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The legal implications of heritage designations in Winnipeg

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Winnipeg’s Historical Resources By-law (the “By-law”)  was adopted by City Council on June 1, 2014, replacing the more than three-decades-old Historical Buildings By-law. The By-law enables the City of Winnipeg to designate buildings within its jurisdiction that are of architectural and/or historical significance and regulate the alteration and demolition of same by adding them to the List of Historical Resources.

The By-law also established the Historical Buildings and Resources Committee (“HBRC”),  a volunteer body primarily composed of architects and historians who facilitate the management of heritage buildings in Winnipeg. The HBRC is an advisory committee to City Council, reporting through the Standing Policy Committee on Downtown Development, Heritage, and Riverbank Management (the “SPC”).

Nomination and Evaluation of a Building

To be nominated, a building must be at least 40 years old. There are two ways in which nomination can occur: 1) owner-initiated nomination, whereby the owner seeks to have his/her/its building added to the List; or 2) director-initiated nomination, whereby the Director of Planning, Property and Development (the “Director”) nominates a building to be listed.

Once a building has been nominated, all of the elements of the building are protected from demolition and removal until the HBRC performs an evaluation and makes a recommendation on whether or not the building should be added to the list.

The HBRC has 36 months to perform this evaluation, which consists of a scoring template to assess the building in various categories, including age, design, integrity and cultural associations. The evaluation entails a site visit to the building by the HBRC. Based on the score in the evaluation, the HBRC will recommend whether the property should be added to the list. Should the HBRC recommend the listing of a building, it will issue a report outlining the “Character-Defining Elements”(CDEs) of the building, being the exterior and interior elements that would be protected from alteration or removal in the future should the building be listed. Examples of CDEs might include a building’s front façade or a marble staircase.

Review by the SPC and City Council

After the HBRC completes its evaluation, it will forward its recommendation to the SPC. The building owner will be notified and will be entitled to make a submission in writing or appear at a meeting of the SPC to offer comments. As noted above, the HBRC’s review of a nominated building is limited to the relative heritage merit of the building. The SPC’s review is not restricted in any way.

In performing its review, the SPC will consider the HBRC’s recommendation, the building owner’s position in support or opposition to the HBRC’s recommendation. It may also consider a number of economic factors including: the condition of the building; the cost to maintain the building; the relative value of conservation of the building; and the merits of alternative proposals for the building.

If the SPC, the HBRC, and the owner all agree on the appropriate status of the building, the decision is final. However, if the building owner challenges the HBRC’s recommendation and/or the SPC disagrees with the recommendation, the Executive Policy Committee will consider the nomination and make a recommendation to City Council, which will make a final decision.

Implications of Listing

If a building is added to the list[BC1] , a Historic Property Notice will be filed against the title of the building with the Winnipeg Land Titles Office of the Property Registry, now called Teranet Manitoba, in order to notify the owner and potential purchasers that the property is identified on the list, and as such is subject to the By-law.

In addition, demolition of the building will be prohibited and building owners will be limited in the type and extent of renovations they are permitted to carry out. Any proposed alteration to the CDEs identified will require approval under a Heritage Permit, which are issued by the HBRC and will only allow alterations that are consistent with conservation of the heritage values embodied by the CDEs identified. These renovation restrictions can be burdensome, as the identified CDEs can be costly to maintain and restore. In addition, if a particular element is obsolete or antiquated, replacement parts may no longer be available. Fortunately, owners of a listed building are eligible to apply for heritage grants and incentive programs issued through the City of Winnipeg and the Province of Manitoba.

De-Listing/Removing Designation

The owner of a listed building may apply to the HBRC to have the building removed from the list or to have a listing modified. Upon receipt of an application, the HBRC will have 90 days to make a recommendation to the SPC with respect to the application. Similar to the nomination/evaluation process, owners of a building are free to appear at the meeting of the SPC or to provide a written submission for consideration.

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