Conservation Commission des Review Board biens culturels 655 Bay St Suite 1500 655 rue Bay Bureau 1500 Toronto, ON M5G 1E5 Toronto, ON M5G 1E5 Tel (416) 326-3594 Tel (416) 326-3594 Fax (416) 326-6209 Fax (416) 326-6209 Email: [email protected] Website: www.crb.gov.on.ca ISSUE DATE: October 17, 2012 CRB1003 CONSERVATION REVIEW BOARD RE: THE CORPORATION OF THE TOWNSHIP OF KING – INTENTION TO DESIGNATE THE PROPERTY KNOWN AS 12605 KEELE STREET (“SHIFT PROPERTY”) IN THE TOWNSHIP OF KING, ONTARIO Su Murdoch, Chair Stuart Kidd, Member This Hearing was convened under s.29(8) of the Ontario Heritage Act, R.S.O. 1990, Chapter O.18, amended to 2009 (“Act”), for the purpose of reporting to the Council of the Township of King (“Township”), whether, in the opinion of the Conservation Review Board, on the basis of the evidence it heard, the property known as 12605 Keele Street (“Shift Property”) should be protected by bylaw under s.29 of the Act. The legal description of the property is Part Lot 2, Concession 3, King Township. Notice of this Hearing was served by the Review Board on the Parties and was published in The Weekly Sentinel of August 1, 2012, in the manner required under the Act. A Statement of Service was filed as Exhibit 1. The Hearing convened at 11:00 a.m. on August 13, 2012, at the Township of King municipal office at 2075 King Road. The Hearing ended at about 5:00 p.m. on the same day. No site visit was conducted due to the subject property being under agricultural cultivation. Counsel in Order of Appearance Mr. James Feehely, Solicitor, Feehely Gastaldi, on behalf of the Township of King Mr. Chris Barnett, Solicitor, Davis LLP, on behalf of the property Owner/Objector Hickory Hills Investments Inc. 1 Witnesses in Order of Appearance Ms Wendy Shearer Ms Leslie Maitland Members of the Public in Order of Appearance Ms Elaine Robertson Ms Jane Underhill Ms Virginia Atkins Jurisdiction of the Board All Parties were reminded that the jurisdiction of the Review Board under s.29 of the Act is to hear evidence within the framework of Ontario Heritage Act Regulation 9/06: Criteria for Determining Cultural Heritage Value or Interest (see Appendix B). The Review Board does not address issues of demolition or removal of a building or structure, as these are the jurisdiction of Council and, on appeal, the Ontario Municipal Board. The Review Board does not address issues of the costs of physical maintenance or repairs, as these are outside the evaluation of cultural heritage value or interest. The Review Board does not address any planning permit applications or issues that are under the jurisdiction of the Planning Act. These are between the applicant and the municipality. Evidence on any of these topics will be heard if it gives context to the discussion of cultural heritage value or interest and/or the integrity of any heritage attributes that may support that value or interest. Scope of Inquiry Subject Property Only that part of Lot 2, Concession 3, King Township, that is associated with the art installation known as “Shift” is under consideration for purposes of this Hearing. Shift was created between 1970 and 1972 by American artist Richard Serra for the then property owner Roger Davidson, a Canadian art collector and dealer. In 1974, Davidson sold the property including Shift to Hickory Hills Investments Inc., the current owner. Shift consists of two groups of three, angled linear poured in place concrete walls of varying lengths strategically set in the rolling contours of a field with two hills and a valley between. No wall exceeds two metres in height. The distance between the farthest extent of the walls is 269 metres. No part of the balance of the property is being considered for protection under the Act. 2 Agreed Statement of Fact A Draft Agreed Statement of Fact was received by the Review Board on July 31, 2012. This was substituted by the Parties with a Final Agreed Statement of Fact and entered as Exhibit 2. There was no change in the text. Essentially, this Agreed Statement establishes the facts of the creation, form, context, and condition of Shift; as well as the career significance of its artist Richard Serra. There were no agreed facts regarding the protection of all or part of this property under s.29 of the Act. Statement of Cultural Heritage Value The Review Board was informed on July 31, 2012, that the Parties agree on the draft wording of the Statement of Cultural Heritage Value contained in Tab 9, Exhibit 3 (Shearer Witness Statement; see Appendix A). This agreement extends to the determination of the subject property as the 4.03 ha parcel within part Lot 2, Concession 3, King Township, that is associated with Shift (“Shift property”). At Issue At the start of the proceeding and as evident in the Witness Statements of Ms Shearer and Ms Maitland, the Parties concur that the portion of the subject property that contains Shift meets the test of Ontario Regulation 9/06: Criteria for Determining Cultural Heritage Value or Interest as a candidate for protection under s.29 of the Act. At issue is whether or not s.29 of the Act should be invoked. The Township contends that the Act is the only mechanism available to Council to protect and conserve the Shift property. The Owner/Objector contends that Regulation 9/06 is “too broad” and that the application of s.29 of the Act is unnecessary and “cannot affect the conservation” of the Shift property. Identified Issues The evidence presented at this Hearing raised a number of issues which this Report will address: 1. The jurisdiction of s.29 of the Act 2. Interpretation of the Ontario Heritage Act and Regulation 9/06 3. Wording of the Draft Statement of Cultural Heritage Value 4. What is best for Shift? Witness – Wendy Shearer Factual Background of Subject Property and Shift Both legal counsels requested that Ms Wendy Shearer present the factual background of the subject property and Shift on behalf of the Parties. Ms Shearer was sworn as an expert witness in cultural heritage landscape evaluation and 3 landscape conservation. Her Witness Statement was entered as Exhibit 3. The Review Board reminded Ms Shearer (and Ms Maitland who was in attendance) that as stated in their signed Acknowledgements of Duty as an Expert Witness, their role is to inform the Review Board and not to solely espouse the position that supports their client’s interest. Ms Shearer explained at this time and in subsequent testimony that the original farmstead at this location was 97.5 ha accessed from Bayview Avenue. Urban development on the west half of the original parcel left the remaining farm and forested area fronting on the west side of Dufferin Street, being Lot 2, Concession 3, King Township. Within that remaining parcel of land, the Shift property is at the northwest corner, about 600 metres distant from the nearest farm buildings at Dufferin Street. There is no access to the Shift property from Dufferin. The Shift property is bordered on the north, west, and south by naturalized vegetation including woodlots and a heronry. The east limit is hilltop topography. Lowland grasses are growing in wet areas near the site. Source: Tab 7, Exhibit 3 4 View of the wooded backdrop is unobstructed access the winter landscape. (View north east) Source: Tab 6, Exhibit 3 Due to the rolling topography of the property, Shift is not visible from any public location. The public is currently trespassing through a woodlot to enter the Shift property from the northwest. Shift’s artist, Richard Serra, is acknowledged as “one of the most significant artists of the late 20th and early 21st century.” Based on a review of his design sketches, it is apparent to Ms Shearer that Serra analysed the natural topography of the field when selecting the location for Shift. The boundary of the sculpture is the outside limit of the walls. Its length is closely related to the distance two people travelling away from each other can still keep the other person in view. The walls are constructed of poured in place concrete. Each straight wall section is level and none exceed two metres in height. There is a step down in the composition wherever there is a five foot differentiation in land elevation, thereby achieving the overall effect that Shift is responding to the contours of the field. Each wall end is angled to fit together although there is a gap of 24.53 metres between the two wall structures where the natural low ground intersects the sculpture. The boundary of the setting for Shift is defined by the three vegetated sides on the south, west, and north. On the eastern side the setting is bounded by the highest point of land on which a visitor can stand and still have the entire sculpture in view. As the visitor proceeds farther to the east, the grade changes, the ground slopes down, and the western end of the wall is no longer visible. The boundaries of this setting enclose 4.03 ha of land. The distance separation from the sculpture walls to the edge of the field vary and range from 18 metres to the north, 38 metres to the west, and 35 metres to the south at the closest point. 5 Case for the Municipality Witness – Leslie Maitland Ms Leslie Maitland was sworn as an expert witness in cultural heritage property evaluation and conservation.