Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
CORRECTION NOTICE
OLT CASE NO.: PL200646 DECISION ISSUE DATE: July 28, 2021 CORRECTION NOTICE ISSUE DATE: July 30, 2021
RE: Cardinal v. Windsor (City)
Correction to: the Appearances List Section, on page 1 of the Decision
Originally:
APPEARANCES:
| Parties | Representative |
|---|---|
| Michael Cardinal | Self-represented |
Corrected to:
APPEARANCES:
| Parties | Counsel |
|---|---|
| Michael Cardinal | Jeffrey Hewitt |
"Becky Fong" BECKY FONG REGISTRAR Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 28, 2021 CASE NO(S).: PL200646
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Appellant: Michael Cardinal Applicant: Wadah Al-Yassiri Subject: Minor Variance Variance from By-law No.: 8600 Property Address/Description: 2400 Riverside Drive West Municipality: City of Windsor Municipal File No.: A-039/20 LPAT Case No.: PL200646 LPAT File No.: PL200646 LPAT Case Name: Cardinal v. Windsor (City)
Heard: May 26, 2021 by Video Hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Michael Cardinal | Self-represented |
MEMORANDUM OF ORAL DECISION DELIVERED BY JATINDER BHULLAR ON MAY 26, 2021 AND ORDER OF THE TRIBUNAL
1This was a hearing from an appeal under s. 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the “Act”) regarding a minor variance application approved by the Committee of Adjustment (the “COA”) for the City of Windsor (the “City”). Michael Cardinal (the “Appellant”) lives in the vicinity of the proposed development and has appealed the COA decision.
2The Applicant, in this appeal, is the City, which planned to deploy a rejuvenated streetcar around 2400 Riverside Drive West in the City. The municipal record on file shows this to be part of the Celestial Beacon’s initiative at the City. In order to carry this out, a minor variance from City’s Zoning By-law No. 8600 (“ZBL”) was necessary as the structure will be higher than is allowed in the ZBL.
3The granted approval by the COA for the minor variance was to allow development as follows;
exempt from Section 20 (1)3 of Zoning By-law 8600, as amended, so as to permit, in a Green GD1.1 District, the proposed construction of a Municipal building gallery and washroom facilities, thereby providing and maintaining:
(a) A structure building height to extend past the crown of Riverside Drive W. for 2.75 - 3.00 metres.
PARTIES, PARTICIPANTS AND WITNESSES
4The City, as an Applicant party, did not attend to defend their proposal and the COA approval.
5Five participant requests were granted. These were Phillipa Von Ziegenweidt, Our Lady of the Assumption, David Hanna, Elaine Weeks and Howard Weeks.
6There were three witnesses. Tracy Pillon-Abbs, a professional planner, provided expert opinion evidence in the area of land use planning. There were two lay witnesses. These were the Appellant, Mr. Cardinal and Paul Mullins.
EVIDENCE AND ANALYSIS
7If any or all of the tests in s. 45(1) of the Act fail, the appeal will be allowed;
a. Does the minor variance maintain the general intent and purpose of the Official Plan (“OP”);
b. Does the minor variance maintain the general intent and purpose of the Zoning By-law;
c. Is the minor variance desirable for the appropriate use of the land, building or structure; and,
d. Is the minor variance minor in nature.
8Ms. Pillon-Abbs opined that the proposed building is simply too large and too high for the subject property. She added that the development or use of land is not desirable or appropriate. She submitted that existing buildings along the riverfront are low in height and worked into the south bank, so they are barely noticeable when travelling along the Riverside Drive. Ms. Pillon-Abbs concluded and opined that the minor variance fails the test of resulting in appropriate development of the land.
9Ms. Pillon-Abbs reviewed and provided her opinion regarding the intent and purpose of the ZBL. She explained that the subject property is zoned Green District GD1.1. The only two zone provisions included within the zoning by-law are for Lot Coverage and Building Height. In s. 9.1.5 of By- law No. 8600, the maximum building height is 9.0 metres (“m”) or 14.0 m depending on the lot size. In this instance, the larger lot size already accommodates the greater height of 14 m. The by-law also establishes, in a site specific requirement in s. 20(1)3, that for all lands zoned GD1.1, situated on the north side of Riverside Drive East and West, no new building or parts thereof shall be permitted to extend above the crown of the pavement within Riverside Drive adjacent thereto. She opined that to allow a building to extend above the crown of the road, is in direct contravention of the rather purposeful requirement and thus, the minor variance does not maintain the intent and purpose of the ZBL.
10Ms. Pillon-Abbs reviewed the City’s OP and the applicable Special Policy Area, which designates the Subject Property as Central Riverfront Park Lands. She reviewed s. 1.13.14, which states in its lead paragraph that;
The Central Riverfront’s identity is rooted in the physical and cultural links to its past. The Central Riverfront has a rich cultural heritage including native, early colonial settlement, railway, military and urban development. Opportunities for recognizing, conserving and enhancing the heritage and archaeological significance of this area will be integrated into the overall interpretation and development of the Central Riverfront. The following policies will guide the development of the Central Riverfront’s Cultural Heritage.
11She continued the review of other sections including Beacon Policies s. 1.13.20. She specifically cited subsections, which state that;
d. the roofs of the Beacons are to be designed as a landscaped terrace accessible from the Riverside Drive Promenade.
e. the roof level of the Beacons will be at or below the sight line of Riverside Drive.
f. Exception of the Dawn Beacon (existing 19th century water intake facility) all of the proposed beacons will be set within the south slope of the riverbank;
12Ms. Pillon-Abbs concluded that the proposed Beacon is not set within the south slope of the riverbank and roof top level of the Beacon is set at or below the sight line of the Riverside Drive. She opined that the minor variance does not maintain the intent and purpose of the OP.
13In reviewing if the variance is minor, Ms. Pillon-Abbs opined that the test of minor variance is not simply a numerical calculation of variance from 0 m to 2.75 - 3 m above the crown of Riverside Drive as approved by the COA. She added it is equally important to consider contextual impacts on what surrounds it and the people or structure uses it impacts. Ms. Pillon-Abbs opined that considering the totality of elements including impacts on residential dwellings along Riverside Drive, the approved variance is not minor.
14Mr. Cardinal, a resident in the area and the Appellant, submitted that the proposal is out of character with the area that includes bike paths, riverbank sidewalks, pedestrian gathering places, vistas of the Ambassador Bridge and the Detroit City skylines. Mr. Cardinal added that the proposal violates objectives of the City’s own Riverside Drive vista improvement plans.
15Mr. Mullins submitted that he has been engaged in activities related to restoration of Assumption Park and Parish Church, and has discovered historic land donations by Huron Indians, which became the basis through Huron Mission Lands for Assumption Park and Parish Church. Mr. Mullins stated that while he is not an expert in archaeology or historical matters, he believes a thorough review and consultation with indigenous communities is warranted.
16In all respects, the Tribunal finds that the minor variance does not meet any of the statutory tests set in s. 45(1) of the Act and is particularly not desirable or appropriate for the development of the subject lands or site.
17In making this Decision, the Tribunal has also had regard for the decision of the COA and the information and documentation that was before the COA prior to making those decisions and submissions made by participants.
ORDER
18The Tribunal allows the appeal and the minor variance to the City of Windsor Zoning By-law No. 8600 as previously applied for by the City of Windsor and authorized by the Committee of Adjustment for the City of Windsor is denied.
"Jatinder Bhullar"
JATINDER BHULLAR MEMBER Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal.