faster than the funding they depend on. Whether they’re adding to this inventory or disposing of property, preservationists need the right to exercise discretion, not laws that explicitly compel them to adopt certain buildings or abandon others.

Part of the reason dysfunctional regulations and enforcement are permitted to exist is because it is public sentiment, not law, architecture, or historic pedigree, that assures a building’s survival. By making sentiment the prime consideration in the selection and repurposing of heritage buildings, the whole debate about regulation and preservation would take on a more constructive direction.

heritage triangle

The underlying idea is encapsulated in a scheme that was presented by my friend, Robin Uchida, at a culture and heritage symposium a few years ago (for which he credits William McDonough). If we follow his direction, new resources will be drawn to the repurposing of heritage buildings, existing resources can be concentrated on the most valuable sites in our heritage portfolios, and the buildings we care most about will continue to serve us for generations to come.

As you look at his diagram, think of any old building you’re familiar with, and you’ll see the validity of this scheme. Projects that address only one or two of the points on this triangle don’t typically result in an enduring outcome.

Think for example of the old bank building across from the Eaton Centre, which was once the ungainly home of the Toronto Historical Board (now Heritage Toronto) until 1998. Since then, the building has remained empty.

This year, it was purchased by MOD Developments who will save part of the building as a portal into the 60-story Massey Tower under a heritage easement agreement with the City. It’s a good example because it requires a heritage easement agreement to unlock the potential of the building for any viable use whatsoever, after this prominent building, on Toronto’s most famous street, languished for almost 15 years under our “protection.” The triumph of the preservationist, in isolation, is no triumph at all.

Projects that take all three corners of the triangle into account typically turn out better. Although there are good institutional examples, like the National Ballet School on Jarvis Street, there are more modest, commercial examples like the Tim Horton’s that replaced the 117-year old Winchester Tavern in Cabbagetown. Now I regret the loss of a tavern as much as the next person, but this was a happy outcome in terms of architecture and heritage when compared with the old Morrissey Tavern, at Davenport and Yonge, which disappeared without a trace shortly before the Winchester makeover. Both old hotels were shrines of a kind, but one is still a landmark while the other has become land-fill. One was protected, and one was not. One had a neighbourhood constituency that rose in defence of it, and the other did not. And one was deemed beneficial to the financial plans of a developer and the other was not.

In the simplest terms, this scheme dictates that we don’t save buildings just because they’re old; they have to mean something to the community, they have to fit somehow in the evolving urban environment, and they have to have a make a direct or indirect economic contribution.

Translate this simple scheme into criteria for preserving heritage buildings, and Toronto would have clearer rules about the sites that truly matter, and the about the purposes they can be put to. It will help developers to spot prime opportunities and help preservationists to make intelligent choices about which among the 9,600 listed heritage buildings have any real long-term prospect, and their victories will be lasting and meaningful.

Write laws around these principles, and the old game between preservationists and developers will become much more creative and constructive than it is now. New resources will be drawn to the repurposing of heritage buildings, existing resources can be concentrated on the most valuable sites in our heritage portfolios, and the buildings we care most about will continue to serve us for generations to come.

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