Antonio Buttice et al v. City of Windsor, 2023 CanLII 76841

Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE:

August 17, 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:

Reference Number:

Property Address:

Municipality/UT:

To permit a 4 Storey multiple dwelling

BL 67-2022

1913, 1925 & 1949 Devonshire Court

City of Windsor

OLT Lead Case No.:

OLT-22-003819

OLT Case No.:

OLT Case Name

OLT-22-003819

Buttice v. Windsor (City)

Heard:

July 25, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

2811035 Ontario Inc.

Analee Baroudi

City of Windsor

Wira Vendrasco

Antonio Buttice

Rod and Paula Rankin

Roger and Jen Bastiaan

Dr. Norman and Beverly Marshall

Cherie and Brian Laughton

Charlotte Colautti

Patricia McConville

Raymond Colautti

Raymond Colautti

Raymond Colautti

Raymond Colautti

Raymond Colautti

Raymond Colautti

Raymond Colautti

MEMORANDUM OF ORAL DECISION DELIVERED ON JULY 25, 2023, BY S. deBOER AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision results for the continuance of the first Case Management Conference (“CMC”) conducted in respect to the Appeal from Antonio Buttice et al. pursuant to s. 34 (19) of the Planning Act against the City of Windsor’s (the “City”) decision to approve the Zoning By-law Amendment (the “ZBA”) application to the City of Windsor Zoning By-law 8600.

2The Tribunal marked the Affidavit of Service of the Notice of the CMC by Anna Ciacelli sworn on September 8, 2022 as Exhibit No. 1 to the Hearing.

3The nature of the appeal is that the proposed amendments to Zoning By-Law 8600 are not consistent with the Provincial Policy Statement, 2020, and do not conform to the policy direction of the City of Windsor Official Plan, in general, and the Heritage Conservation policies specifically.

BACKGROUND

4The municipal addresses of the Subject Properties are 1913, 1925 and 1949 Devonshire Court, Windsor.

5The 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 over 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.

6The Subject Properties are on the location of a former Heritage Register property – the former St. George’s Church. The church was demolished in 2016 under the Approval of the City of Windsor Council. The Subject Properties are located within the Walkerville Heritage Area in the City’s Official Plan.

REQUESTS FOR STATUS

7At this CMC, there were no further requests for Party Status nor Participant Status.

OPPORTUNITIES FOR RESOLUTION

8The Parties agreed that a resolution to this matter cannot be reached and that a hearing of the merits is being requested by the Parties.

ISSUES LIST AND PROCEDURAL ORDER

9Prior to the commencement of the CMC, the Tribunal had received a proposed Procedural Order (“PO”) and received separate Issue Lists (“IL”) from the Parties. After discussion between the Parties and the Tribunal, the Tribunal ruled that the IL as presented by the Applicant and the City are the appropriate issues to be argued during the hearing of the merits.

SCHEDULING OF A HEARING

10The Parties agreed that the amount of time needed to hear the issues would be 3 to 4 days. As such, the Tribunal secured hearing dates of Tuesday October 17 to Friday October 20, 2023, at 10 a.m. by video for a hearing of the merits.

11Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections.

GoTo Meeting: https://global.gotomeeting.com/join/692665589

Access code: 692-665-589

14Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

15Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line.: (Toll Free): 1-888-299-1889 or +1 (647) 497-9373. The access code is as indicated above

16Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Co-Ordinator having carriage of this case.

ORDER

17THE TRIBUNAL ORDERS that a hearing of the merits will commence on Tuesday, October 17, 2023, at 10 a.m. for a period of 4 days ending Friday, October 20, 2023.

18The attached Procedural Order will govern the hearing of the merits.

“s. deBoer”

s. deboer

MEMBER

Ontario Land Tribunal

Website: www.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.

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(s): Antonio Buttice et al

Applicant: 2811035 Ontario Inc.

Subject: By-law No. 8600

Property Address: 1913, 1925, and 1949 Devonshire Court

Municipality: City of Windsor

OLT Case No.: OLT-22-003819

OLT File No.: OLT-22-003819

OLT Case Name: Buttice v. Windsor (City)

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will commence on Tuesday October 17, 2023 at 10:00 am for a period of 4 days ending Friday, October 20, 2023.

3. The parties’ initial estimation for the length of the hearing is four (4) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before August 11, 2023 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before September 1, 2023 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT Case Co-Ordinator on or before September 8, 2023.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before September 15, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT Case Co-Ordinator and in accordance with paragraph 22 below.

14. On or before September 15, 2023, a participant shall provide copies of their written participant statement to all parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before September 12, 2023 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before September 29, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT Case Co-Ordinator a written response to any written evidence on or before September 22, 2023 and in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT Case Co-Ordinator on or before October 6, 2023. The Parties agree that the Joint Document Book will be marked as an Exhibit at the hearing, will include the following two documents, and that the Appellant is not required to call the authors of these reports as witnesses in order to authenticate the documents:

a. Heritage Impact Study dated October 23, 2015 prepared by the City of Windsor staff Heritage Planner Johne Calhoun.

b. Report S64/2022 dated May 10, 2022 to Council for June 6, 2022 prepared by Laura Strahl MCIP, RPP, together with Appendix A being a Report dated January 30,2022 by the Altus Group; Appendix B thereto, being a Report dated April 20, 2022 by The Planning Partnership, Municipal Planning Consultants entitled "Multi-Residential Interim Control Bylaw Study Background Report; and Appendix C thereto being a report dated April, 2022 entitled City of Windsor Intensification Guidelines" by the Planning Partnership.

19. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

20. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before October 6, 2023 with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

23. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

24. Attachment 4 is a Table of Deadlines summarizing the dates in this Procedural Order.

So orders the Tribunal.

Attachment 1

Parties and Participants

Parties

1. Antonio Buttice (Appellant)

2. Rod and Paula Rankin (Appellant)

3. Roger and Jen Bastiaan (Appellant)

4. Dr. Norman and Beverly Marshall (Appellant)

5. Cherie and Brian Laughton (Appellant)

6. Charlotte Colautti (Appellant)

7. 2811035 Ontario Inc. (Applicant)

8. The Corporation of the City of Windsor

Attachment 2

Issues List

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 done by the City of Windsor Staff Heritage Planner relevant to the determination of whether the ZBA should be approved?

Planning Issues

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

2. Is the proposed parking for the development sufficient?

Attachment 3

Order of Evidence

1. Antonio Buttice (Appellant)

2. 2811035 Ontario Inc. (Applicant)

3. The Corporation of the City of Windsor

Attachment 4

Table of Deadlines

Action

Deadline

Exchange and file Witness Lists and Expert Witness CVs

August 11, 2023

Meeting of Experts

September 1, 2023

File Agreed Statement of Facts

September 8, 2023

Advise Tribunal if all four days of hearing time is still required

September 12, 2023

Exchange and file Witness Statements and Participant Statements

September 15, 2023

Exchange and file Reply Statements

September 22, 2023

Exchange and file Visual Evidence

September 29, 2023

File Joint Document Brief and Hearing Plan

October 6, 2023