Antonio Buttice et al. v. City of Windsor, 2023 CanLII 116929

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 05, 2023

CASE NO(S).: OLT-22-003819

PROCEEDING COMMENCED UNDER subsection 34(19) of the Planning Act, R.S.O. 1990, c. P. 13, as amended

Appellant: Antonio Buttice et al.

Subject: By-law No. 67-2022

Description: To permit a 4 Storey multiple dwelling Reference Number: BL 67-2022 Property Address: 1913, 1925 & 1949 Devonshire Court Municipality/UT: City of Windsor

OLT Lead Case No.: OLT-22-003819

OLT Case No.: OLT-22-003819 OLT Case Name: Buttice v. Windsor (City)

Heard: October 17, 2023 to October 20, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

Antonio Buttice et al.

Raymond Colautti

2811035 Ontario Inc. City of Windsor

Analee Baroudi Wira Vendrasco

DECISION DELIVERED BY S. deBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision results from the Hearing of the merits conducted in respect to the appeal (“Appeal”) from Antonio Buttice et al. pursuant to s. 34 (19) of the Planning Act against the decision of the City of Windsor (“City”) to approve the Zoning By-law Amendment (the “ZBA”) application to the City of Windsor Zoning By-law 8600.

2The nature of the Appeal is that the proposed amendments to Zoning By-Law 8600 are not consistent with the Provincial Policy Statement, 2020, and that they do not conform to the policy direction of the City of Windsor Official Plan in general, and to the Heritage Conservation policies specifically.

3The Municipal addresses of the Subject Properties are 1913, 1925 and 1949 Devonshire Court, Windsor (“SP”).

4The Applicant is requesting an amendment to Zoning By-law 8600 to allow a multiple dwelling as an additional permitted use subject to additional provisions. The Applicant proposes to construct a multiple dwelling with a maximum building height of 15 metres, containing 23 dwelling units within a total of four storeys. A total of 30 parking spaces, including two accessible parking spaces, 21 bicycle spaces and one loading space are a part of the proposal (“Proposal”).

BACKGROUND

5The Appeal was filed on April 21, 2022 by the Appellant. However, the history of the SP needs to be explained as the properties’ history and the process leading up to and including the Applicant’s application is a part of the Appellant’s case.

6The SP is located in the Walkerville Heritage Area as identified in the City OP. The SP is located at the southern portion of the Walkerville Heritage Area. This Heritage Area is bordered by the major commercial street corridors of Ottawa Street to the south, Lincoln Road to the west, Riverside Drive East to the north and Walker Road to the East. The SP is located approximately 100 to 150 metres from Ottawa Street.

7The SP was originally the site of the Memorial Hall of St. Mary’s (Anglican) Church and was constructed in 1921. A larger church was built in 1955 on the remainder of the property and the original church then became a connected church hall, or larger meeting hall for all intents and purposes. The SP was listed in the City’s Heritage Register, but had not been designated as such.

8In September of 2015, the (Anglican) Diocese of Huron submitted a Heritage Alteration Permit, requesting a demolition of both buildings, citing that the buildings had become unrepairable and needed to be demolished. The Heritage Alteration Permit (“HAP”) was a requirement of the Ontario Heritage Act as a notice of intent to the City of such demolishment.

9The SP was zoned as “Institutional” (ID 1.1) at the time of HAP request. It was the intent of the Diocese of Huron to have the buildings demolished and the SP redesignated as Residential (RD 1.1), and to create three residential lots that could then be used to build three homes that, in the City’s view, fit into the existing neighbourhood.

10The City’s Planning and Building Services Department issued a report to City Council (“Calhoun Report”) recommending the demolition permit be granted for the SP. The SP was removed from the heritage register by Council on December 12, 2016. The SP was rezoned from ID 1.1 to RD 1.1 in January of 2017, with a site-specific exception to allow the construction of three single dwelling units. A demolition permit was issued by the City on September 12, 2017, and demolition was completed on November 1, 2017.

11The Diocese of Huron sold the now three single dwelling lots to Vanderbilt Homes Ltd. sometime in 2018. The lots sat vacant until February 2021, when the Applicant bought the SP from Vanderbilt Homes Ltd.

12The Applicant then brought forth an application, including all the relevant requested studies, on August 31, 2021. Said Application was deemed complete by the City on September 28, 2021.

13The relief being sought through the site-specific Zoning By-law Amendment by the Applicant was:

1. to allow for the zoning to include the permitted use of a multiple dwelling;

2. included additional relief being requested for the permitted use of multiple dwellings:

a) to increase the maximum building height from the required 14m to 15m;

b) decrease the minimum front yard depth from the required 6.0 m to 1.9 m;

c) decrease the minimum rear yard depth from the required 7.5 m to 1.2 m; and

d) decrease the minimum landscaped open space from the required 35% spaces to 27%.

14On February 9, 2022, additional information and support studies were requested by the City as a part of the Application. All of the updated studies were accepted by the City.

15The Application was presented to the City Development and Heritage Standing Committee (“DHSC”) for the March 7, 2022 public meeting. After the public meeting and in consideration of those comments, the Application itself, and the recommendations though the Staff Report, City Council approved the Application on March 21, 2022. Following that, Council passed Zoning By-law 67-2022 rezoning the SP to allow for the following:

1. That Section 20(1)340 BE DELETED AND REPLACED with the following:

2. SOUTHEAST CORNER OF DEVONSHIRE COURT AND KILDARE ROAD

For the lands comprising Lots 84 to 87, Registered Plan 684 designated as Parts 1 to 4, Plan 12R027198 a multiple dwelling shall be an additional permitted use and:

1. For any dwelling, the following additional provisions shall apply:

a) An access area or driveway is prohibited in any front yard or exterior side yard. Access to parking space shall be from an alley.

b) Exposed flat concrete block, untextured concrete whether painted or unpainted and vinyl siding on any exterior wall is prohibited. A minimum of fifty percent of the area of any exterior wall shall be covered by brick, textured concrete block, stucco, stone or any combination thereof.

2. For a single unit dwelling, the following additional provisions shall apply:

a) Main Building Height – minimum 7.00 m

b) Front Yard Depth – minimum 7.50 m

3. For multiple dwelling, the following provisions shall apply:

a) Lot Width – minimum 35.0 m

b) Lot Area – minimum 2,152.0 m²

c) Lot Coverage – maximum 35%

d) Main Building Height – maximum 15.0 m

e) Building Setback – minimum

1. From that part of the lot line abutting Kildare Road 2.62 m

2. From the part of the lot line abutting Devonshire Court 3.39 m

3. From the midpoint of the 20 ft. radius of Lot 87 RP 684 1.89 m

4. From an interior lot line 1.20 m

f) Landscaped open Space Yard – minimum 27.5% of lot area

g) Dwelling Units – maximum 23

LEGISLATIVE FRAMEWORK

16A Hearing pursuant to subsection 34(19) of the Planning Act puts the onus on the Appellant to demonstrate to the Tribunal that the approved planning instrument (in this case, a Zoning By-law Amendment Application) is not consistent with the Provincial Policy Statement, 2020, (“PPS 2020”), does not maintain the general intent and purpose of the City of Windsor Official Plan, nor, for this matter, does it conform to the City of Windsor’s heritage conservation policies.

THE HEARING OF THE MERITS

17As per the Tribunal-approved Procedural Order and Issues List, the following were the pertinent issues to be examined and ruled upon by the Tribunal:

Heritage Issues

1. Will the proposed ZBA result in development that is of compatible height, massing, scale, setback and architectural style, as required by section 9.3.5(ii) of the City of Windsor Official Plan?

2. Will the proposed ZBA result in development that has regard for the following factors, as required by section 9.3.7.1(e) of the City of Windsor Official Plan?

(i) respecting the massing, profile and character of adjacent buildings;

(ii) approximating the width and established setback pattern of nearby heritage buildings;

(iii) respecting the yards, gardens, trees and landscaped grounds associated with the heritage properties and districts which contribute to their integrity, identity, and setting;

(iv) maintaining, enhancing or creating views and vistas of heritage resources; and

(v) minimizing the impact of shadowing on adjacent heritage properties, particularly on landscaped open spaces and outdoor amenity areas.

3. Has a Built Heritage Impact Study been submitted to the satisfaction of the City Planner, as required by section 9.3.7.1.(i) of the City of Windsor Official Plan?

4. Is the prior Heritage Impact Study, dated October 23, 2015 and done by the City of Windsor Staff Heritage Planner, relevant to the determination of whether the ZBA should be approved?

Planning Issues

5. Will the proposed development be compatible with the surrounding neighbourhood with respect to height, massing and setbacks?

6. Is the proposed parking for the development sufficient?

18The Tribunal heard oral testimony from the following witnesses:

Representing the Appellant:

Antonio Buttice – (the Appellant) who gave will say evidence concerning the Proposal.

Roger Bastiaan – an abutting neighbour and Appellant Party member who gave will say evidence concerning the Proposal.

Maged Basilious – a professional architect who was qualified to give expert opinion evidence in the area of architecture.

Representing the Applicant:

Tracey Pillon-Abbs – the professional planner who submitted the application on behalf of the Applicant. She was qualified to give expert opinion evidence in the area of land use planning.

Dan Currie – the professional planner who provided the Building Heritage Impact Study (“BHIS”) on behalf of the Applicant. He was qualified to give expert opinion evidence in the area of heritage land use planning.

Stephen Berrill – the architect who provided a shadow study as a part of the Application. He was qualified to give expert opinion evidence in the area of architecture and shadow impacts.

Representing the City:

Adam Szymczak – the City Planner who recommended the application for approval by the City. He was qualified to give expert opinion evidence in the area of land use planning.

19The following items were approved as exhibits to the Hearing:

Exhibit 1 Joint Document Book Vol. 1

Exhibit 2 Joint Document Book Vol. 2

Exhibit 3 Curriculum Vitae of Maged Basilious

Exhibit 4 Acknowledgement of Expert’s Duty, Maged Basilious

Exhibit 5 Colautti Photos and Video

Exhibit 6 Aerial GIS View of Devonshire Court

Exhibit 7 Aerial GIS of Alley Behind Subject Property

Antonio Buttice

20In his oral testimony, Mr. Buttice stated that he and his family have lived at 1948 Devonshire Court for more than 20 years. His dwelling is located directly across from the SP. He stated that when the church was demolished, he felt that it was an appropriate option to build three dwellings that would match or “fit in” to the existing neighbourhood.

21Mr. Buttice stated that once the Applicant applied to rezone the SP for something that was not previously approved, he felt that City Staff and Council did not act in an appropriate manner and did not take into account the previous zoning for the three single unit dwellings.

22Mr. Buttice stated that the planning report authored by Mr. Szymczak did not mention, explain or deal with the fact that the previously-accepted Calhoun report stipulated that the property should be built with three single dwellings and that the proposed ZBA does not conform to the current land use.

23Mr. Buttice stated that Planning Staff were forcing this Application through, as it was known to Staff that a new intensification guidelines (“Intensification Guidelines”) study was to be adopted by Council that would render this Application not viable.

24Mr. Buttice stated that the Intensification Guidelines that were adopted in June of 2022 would have limited any low-profile apartment building to three storeys, which is less than the four-storey proposal that was approved by Council.

25Mr. Buttice stated that City Staff must have been aware of the upcoming Intensification Guidelines when Mr. Szymczak prepared his report on the ZBA proposal and yet the upcoming Guidelines were not mentioned in his report.

26Mr. Buttice stated that the Appellants in this matter do not oppose any development of the SP for single dwelling homes. However, Mr. Buttice stated that the complete disregard of the Calhoun report in making a decision on the Application was erroneous of both City Staff and Council and that, had the Calhoun report been taken into account throughout this process, Staff and Council would have come to a different conclusion regarding the Zoning By-law Application.

Roger Bastiaan

27In Mr. Bastiaan’s oral testimony, he stated that during the rezoning process for the St. George’s Church demolition there was significant community consultation and involvement for the City’s Heritage Planning Department to create lots that would have to fit into the physical appearance of the neighbourhood.

28Mr. Bastiaan stated that the Zoning By-law that was presented to Council and Approved by the Applicant shows a blatant disregard for the previous decision made by Council. Mr. Bastiaan stated that the decision made in 2016 on the SP should not just be vacated without a proper explanation by the City.

29Mr. Bastiaan stated that the lack of transparency, lack of a proper explanation and a willingness of the City to abandon the previous zoning so quickly makes him feel that deception has been perpetrated on the citizens and homeowners surrounding the SP.

30Mr. Bastiaan stated that if the Tribunal were to dismiss the Appeal, it would set a precedent that would allow anyone living in the Walkerville area to convert their properties into apartments, thus ruining the character of the neighbourhood. Once this were allowed to occur, there would be no limit to the ways residential density could be increased.

31Mr. Bastiaan stated that the proposed setbacks on the SP are too small and do not fit in with the rest of the neighbourhood – the Proposal virtually eliminates the front, side and rear setbacks for the SP.

Maged Basilious

32Mr. Basilious took the Tribunal through his report, which demonstrates that the ZBA did not take into account the previous church and the footprint thereof. He stated that the church footprint and height demonstrate how much more shadow will be created by the new development (twice as much shadow as the church).

33The City did not use the church’s height or footprint in any context when preparing its recommendation report to Council. Mr. Basilious stated that it would have been in everyone’s best interest to demonstrate the difference in potential shadow effect by using the church’s height as a part of the City’s report.

34Mr. Basilious took the Tribunal to his report to demonstrate the proposed building’s mass and its proximity to Kildare Street and Devonshire Court. Mr. Basilious stated that the new building will impede sightlines with adjacent properties, including the appellant’s properties. Mr. Basilious stated that the massing of the new building is approximately seven times larger than any home in the area.

35Concerning privacy, Mr. Basilious stated that the new building could impede the use of the front yard properties directly across the street from the site due to the windows that would be facing these front yards.

36Concerning parking, Mr. Basilious stated that the new build has only 30 parking spots, whereas most of the units have two bedrooms. He stated that the parking requirements will not be sufficient as most of the units will have two vehicles per unit. Based on 23 units, he stated that 30 parking spaces will be inadequate.

37Concerning sky views, Mr. Basilious stated that the new build could impede the view of the sky by the properties across the road on Devonshire court. He stated that everyone has a right to view the sky and that this development could impede the existing homeowners from having that privilege.

38The final concern of Mr. Basilious was that the proposed building has a flat roof, which could cause a “heat envelope” in the area and if not properly mitigated, this could raise the localized ambient temperature by 1.5 to 2 degrees Celsius.

Dan Currie

39Mr. Currie prepared the BHIS report as apart of the application process for this file. Mr. Currie confirmed to the Tribunal that the SP is not within a Heritage Conservation District as per Part V of the Ontario Heritage Act. The SP is not located adjacent to properties that are listed or designated under the Ontario Heritage Act.

40Mr. Currie confirmed that the SP is located within a “Heritage Area” as per the City OP. Mr. Currie further confirmed that, nearby the SP, there are four properties listed on the Municipal Heritage Register, these being 1912, 1924, 1948 and 2050 Devonshire Court. Mr. Currie also confirmed that there is one heritage-designated nearby, a property known as 1287 Kildare Road.

41The purpose of the BHIS study was to assess the impact of the proposed development on the nearby heritage properties and the impact it may have to the surrounding area.

42It was Mr. Currie’s overall opinion that the Proposal before the Tribunal would not have any adverse impact on the heritage properties listed above; the proposal would not result in the destruction or alteration of any nearby heritage resources.

43Mr. Currie’s opined that the BHIS study concluded that the Proposal would conform to the policies of the OP, as the built form, height and materials used will help support the character of the surrounding area.

44Mr. Currie took the Tribunal through the issues that pertained to his study:

1. Will the proposed ZBA result in development that is of compatible height, massing, scale, setback and architectural style, as required by section 9.3.5(ii) of the City of Windsor Official Plan?

45Mr. Currie opined that the Proposal is compatible, as the Walkerville Heritage Area is not of uniform height, massing, scale setbacks and architectural styles, there are a number of examples of multi-unit buildings of a similar scale in the area, and the Proposal is compatible and able to co-exist with the surrounding area as there will not be adverse impacts to the surrounding neighbourhood.

2. Will the proposed ZBA result in development that has regard for the following factors, as required by section 9.3.7.1(e) of the City of Windsor Official Plan:

(i) respecting the massing, profile and character of adjacent buildings;

(ii) approximating the width and established setback pattern of nearby heritage buildings;

(iii) respecting the yards, gardens, trees and landscaped grounds associated with the heritage properties and districts which contribute to their integrity, identity, and setting;

(iv) maintaining, enhancing or creating views and vistas of heritage resources; and

(v) minimizing the impact of shadowing on adjacent heritage properties, particularly on landscaped open spaces and outdoor amenity areas. Mr. Currie gave opinion that the Proposal is not disproportionate in height to the heritage resources in the area and that its design will respect the character of the area. He further opined that, even though the proposal does not have similar setbacks to the neighbourhood, the proposal does offer landscape features that will result in there being compatible setbacks and orientation of the proposed building?

46It was Mr. Currie’s opinion that the Proposal will not impact heritage resources in the area such as yards, gardens, etcetera. The view of these heritage resources will continue to be visible from the public right-of-way on Devonshire Court and Kildare Road.

47After reviewing the shadow study of Mr. Berrill, it was Mr. Currie’s opinion that there would not be any shadow impacts created to the heritage properties.

48Mr. Currie gave opinion that the Proposal does have regard to 9.3.7(e) of the OP and has met its requirements.

1. Has a Built Heritage Impact Study been submitted to the satisfaction of the City Planner, as required by section 9.3.7.1.(i) of the City of Windsor Official Plan?

49It was Mr. Currie’s opinion that the BHIS submitted was to the satisfaction of the City Planner and the report was prepared in accordance with s. 9.3.7(i) of the OP. Mr. Currie gave opinion that the initial report which was filed in August 2021 had comments from City Staff that required some updates. The updated report was submitted in February 2023 and was to the satisfaction of the City Planner.

Stephen Berrill

50Mr. Berrill took the Tribunal through his review of the shadow study that was a part of the Application. It was his opinion, through his report, that the shadow study demonstrates that there were not any significant impacts based on the shadows that would be created by the proposed development/multiple dwelling. Mr. Berrill gave opinion that there may be one hour per day early in the morning during the winter equinox where the projected shadowing would affect the properties across the Street on Devonshire Court. It was his opinion that this is a seasonal occurrence and, as such, there would be no unacceptable adverse shadow impacts to the adjacent properties.

Tracy Pillon-Abbs

51Ms. Pillon-Abbs confirmed for the Tribunal that she had been retained since March 2021 to prepare the Application that is now before the Tribunal. Ms. Pillon-Abbs took the Tribunal through the history of the Application and identified all the submissions and studies and that had been required for the Application. Ms. Pillon-Abbs confirmed for the Tribunal that a virtual open house was held on May 20, 2021 and that 33 people attended. The comments from the open house were summarized and are included in her Planning Rationale Report that was a part of the finalized Application.

52Ms. Pillon-Abbs confirmed that the Application and Staff Report were submitted and presented to the City’s Development Heritage Standing Committee (“DHSC”) on March 7, 2022. The Staff Report was then presented to Council and approved on March 21, 2022.

53It was the opinion of Ms. Pillon-Abbs that the Application met all the criteria and tests as set out in the PPS and the City OP. As for the specific issues before the Tribunal, Ms. Pillon-Abbs gave her opinion on issues 5 and 6 as they focused on planning issues.

5. Will the proposed development be compatible with the surrounding neighbourhood with respect to height, massing and setbacks?

54It was the opinion of Ms. Pillon-Abbs that the proposal is consistent with the PPS as it meets policies of 1.1.1 (a), (b), (c), (e), 1.1.3.2, 1.1.3.4 and 1.1.3.6. These policies require that land use be efficient, provide for a mix of housing types, that it promotes intensification, is transit-supportive and uses existing infrastructure. This proposal meets all of these policies.

55Concerning the City OP, it was the opinion of Ms. Pillon-Abbs that the proposal conforms with the following policies.

56Section 3.2.1.2 of the City OP encourages a wide range of housing types in existing neighbourhoods. The proposal will provide a new housing choice option to the existing area. With a main travel corridor within a short walking distance, there are many amenities within close range.

57Section 6.2.1.2 of the OP permits what is considered a “medium profile building”. While this can be considered at the low range of a medium profile, a maximum building height of 15 metres is still required, which is one metre more than the permitted 14 metres. Ms. Pillon-Abbs opined that the one-metre request is minor in nature and will allow the proposal to fit into and be compatible with the neighbourhood.

58Section 6.3.1.1 and 6.3.1.2 are policies concerning a wide range of housing types. The form presented to the Tribunal is an efficient infill intensification that is an appropriate housing option that is not available in the surrounding neighbourhood. In the opinion of Ms. Pillon-Abbs, the proposal’s form is appropriate considering the context of the surrounding neighbourhood.

59Section 6.3.2.5 of the City OP sets out the evaluation criteria for a new development. It was Ms. Pillon-Abbs’ opinion that the proposal will provide an appropriate transition from a commercial and main travel thoroughfare to the low-density single detached homes that predominate the neighbourhood. The proposal does not abut any rear yard amenity spaces of the surrounding residential dwellings.

60It was the opinion of Ms. Pillon-Abbs that the Proposal has been designed to be compatible with the existing built-up area and the overall character of the Walkerville Heritage Area. It was her opinion that the proposal is compatible with the neighbourhood and there are no anticipated mitigation issues required in order that the proposal be compatible as stated in Mr. Currie’s BHIS report. It was her opinion that, even though the proposal is different in the form of massing, height, and setbacks, it is still deemed to be compatible and will not hinder nor obstruct any views of the heritage resources, and that the proposal will be an improvement over an existing vacant lot and provide needed housing options.

61Sections 8.2.2.3 and 8.2.2.4 of the City’s OP concerns the character of Heritage Areas. It was Ms. Pillon-Abbs’ opinion that Mr. Currie’s report addressed these concerns and that the proposal conforms to these policies.

62Sections 8.7.1.2, 8.7.1.3, 8.7.1.5 and 8.7.1.7 focus on design and built form maintaining the character of the area. Ms. Pillon-Abbs stated that the BHIS report confirms her opinion that the design as presented is a needed form and is appropriate for the area.

63Section 8.7.2.3 concerns the direction of infill properties in the City OP. It was Ms. Pillon-Abbs’ opinion that the proposal conforms to this policy and agrees with the conclusions of the BHIS report, which states that the proposal will fit into the exiting neighbourhood.

64It was the opinion of Ms. Pillon-Abbs that the proposal does conform with the City OP and the proposal will be compatible with the surrounding neighbourhood with respect to height, massing and setbacks.

6. Is the proposed parking for the development sufficient?

65Concerning the parking requirements for the development, it was Ms. Pillon-Abbs’ opinion that the parking allotment of 30 parking spaces is above the required minimum 28.75 spaces of the ZBL. Her opinion was that the parking is to be considered to be out of view from the Appellant’s properties. The parking area will make use of the existing alleyway abutting the south end of the property for access to Kildare Road. There is not any relief being sought from the ZBL as the application has more parking spaces available than the required minimum deemed necessary. There is public transit available on Ottawa Street that can allow pedestrians to get to other amenities. In the opinion of Ms. Pillon-Abbs, the proposal surpasses the minimum requirements and the City is satisfied with the allotment of parking spaces for the proposal.

66It was Ms. Pillon-Abbs’ conclusionary opinion that the proposal before the Tribunal is an appropriate redevelopment of an infill vacant property. The proposal is compatible with the surrounding neighbourhood and will bring a much-needed housing option to the area, and will fit into the existing neighbourhood and provide an appropriate transition from a commercial setting to a residential setting in the Walkerville Heritage Area. It was her opinion that the proposal has regard for matter of Provincial interest as set out in s. 2 of the Planning Act, is consistent with the PPS and conforms to the general intent and purpose of the City’s OP and with the City’s ZBL and therefore that the proposal is good land use planning and should be approved as presented to the Tribunal.

Adam Szymczak

67Mr. Szymczak confirmed for the Tribunal that he was the person that was in charge of the Applicant’s application and that he was the person responsible for the Planning Report that was considered before the DHSC and Council.

68Mr. Szymczak explained that in planning terms, the definition of “compatible” most often referred to can be found in Motisi v. Bernardi, 1987 CarswellOnt 3719, (1987) O.M.B.D. No. 2, 20 O.M.B.R. 129:

69“Being compatible with is not the same thing as being the same as. Being compatible with is not even the same thing as being similar to. Being similar to implies having a resemblance to another thing; they are like one another, but not completely identical. Being Compatible with implies nothing more than being capable of existing together in harmony.”

70It was Mr. Szymczak’s opinion that the proposal does meet the criteria of compatibility as the proposal will coexist with the surrounding neighbourhood in terms of scale, massing, height, orientation, setback, parking and amenity areas. Mr. Szymczak confirmed that the character of the Walkerville Heritage Area is primarily residential and single detached dwellings. Mr. Szymczak also confirmed that there are multi-unit buildings up to four storeys located on the edges of the Walkerville Heritage Area near major collector or arterial roads. It was Mr. Szymczak’s opinion that the proposal before the Tribunal is consistent with these built forms given the location of the proposal next to or near an arterial road, this being Ottawa Street.

71Mr. Szymczak opined that the proposal had been thoroughly vetted in terms of the compatibility issue and the reports that were submitted by the Applicant met all the requirements of the City and confirmed the compatibility of the proposal.

72Mr. Szymczak took the Tribunal through his opinions on the issues at hand concerning this matter.

1. Will the proposed ZBA result in development that is of compatible height, massing, scale, setback and architectural style, as required by section 9.3.5(ii) of the City of Windsor Official Plan?

73Mr. Szymczak’s opinion concerning this issue is that the Applicant has demonstrated through the Application process that all the requested planning justification reports, including but not limited to the BHIA, Traffic Impact Study and the Planning Rationale Report, met the concerns of Planning Staff. It was his opinion that the proposal can coexist with the existing land uses. The massing, height, setbacks and architectural style have been demonstrated by the Applicant to meet the criteria of compatible.

74Mr. Szymczak opined that the location of the Proposal being on the edge of the Walkerville Heritage Area and near an arterial roadway, is similar to other buildings of similar nature in the Heritage Area. These similar buildings in terms of height and massing demonstrate the issue of compatibility with regards to the location and size of the proposal.

75It was Mr. Szymczak’s opinion that the architectural style that has been presented by the Applicant demonstrates the Applicant’s desire to have a structure that will be aesthetically pleasing to the eye and fit into the neighbourhood, and that, even though changes in Bill 23 do not require to take into account the aesthetics of the neighbourhood, the Applicant has demonstrated that they are willing to keep the aesthetics as close as possible to match the aesthetics of the neighbourhood.

76Mr. Szymczak opined that the proposal will result in a compatible form in height, massing, scall, setback and architectural style as per the City’s OP.

2. Will the proposed ZBA result in development that has regard for the following factors, as required by section 9.3.7.1(e) of the City of Windsor Official Plan?

(i) Respecting the massing, profile and character of adjacent buildings;

(ii) Approximating the width and established setback pattern of nearby heritage buildings;

(iii) Respecting the yards, gardens, trees and landscaped grounds associated with the heritage properties and districts which contribute to their integrity, identity, and setting;

(iv) Maintaining, enhancing or creating views and vistas of heritage resources; and

(v) Minimizing the impact of shadowing on adjacent heritage properties, particularly on landscaped open spaces and outdoor amenity areas.

77As for the issues listed above, it was Mr. Szymczak’s opinion that the proposal needed a BHIA to be completed as a part of the application process as per s. 10.2.15.1 of the OP. The initial and revised BHIA as submitted by Mr. Currie satisfied City planning staff as to possible heritage issues.

78It was Mr. Szymczak’s opinion that proposal has demonstrated compatibility with the surrounding neighbourhood when in consideration of Issue 2(i).

79Concerning Issue 2(ii), it was Mr. Szymczak’s opinion that the proposal adheres to Zoning By-law 8699, as there are not any parking spaces located at the front of the property. Vehicular access to the Kildare Street is via an existing alleyway. The proposal has regard to the width and established setback pattern of the neighbourhood and the proposal does not require any mitigation measures in order for the development to occur.

80As for Issue 2(iii), Mr. Szymczak opined that there are no heritage resources directly adjacent or on abutting the SL. The proposal will allow for appropriate setbacks for landscaping and buffering. The open space yards will be consistent with the Walkerville Heritage Area. Enhanced landscape features will be considered throughout the site plan review process, which is not a part of the proposal before the Tribunal in this matter. Overall, Mr. Szymczak opined that the proposal has regard for the yards, gardens, trees and landscaped grounds in the Walkerville Heritage Area and will not harm the integrity of these resources.

81Concerning Issue 2(iv), it was Mr. Szymczak’s opinion that the proposal will not have any impact on heritage resources in the Walkerville Heritage Area. Parking for the proposal is located away from any heritage views, vistas or resources. Mr. Szymczak opined that the proposal conforms to this section of the OP.

82It was Mr. Szymczak’s opinion that, concerning Issue 2(v), he relies on and accepts the evidence of Mr. Berrill, which demonstrates that there are not any significant impacts to the surrounding properties pertaining to shadow impacts. As such, the proposal meets the requirements of this specific section of the OP.

3. Has a Built Heritage Impact Study been submitted to the satisfaction of the City Planner, as required by section 9.3.7.1.(i) of the City of Windsor Official Plan?

83It was Mr. Szymczak’s opinion that the BHIS, and the revised BHIS, which answered additional concerns from Planning Staff, were submitted to the satisfaction of Planning Staff. Mr. Szymczak agrees with Mr. Currie’s opinions and recommendations of the BHIS and the revised BHIS.

4. Is the prior Built Heritage Impact Study dated October 23, 2015 done by the City of Windsor Staff Heritage Planner relevant to the determination of whether the ZBA should be approved?

84Mr. Szymczak gave the Tribunal further background and history of the Calhoun Report. Mr. Szymczak confirmed that the Calhoun Report was prepared for the intent of demolishing the Church and adjoining hall under the Ontario Heritage Act. Once the demolition was completed, the property was rezoned from ID 1.1 to RD 1.1. After the completion of this rezoning, this new zoning is what is used to compare any future zoning application against said property. The Calhoun Report is not a planning report, and, in the opinion of Mr. Szymczak, not relevant nor necessary to the application before the City.

5. Will the proposed development be compatible with the surrounding neighbourhood with respect to height, massing and setbacks?

85It was Mr. Szymczak’s opinion that this issue was explain in the previously stated opinions in Issues 1 and 2. Mr. Szymczak is still of the opinion that the proposal is compatible with the surrounding neighbourhood in the context of height, massing, and setbacks. Mr. Szymczak stood by the opinions in his Planning Report and that the proposal is compatible.

6. Is the proposed parking for the development sufficient?

86It was Mr. Szymczak’s opinion that the provision required for the proposal is a minimum of 1.25 parking spaces per unit in a dwelling containing a minimum of 5 dwelling units. For the 23 units proposed, 28 parking spaces are the minimum required. The development is proposing 30 spaces, more than the minimum requirement, and that the parking space types that are required also meet or exceed the minimum requirements of the Zoning By-law. The utilization of the alley to access Kildare Road ensures that no other driveway entrances are needed to comply with the Zoning By-law. As such, it was Mr. Szymczak’s opinion that the proposal has sufficient parking for the development.

87It was Mr. Szymczak’s overall opinion that the Proposal before the Tribunal is compatible with the existing and permitted lands. It was his opinion that the ZBA is consistent with the PPS, conforms to the general intent and purpose of the City’s OP and represents good planning.

ANALYSIS AND FINDINGS

88In forming a decision on this matter, the Tribunal must analyze the evidence presented before it, the oral testimony of the witnesses and must have regard to the decision and materials presented before Council when their decision was made on the Application.

89The Tribunal has given regard to the Appellant’s evidence and has taken these into substantial consideration when completing its analysis and findings.

90With regards to the issue the Appellants have with the City’s Zoning By-law process, and particularly, that the Appellants had not receive ample opportunity to present its concerns, the Tribunal finds that the Appellants did have opportunities throughout the City’s process. The Tribunal’s hearing of this matter has given the Appellants the opportunity to bring further qualitative and quantitative evidence to prove their case. The Tribunal found that the evidence provided did not persuade the Tribunal concerning the Appellant’s issues with the Proposal.

91The Tribunal finds that, based on the totality of the evidence, the Appellant has not presented the Tribunal with any land planning evidence that can be viewed as contrary to the opinions of the witnesses provided by the Applicant and the City.

92It is the Tribunal’s opinion that the City and Planning Staff have followed the correct processes and procedures for this application. All the necessary studies and reports were presented to Planning Staff before a Planning Report was completed and presented to Council.

93As for the issue concerning compatibility, the Tribunal agrees with the opinion of the witnesses provided by the Applicant and the City and finds that the Proposal comprises a compatible form and design. The proposal as presented to the Tribunal will provide for a transition from a commercial arterial road to a residential neighbourhood and will provide for an alternate form of housing that the City stipulates is needed in the area. The Appellants may not agree that the proposal is compatible; however, the Appellants did not provide any land planning evidence to refute the position of the Applicant and the City.

94The Tribunal notes that, throughout the process of this matter, including the previous Motions, the Tribunal has offered every opportunity for the Appellant to raise legitimate land use planning concerns to prove their case. The Appellant was not able to retain a Land Use Planner for their case. The Tribunal ruled in the previous Motion of Discovery on what it deemed as applicable materials that could be used as a part of the Appellant’s case. The Appellant had access to these applicable materials such as the raw shadow data from the Applicant, to provide their own evidence, such as a shadow study. The Appellants did not submit any such study as apart of their evidence. The Appellant’s case was mostly based on will say evidence of the appellants and questioning of the professional witnesses that were presented by the Applicant and the City. Granted, the Appellant’s architectural witness did provide drawings to show, in his determination, what the impacts of the Proposal could be, including shadows; however, this evidence was not enough to demonstrate nor to prove the Appellant’s case.

95The Tribunal notes that, throughout this process, the Appellant has hinted at what it deems as “cloak and dagger” tactics by the City and the Applicant to force through this proposal. The Tribunal has not found evidence of this. The Appellant during this Hearing process once again argued, as previously done in the Motion of Discovery, that emails between City staff and the Applicant should be submitted as evidence to prove the bias of City Staff concerning this proposal. The Tribunal disagrees. The Tribunal is the “master of its own house” as the Tribunal makes its decisions on the basis of good land use planning and the evidence thereof. It is the Tribunal’s opinion that if there were issues of bias or inappropriate land use planning, the Appellant should have been able to prove it in the reports that were presented to Council when it made its decision, and in the evidence presented before the Tribunal.

96The Tribunal finds that, due to the totality of the evidence provided, the Proposal is a matter of Provincial interest as per s. 2 of the Planning Act. The proposal is consistent with the PPS 2020, conforms with general intent and purpose of the City of Windsor OP and conforms with the City of Windsor Zoning By-law 8600.

97The Tribunal finds that the Appeal in this matter should be dismissed.

ORDER

98THE TRIBUNAL ORDERS that the Appeal against Zoning By-law 8600 of the City of Windsor is dismissed.

“S. deBoer”

S. deBOER

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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.