What follows is a bit of a long-winded rant and can be safely ignored.
On the topic of Quinnipiac at 25 Winter Ave, I find myself confused as to the reasoning of City Council in denying the heritage designation after a strong recommendation from the Heritage Advisory Committee. City Council explained that heritage designation was denied because of concern that such designation could interfere with a pending sale, and the city could be liable for loss of compensation. Specifically, Councilman Tom Hann asked, "What says that, if we designate it heritage and the sale falls through, she can’t come in and say, ‘Well, you know, I had a $1.6-million sale, and here’s the bill, so pay up’? And I don’t know if she probably would have a good legal case to do that" (
http://www.thetelegram.com/News/Local/20...age-designation-for-130-year-old-house/1).
Firstly, Councilman Hann is aware that the City Solicitor is available for legal consultation with City Council. Perhaps the media could have questioned why he did not seek such council and instead chose to settle with ignorance. Secondly, it does not take a legal scholar to know that municipal governments in Canada have broad powers to regulate private property for the general welfare. Specifically, the Supreme Court of Canada ruled in Canadian Pacific Railway v. Vancouver that a municipal government is not obligated to compensate a property owner after regulation of land use so long as the regulation still allowed for some private use of the land. Heritage designation would certainly allow for continued private use (
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16/index.do ). There is also extensive US case law on the subject of regulatory taking that holds, briefly, that government is free to regulate private property for the general welfare provided that such regulation falls short of denying the property owner any economic use of property (
http://en.wikipedia.org/wiki/Regulatory_taking ).
In light of the probable insincerity (or otherwise incompetence) of Councilman Hann's reasoning, I am surprised that the Heritage Advisory Committee had no recourse, either legally or through political pressure. Perhaps going forward, a statute can be enacted to provide the Historic Advisory Committee with a check and balance power against the City Council regarding demolition of built heritage in St. John's.
One popular ordinance in other cities (Chicago:
http://www.cityofchicago.org/city/en/depts/dcd/supp_info/demolition_delay.html , Boston:
http://www.cityofboston.gov/landmarks/article85/ ) is an automatic 90 day demolition delay for any structure either older than a certain age or otherwise determined to have potential heritage importance (a lower threshold than municipal heritage designation). Such an ordinance would not necessarily have saved Quinnipiac from demolition, but would have empowered the Heritage Advisory Committee, perhaps through the Newfoundland and Labrador Historic Trust, to engage in a historical survey of the structure, provide the public opportunity to comment on the demolition, and consider alternatives to demolition. Appropriately, Boston's demolition delay ordinance seeks to reduce the number of demolitions of buildings with no immediate planned re-use of site. Owner Christopher Jackman has not yet submitted plans for re-development of the property.
Another possibility would be to tie demolition of a potential heritage building with an approved plan for re-development. A structure recommended to receive heritage designation by the Heritage Advisory Committee, regardless of designation by City Council, would have demolition delayed until a re-development plan has been approved. This would typically delay demolition simply due to the difficulty of getting development plans approved. Additionally, all discussion of the merits of proposed development would have to be made in light of the merits of preserving the current heritage structure. In the case of Quinnipiac, Dr. Jackman would have had to convince his community and City Council that, not only is either subdivision or construction of a single mansion (or whatever his eventual plan) appropriate for Winter Avenue, it is preferred to alternative plans which preserve the Quinnipiac structure.
Finally, a third approach would be to delegate the power of demolition permit approval to the Heritage Advisory Committee. I understand that in Boston, the Boston Landmarks Commission must first approve an application of demolition before the demolition process can move forward (
http://www.cityofboston.gov/isd/building/demolition.asp ). Currently, City Council has unilateral power to approve demolition permits. Given the irrevocable impact of a demolition on built heritage, this power should rest with an independent committee charged with protecting that heritage, the Heritage Advisory Committee (perhaps renamed simply the Heritage Committee).
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