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Municipal Law - Planning and development - Heritage property protection - Designation of heritage property

Thursday, September 01, 2016 @ 8:00 PM  

Appeal by the Foleys from a judgment affirming a municipal heritage designation bylaw enacted by the Town of St. Marys. The subject property was a downtown two-storey brick and stone commercial property with a clock tower. It was constructed in 1884 for a local jeweler. The interior still featured original walnut showcases, counters, mirrors and a tall wall clock. The appellants purchased the property in 2004 and leased it until 2010. In 2007, the Town advised the appellants of their intent to proceed with a heritage designation. The appellants indicated they were not interested in the process. In 2008, the Town provided formal written notice of the intent to pass a bylaw implementing the designation. The bylaw was passed the following month. The heritage designation included the original exterior and interior heritage attributes. In 2009, the appellants received $13,000 in municipal heritage funding as a result of the designation. In 2010, the appellants listed the property for sale. They attributed the low interest in the property to the heritage designation of the interior features. In 2015, the appellants applied to quash the bylaw on the grounds of illegality, or alternatively, to sever the portions related to the interior features. The application judge found the appellants had actual notice of the bylaw and that the application to quash was not brought within the one-year limitation period. The Foleys appealed.

HELD: Appeal dismissed. The application judge’s conclusion that the one year limitation period was dispositive of the appellants’ application was fully supported by the record. The bylaw was passed on February 27, 2008 and the notice of application was issued on March 30, 2015. The record clearly established that the appellants had knowledge of the heritage designation. They received related funding in 2009 and a designation plaque in 2010 that explicitly referenced the interior attributes of the building. The limitation period was dispositive of the application, including the severance aspect with respect to the interior features. The application judge was correct to refuse the relief sought on the basis of the limitation period.