Court File No.

CV-10-14295

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HILARY PAYNE
DAN BEBBINGTON

Applicants,

- and -

THE CORPORATION OF THE CITY OF WINDSOR

Respondent.

AFFIDAVIT OF HILARY PAYNE

On Application to Quash

I, Hilary Payne, of the City of Windsor, in the County of Essex and Province of Ontario, make
oath and say as follows:

1. I am one of the applicants herein and as such have knowledge of the matters hereinafter
deposed to. I am also the owner of three rental properties in the Sandwich area of the City of
Windsor being located at 375 Indian Road, 471 Rosedale Avenue and 3111 Donnelly, which are
affected by the matters deposed to below in this my affidavit.

2. I am presently employed as a real estate agent. In my previous career from 1976 to 1994,
I was the Chief Administrative Officer of the Corporation of the City of Windsor.

3. To the extent that I do not have personal knowledge of some of the matters hereinafter
deposed to, I rely on the contents of publicly available documents, transcripts, minutes of
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Council and Heritage Committee meetings thereto, and statements made publicly by various
identified public officials. To the extent that I rely on information provided to me, I will identify
the source of that information. To the extent that I rely on information contained in the written
or recorded minutes and documents, I will identify the records as the source of my information.
To the extent I rely on the information contained in the written or recorded or publicly available
materials which I shall identify, I believe that information to be true.

Overview

4. In October, 2006, Windsor City Council commissioned, pursuant to bylaw, a Community

Improvement Study for the Old Sandwich Town area.

Now shown to me and marked as Exhibit 1 to this my affidavit is a true copy of By-Law
27-2009 commissioning that study.

5. In June of 2007, the Sandwich Heritage Conservation District Study was completed and
submitted to Council.

Now shown to me and marked as Exhibit 2 to this my affidavit, is a true copy of that
study, as obtained from the City of Windsor publicly available website.

6. In January or February, 2007, City Council passed Interim Control By-law 19-2007 and
Demolition Control By-law 20-2007. The stated purposes of these by-laws were to freeze all
development, redevelopment and demolitions concerning properties in the Old Sandwich Town
area pending completion of a Community Planning Study for that district.

Now shown to me and marked as Exhibit 3 to this my affidavit is a true copy of Interim
Control By-law 19-2007.

Now shown to me and marked as Exhibit 4 to this my affidavit is a true copy of

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Demolition Control By-law 20-2007. On February 25, 2008, Interim Control By-law 19-2007
and Demolition Control By-law 20-2007 were extended for another year.

Now shown to me and marked as Exhibit 5 to this my affidavit is a true copy of By-law
Nos. 67-2007, 18-2008 and 35-2008 extending the Interim Control By-Law.

8. A Community Improvement Plan for Old Sandwich Town was adopted by City Council
in November of 2008.

9. In January of 2009, Windsor City Council adopted several other by-laws as follows:

i) By-law 22-2009 which designated 261 properties in the Sandwich Old Town Area
as a Heritage Conservation District;

Now shown to me and marked as Exhibit 6 to this my affidavit is a true copy of that By-
Law;

ii) By-law 23-2009, which adopted Official Plan Amendment 68 to implement the
Sandwich Heritage Conservation Districts Study;

Now shown to me and marked as Exhibit 7 to this my affidavit is a true copy of that By-
Law;

iii) By-law 24-2009 which added a supplemental section to the City of Windsor
Zoning By-law to establish regulations for the Commercial and Residential Overlay
zones situate in the Sandwich Heritage Conservation District;

Now shown to me and marked as Exhibit 8 to this my affidavit is a true copy of that By-
Law;
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iv) By-law 27-2009 which adopted the Community Improvement Plan for the Old
Sandwich Town Community Improvement Project Area;

Now shown to me and previously marked as Exhibit 1 to this my affidavit is a true copy
of that By-Law;

v) By-law 28-2009 which adopted the Old Sandwich Town Community

Improvement Plan Supplemental Development And Urban Design Guidelines;

Now shown to me and marked as Exhibit 9 to this my affidavit is a true copy of that By-
Law;

vi) By-law 29-2009 which adopted Official Plan Amendment to implement the Old
Sandwich Town Community Improvement Plan dated November 2008;

Now shown to me and marked as Exhibit 10 to this my affidavit is a true copy of that
By-Law;

vii) By-law 30-2009, being a zoning bylaw amendment establishing regulations

regarding residential areas in certain areas of the Old Sandwich Town Community
Improvement Plan Area.

Now shown to me and marked as Exhibit 11 to this my affidavit is a true copy of that
By-Law;

10. I, and many other property owners were completely unaware of the studies and hearings
before the Windsor Heritage Committee, the Planning Advisory Committee, and City Council
until after these by-laws were passed. It is my belief that I and other affected property owners in
the Sandwich area were not given proper written notice of these studies and hearings before the
by-laws were passed.
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11. The effect of several of these by-laws, particularly By-law 20-2007 subjected properties
in the Sandwich area of the City of Windsor as being subject to demolition control.

12. The owners of the Ambassador Bridge, the Canadian Transit Corporation (“CTC) advised
City Council as far back as 1992 of its intentions to construct a second span to the Ambassador
Bridge immediately adjacent to the existing bridge. The Ambassador Bridge second span, also
referred to as the replacement span, will be located immediately to the west and parallel to the
existing Ambassador Bridge suspension structure and will connect directly to the existing
customs plazas in both the City of Windsor and the City of Detroit. The CTC has since made
numerous requests to demolish derelict houses on properties acquired by it over many years on
Indian Road. Other requests by the CTC to demolish other houses acquired by it along on
Edison Street were also made.

13. Essentially, multiple requests by CTC to Windsor City Council to demolish houses
owned by CTC have been denied by City Council. However, requests to demolish other houses
subject to demolition control in the City and even in the area, but owned by other property
owners, are frequently granted.

14. The CTC has appealed all of the bylaws referred to above designating the subject
properties as either part of the CIP or Heritage District and imposing demolition control and
redevelopment control on the subject properties. Those appeals are pending before the Ontario
Municipal Board.

15. A standoff has therefore materialized between the CTC and the City Windsor. Over 100
homes in the Indian Road and Edison Road area remain boarded up and vacant. These homes
are having a very deleterious effect on other properties, constitute an eyesore and a public
nuisance. They negatively impact property values. City of Windsor officials (ie one or more
City councilors) have taken the position that requests for demolition will not be favourably
entertained unless or until the CTC provides a land-use plan acceptable to the City providing for
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the use of the CTC’s lands in perpetuity. For its part, the CTC, having been prevented from
proceeding with the demolition of the structures, does not wish to restore the subject homes to
the residential housing stock and it is uneconomical or impossible to repair or renovate them.
The houses remain boarded up.

16. Surrounding property owners who are severely impacted by the boarded up houses are
caught in the middle of this dispute. An unincorporated association of property owners of whom
I am a founding member, BUHDAG (Boarded Up Houses Demolition Action Group), consisting
of property owners in the Sandwich Town area, on three occasions in 2009, appeared before City
Council as delegations, but Council refused on each occasion to hear us. We affected property
owners, whose lives are affected by the continuing existence of these boarded up houses, and the
public nuisance that they are creating, have a legitimate interest in the resolution of the
demolition permit issue. Consequently, affected residents such as I would claim standing to bring
legal proceedings against the City to obtain relief.

17. On this Application, the Applicants seek an Order, pursuant to s. 273 of the Municipal
Act quashing the aforesaid by-laws.

18. The issues on this application turn on whether the said by-laws, which have created and
perpetrated the intolerable position, were:
a) passed in bad faith, arbitrarily and capriciously by City Council and
without the degree of fairness, openness and impartiality required and expected of
a municipal government;
b) illegal, as one or more of the by-laws go beyond the powers afforded to a
municipal council under the Heritage Act, The Planning Act, the Building Code
Act and the Municipal Act;
c) Failed to afford the affected Property Owners in Sandwich Town area with
reasonable notice prior to the passage of the by-laws as required by statute or by
the law.
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Background to the Passage of the By-Laws

19. In order to put the present dispute in context, it is necessary to review the history of plans
by the CTC to build a replacement span for the existing Ambassador Bridge.

20. According to information obtained from the Ambassador Bridge website, the
Ambassador Bridge was originally built in the late 1920’s. At the time, it was the longest
international suspension bridge in the world. It is also presently one of the only two international
links between Canada and the United States remaining in private ownership. The Canadian side
of the bridge is owned, I believe, by the CTC. The bridge is aging, and requires a great deal of
maintenance to remain in operation. Over 26% of Canada’s trade with the United States passes
over the Ambassador Bridge.

21. On or around 1992, CTC publicly announced plans to build a replacement span
immediately adjacent to the existing bridge.

DRIC, DRTP and the Schwartz Report

22. The international bridge crossing has come under close scrutiny by Federal, Provincial
and Municipal governments on both sides of the border and particularly Canada since the
terrorist events in New York in 2001. Changes in trans boarder travel led, in the period of time
post September 11, 2001, to lengthy traffic and truck lineups and greatly increased border
security on the U.S. side, thereby creating significant problems for local traffic. The Provincial
and Federal government, in concert with the State of Michigan and the U.S. government, created
initiatives to study and design an alternative boarder crossing. In Canada it is well known that
this became known as the Detroit River International Crossing Initiative.

22. In or around 2004, the City of Windsor commissioned its own study by Sam Schwartz
Engineering PLLC who delivered a report through a public presentation to City Council in
January 2005.
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Now shown to me and marked as Exhibit 12 to this my affidavit is a true copy of the
Summary of that report which was obtained from the City of Windsor’s website.

23. The Schwartz report studied a proposal by the Detroit River Tunnel Partnership (DRTP)
to renovate an existing rail tunnel under the Detroit River to make it serviceable exclusively to
truck traffic. The report also considered a proposal to build another bridge to the South-West of
the existing Ambassador Bridge and a proposal put forward by the CTC to replace the existing
bridge with an adjacent structure.

24. The twinning of the Ambassador Bridge proposal was studied by Schwartz in some
detail, according to his report. At page 9 of the summary report, he notes that the proposal
consisted of a second bridge, four lanes wide, which would be built next to the Ambassador
Bridge providing for 4 lanes in each direction. The proposal also involved a CTC parkway route
from highway 401 to the bridge. A full controlled limited access highway, 3 lanes in each
direction, would be built from highway 401 to the E.C. Row Expressway via Talbot Road and
Huron Church Road. Figure 10 at page 10 of the report shows the Ambassador Bridge access
route as provided by the CTC to Schwartz. Figure 11 in the Schwartz report shows the
Ambassador Bridge Access from E.C. Row Expressway again as provided by the CTC to
Schwarz. Figure 12 of the Schwartz report shows the Ambassador Bridge access route along the
Essex Terminal Railway through Sandwich.

26. At Page 16 of the Schwartz Report, Schwartz evaluates the CTC proposal as follows:
“ The CTC proposal provides adequate capacity and works acceptable from a traffic
point of view. Traffic volumes on the bridge are expected to remain below capacity
beyond 2030 with the proposed fully controlled parkway. The proposed parkway does,
however, channel all cross border traffic to the E. C. Row Expressway West of Huron
Church Road.”(Emphasis added)

And later:
“ The Major drawbacks of the CTC proposal are the impacts on several communities of
the proposed assess road…Approximately 1383 residences and apartment or public
housing and apartment complexes lie in a 200 meter corridor adjacent to the proposed
route. We conservatively estimate these 55 apartment buildings represent an additional
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400 households. Additionally, the Forrester High School likes within the 200 meter
corridor adjacent to the proposed Parkway. Air and noise quality would worsen for
these impacted properties.

Construction of the second bridge span, and a proposed access route would pose
significant and lengthy traffic disruptions during the reconstruction of Talbot and Huron
Church Road. The Windsor touchdown location for the second span would heavily
impact adjacent residential areas and the University of Windsor during a lengthy
construction phase…”

27. At page 20 Schwartz notes that:

“we conclude that the combination of River-crossing flaws and approach road flaws are
fatal to the DRTP and the Twinning of the Ambassador Bridge…”

28. Schwartz recommended that continued improvements occur on the Ambassador Bridge.
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The Green Corridor Proposal Presented to City Council

29. In 2007, on a public website entitled www.greencorridor.ca The Ambassador Bridge

Company funded and participated in an initiative called the "Green Corridor".

Now shown to me and marked as Exhibit 13 to this my affidavit, is a true copy of that
website containing a Green Space Proposal.

30. According to the said website, which was in part sponsored by the Ambassador Bridge,
the "Green Corridor" initiative is described as a series of proposals "for generating a green
redevelopment of the international bridge corridor linking Canada to the United States. As a
gateway to the city of Windsor, the corridor presents opportunities to involve local communities
in transforming their environment. The initiative harnesses the capacity of interdisciplinary and
multi-institutional collaboration..."

31. The said website further notes that "in the spring of 2007 the Ambassador Bridge
Company donated funds to the University of Windsor to allow the Green court or to
conceptualize opportunities as a vision study for the Green development of the Ambassador
Bridge properties adjacent to the current customs moved expansion. Our exploration and
research was pervasive resulting in a 1/200 scale model illustrating the vision with associated
display panels illustrating a template of green space opportunities shadowing the Ambassador
Bridge."

32. The green space study area is shown on a map as including the existing bridge Plaza,
customs area, storm water remediation areas, a parking lot, and a shaded area which includes
some of the existing bridge facilities.

33. Consequently, by the spring of 2007, the plans of the Ambassador Bridge to extend its
existing facilities, and to construct a replacement span for the existing bridge were very well
known in the city of Windsor, and particularly to Windsor City Council.
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34. I have become aware that over the course of a decade the CTC had acquired houses on
the east side of Indian Road, from University Avenue West to Mill Street and on Edison and
Peter Streets. As I understand it, CTC’s plan is to demolish these hoses, re-grade the lots, and
seed and plant them. As I understand it, these lots were to form a buffer between the replacement
span and the rest of the homes on the west side of Indian Road. This information is clear from a
review of the Ambassador Bridge website: www.ambassadorbridge.com. That website describes
the proposals for the second span, and shows artistic renderings and a video describing the plans
to create a second span to replace the aging existing bridge.

Now shown to me and marked as Exhibit 14 to this my affidavit, is a true copy of the
Ambassador Bridge website as saved onto a data stick.

35. Since the time of the presentation of the Schwartz report, referred to above, Windsor City
Council has been opposed to the CTC’s plans.

Council Passes Interim Control By-Law

36. As I have stated above, on January 29, 2007, City Council passed Interim Control Bylaw
19-2007, a Demolition Control By Law to ensure that actions were not taken within the Olde
Sandwich Towne Community Planning Study Area, such as demolition of buildings, "which
could have the effect of destabilizing its inherent features, the community, and the functions and
characteristics of existing buildings." I have also stated above how, on January 20, 2007, City
Council had also passed Interim Control by-law to prohibit certain uses of land and buildings in
the Sandwich Towne area.

City Council Refuses to Exempt CTC Houses from Demolition Control

37. I am advised by my solicitor and do verily believe that the passage of the Demolition
Control Bylaw required that any exemptions or applications to demolish a building in the area
subject to demolition control be made to the City Council. I am aware from a staff report made
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to City Council, which shall be referred to below, that CTC made an application with respect to
686, 718, 738, 750, 778, and 784 Indian Road for exemption. Those applications came on for
Council's decision on May 28, 2007.

Now shown to me and marked as Exhibit 15 to this my affidavit is a true copy of the
staff report dated March 27, 2007 concerning the May 20, 2007 Council meeting.

38. Attached as an appendix is to the aforesaid staff report, is a letter dated February 20, 2007
from Danbury Property Management to the CTC. That letter states as follows:
"We have been trying to lease the houses above despite our efforts to lease these houses
they are now vacant

And in some cases have been vacant for more than 6 months.

None of the houses have had substantial work done to them over the life of their existence
and as a result are need of major repairs such as new roofs, flooring, major kitchen and
bathroom work, window and sill replacement, all repairs, furnace replacement, leakage
in the basement and sewage issues. The leakage in the basement is causing mold issues
and further damage to the structure. As well, each House requires plaster repairs and
extensive painting throughout. The outside surface and structure of each house is also
subject to numerous repairs, service painting and replanting of brick work.

There are several homes with broken windows and the interiors of some of the houses
had been vandalized. Copper and other materials have been removed by vandals. There
are numerous windows and rotting windowsills and there is evidence of garments within
these homes.

In our opinion it is not a safe condition to allow these houses to stand empty due to their
poor condition. The cost of repairing the houses would be substantial and not
recoverable through rental income or resale. The houses are in a state of major
disrepair. They are negative influence on the neighborhood and in our opinion should be
demolished as soon as possible."

39. Also attached as an appendix to the said staff support is a letter dated April 23, 2007 from
the Ambassador Bridge to the attention of the then CAO of the City of Windsor. The letter
provides information regarding the application for demolition permits for these six houses on
Indian Road as follows:
"as you are aware, in August of 2005, Windsor City Council approved a building permit and site
plan control agreement for the current expansion of the Ambassador Bridge Plaza to allow for
the construction of 6 more custom booths designed solely for trucks. Among other things, that site
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plan control agreement provides that the Ambassador or Bridge will provide landscaping along
Huron Church Road, Wyandotte Street And Mill Street as part of the completion of this project.
The removal of these houses is necessary for the overall landscaping plan, which will include a
buffer zone and a proper security perimeter; as such, they will be no buildings erected on the site
of these homes. Further, our contractor has now informed us that several of these houses need to
be removed to allow the most expedient completion of this work.

We can advise that the 6 houses are now vacant and in disrepair.

For your information, we have partnered with the Green Corridor at the University of Windsor to
assist in our landscaping efforts to ensure that we create an environment that enhances the
property that surrounds the Ambassador Bridge and improves the environment for our neighbors
in the surrounding community as well as those who enter Windsor as the Gateway to Canada."

40. Also attached as an appendix to the staff report to counsel is a memorandum from Avalon
Consulting Professionals of Ontario, LLC dated March 8, 2008. That report notes as follows:
"The following information is a summary of the research conducted on the 6 vacant
houses that are scheduled for demolition. All of these houses are located on the east side
of Indian Road between Mill Street and Wyandotte street west. The demolition of at least
6 houses on the east side of Indian Road has already occurred. The city Windsor issued
permits for the demolition of the 6 houses without expressing concern about any possible
historical or architectural significance.

The Ontario Ministry of Culture identifies real property cultural heritage resources as:
archaeological sites; buildings and structural remains of historical,
architectural and contextual value; districts or landscapes of historic
and scenic value in rural, village and urban contexts; places which hold
significance because of sacred value or along traditional use.

We carefully analyzed the characteristics of each of these houses and concluded that no
preservation was warranted nor are they eligible for designation as heritage properties.
The Ontario Ministry of Culture database showed no designated heritage properties on
Indian Road in the city of Windsor.

Avalon has reviewed orthophotography of the area from present date back to the late
1960s. This photography indicates that the area was fully developed by 1970. Oblique
angles aerial photography taken during the construction of the Ambassador Bridge in the
late 1920s indicates that there were only 3 houses on the east side of Indian Road.

The architectural styles of the houses indicate that the majority are between 50 and 75
years of age. Generally, the houses are one to two story single-family homes with no
architectural significance whatsoever. All of the house is scheduled for demolition are
comparable to those previously removed on the east side of Indian Road. None of the
houses to be demolished or associated with a historic event or in a historic properties
designation.
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The house at 686 Indian Rd... is in a state of disrepair with some rot occurring on wood
door and window framing and the brick work needing substantial replanting. There are
no significant architectural features of the unique character or representation of a style
of architecture warranting heritage properties designation.

The houses located at 718..., 738..., 750..., and 778... are of a very common architectural
style within the neighborhood. The houses at 718, 738, and 778 Indian Rd. to be
demolished are architecturally similar to the former houses located at 78, 734, 638, and
630 Indian Rd. The City of Windsor previously issued demolition permits for these
houses (678, 734, 638, and 630 Indian Road) without raising any issues relating to their
historical or architectural significance. None of these houses or any of the houses
already demolished exhibit significant architectural features of a unique character or
represent a style of architecture warranting heritage properties designation.

The house at 734 Indian Rd... has some features such as exterior wood finishing and
brick work that are in need of repair. This house does not exhibit significant
architectural features of the unique character or representation of a style of architecture
warranting heritage properties designation.

The houses subject to the demolition permits do not have any significant architectural
features, nor do they have any unique characteristics, as a result the houses do not
represent a style of architecture that would warrant any heritage designation."

41. In the Exhibit 18 staff report, to the Mayor and members of City Council, the following
facts are stated:
"For these particular houses, there has been no redevelopment plan proposed. No
building permit for new construction is been applied for. Section 5 of the demolition
control by-law 20-2007 provides that before a demolition permit is issued in the Olde
Sandwich Towne Community Planning Area, a building permit must be issued to erect a
new building on the site of the residential property sought to be demolished.

An inspection of the homes by the building and development Department found that,
while the houses may be in need of some repair, they do not appear to be structurally
unsound or not repairable.

City Planning staff had previously reported at houses on Indian Road, given their
proximity to the University of Windsor Campus and status as rental housing, play an
important role in providing accommodation for university students.

Administration has reviewed the Site Plan Control Agreement and can confirm that
demolition of these homes on Indian Road is not part of the Site Plan application for the
Plaza, as approved by CR 29/2006, nor is demolition of homes mentioned as part of, or a
requirement for a landscaping plan. The only requirement is for the planting of some
trees in the rear yards of the homes on Indian to buffer them from the Bridge's retaining
wall and structure. The removal of these homes is not required under the terms of the
approved Site Plan Control Agreement.
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Administration has not received an overall landscape plan submitted by the Detroit
International Bridge Co. Administration recommends that the Planning Study for the
Interim Control By-Law evaluate this option, as an integral component of this study is to
examine how the character of the Sandwich Planning Area will be affected."
….

Conclusion:
The adoption of interim control and diligent control by-laws is an important prerequisite
to the completion of a viable Sandwich Community Improvement Plan. These bt-laws
ensure that no actions will be taken that could potentially have a negative effect of the
stabilizing neighborhoods or key components and characteristics of the community. In
this particular case, the demolition of the houses would have a negative impact on the
neighborhood. Therefore it is recommended that the applications to demolish these
houses be denied."(Emphasis added)

The N.K. Becker Report Concerning the Empty Houses

42. I am advised by Dr. N.K. Becker, a professional engineer, that he wrote a report for the
Canadian Transit Company dated June 6, 2007.

Now shown to me and marked as Exhibit 16 to this my affidavit is a true copy of that
report.

43. In his report Dr. Becker indicates that he carried out a detailed inspection of the Indian
Road houses to assess their age, condition and heritage value within the City of Windsor's
proposed Sandwich Heritage Conservation District. Dr. Becker states the following in his report:
"…The Study Area for this Heritage Conservation District is a large, pie-shaped area
bounded by the Detroit River, Huron Church Road and Prince Road, which includes
approximately 2600 properties. As such it extends well beyond the boundaries of the
historic Huron Indian Reserve as well as the original town site of Sandwich which was
occupied by French, British, African and other immigrants who firs settled the shores of
the Detroit River in the 1700's and subsequently cleared the woodlands and built homes,
farms and other buildings further inland.

The Final Draft of the Sandwich Heritage Conservation District Study was recently
completed and has been posted on the City of Windsor website. It recommends a
proposed Heritage Conservation District Boundary that encompasses two distinct areas;
namely a historic commercial-institutional core along Sandwich Street from Detroit
Street to just south of Brock Street, and the majority of the circa 1820's Subdivision in
the Rosedale/Alexander area that includes a collection of 'generally well-maintained,
finely-detailed residential dwellings.'
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I understand that your clients, the Detroit International Bridge Company, purchased all
of the houses on the east side of Indian Road from Wyandotte Street to Mill Street some
time ago. Four of these house (i.e., 678, 734, 638, and 630 Indian Road) were
demolished pursuant to Demolition Permits issued by the City of Windsor Building and
Development Department. …

Concern has been expressed by the City of Windsor Administration that the demolition of
these houses could have a detrimental effect on the City's ability to implement the
recommendations of the Sandwich Heritage Conservation District Study. Administration
staff has also concluded that 'houses on Indian Road play an important role in providing
accommodations for University students' and that 'the demolition of the (subject) houses
would have a negative impact on the neighbourhood'. …

1. All these houses are unoccupied. …

2. None of these houses are in fit condition for re-occupancy. Although all the
doors were equipped with locks and 'No Trespassing' signs have been posted on
each house, they have been forcibly entered, vandalized and pilfered. Much of
the accessible copper piping and the electrical wiring (including some of the
electrical panels) have been stolen. Water, frost and vandals have damaged the
plaster, drywall, hardwood flooring and other finishes. And animals have
entered these houses through broken windows and doors and nested within the
debris. The rank odour of urine and fecal matter in several of the basements is
overpowering.

3. None of these houses merit a historical or a heritage designation based on

established Provincial, National, or International guidelines. The oldest (i.e.
784 Indian Road) was built in or about 1925. The youngest (778 Indian Road)
was built in or about 1970. All of these houses are of an age, type and style
common to the City of Windsor and other areas of North America.

4. The original brick veneer, wood siding, porches, dormers and roofing of the pre-
1950s houses have deteriorated badly and/or been retrofitted with asbestos-
cement, insulbrick, aluminum or vinyl siding; aluminum fascias, soffits, awnings
and windows; etc. to the extent that there original feature have been materially
altered, removed or destroyed. The cracks, displacement and other distress we
observed in the original brick veneer on the two oldest houses indicate that the
concealed brick ties are failing and the brick veneer itself is potentially unstable.
Vibrations or impact loads could cause sections of this brick veneer to fall off
these houses.

5. Construction of the new Customs Booths on the west side of the Ambassador
Bridge near Mill Street is progressing towards the rear yards of these six houses.
The proximity of the construction activities to these houses posses increasing
challenges and safety risks to the construction workers as well as damage risks
to these houses (e.g., the stability of the brick veneer, the masonry foundation
walls and the unreinforced block masonry chimneys).

…. these vacant houses are destabilizing rather than stabilizing features within their
 17

neighbourhood. They also do not enhance the City's proposed designation of others part
of Olde Sandwich Town s a possible Heritage Conservation District.

The conclusion expressed by the City Administration in its 27 March 2007 report to City
Council regarding the demolition of these six house that 'given their proximity to the
University of Windsor Campus and status as rental housing" these houses on Indian
Road 'play an important role in providing accommodation for University students' fails
to recognize the following realities:

1. None of these houses was originally designed or built as a rooming, boarding or

lodging house to accommodate students, but as modest single-family dwellings
Although most have been modified over the past 20 years to accommodate
multiple tenants (e.g., basement finishes, partitions, extra bathrooms, etc.) they
are not compliance with the renovation and retrofit requirements of either the
Ontario Building Code or the Ontario fire Code imposed on such multiple tenant
occupancies … as defined by these Codes.

3. To the best of my knowledge and belief, the City Administration has no authority
under any existing By-Law or Legislation to compel a landlord to convert a
single-family dwelling to a rental property suitable for use and available for
students. To suggest that these six vacant houses which do not comply with the
standards imposed on multiple family, or boarding, rooming and lodging houses
should be retrofitted to provide appropriate code-compliant rental
accommodations for students therefore seems both unreasonable and unrealistic.

4. In my professional opinion, the construction costs required to convert these

existing single-family dwellings to legal, code-compliant duplex rental units, or
multiple-tenant rooming, boarding or lodging houses would be far too
prohibitive to be economically viable. …

5. The proximity of these six vacant houses to the noise and exhaust fumes
generated by the high volumes of daily truck traffic that is the international link
for much of the NAFTA trade between Canada and the United States is an
obvious detriment to their being rented to any tenants. To suggest that the
Detroit International Bridge Company which purchased these houses to provide
a buffer for the neighbouring occupied houses should repair, upcode and rent
these houses to students contradicts the most fundamental principles of good
urban planning. …

As a Professional Engineer who has donated considerable time and effort to support
Heritage Conservation in Windsor and Essex County, I wholeheartedly support the City's
initiative to conserve, preserve and restore historic buildings, neighbourhoods and
districts within Olde Sandwich Towne, for the benefit of future generations. However, in
my opinion any attempt to apply such an important designation to buildings,
neighbourhoods or districts that so obviously do not merit such designation, only serves
to diminish the value of those that do.
 18

The results of my investigations and inspections demonstrate the following:

1. Neither these six vacant houses, nor the neighbouring house merit any heritage
designation based on the well-established Provincial, National or International
Guidelines or Accords that apply to such a designation.

2. Both the proximity of these houses to the increasing noise and exhaust from the
international truck traffic that crosses the Ambassador Bridge, and the noise,
litter and other inconsiderate acts committed by the less responsible student
tenants who have occupied the houses in this neighbourhood, have had a
debilitating effect on this neighbourhood.

3. In my professional opinion, this neighbourhood is in an irreversible decline. Any

motion that the demolition of these six vacant houses will destabilize or hasten
the decline of the neighbouring houses defies common sense and established
principles of good urban planning. The environment in which these houses exist
will not likely improve with time. However, demolishing these six vacant house
and constructing a landscaped area in their place, would not only remove a
neighbourhood liability but provide an opportunity to mitigate the detrimental
impact of truck traffic crossing the Ambassador Bridge through the creation of
an attractive, landscaped buffer for the remaining houses in this neighbourhood.

… in my professional opinion that in their present condition, these six vacant,

deteriorated houses pose a foreseeable risk to any person who ignores or is unable to
read the 'No Trespassing" sign posted on each of these houses. These houses have
obviously been broken into, trespassed and plundered. They have also served as nests
for rodents and other animals whose urine and fecal matter poses a potential health risk
to anyone who might enter these premises, either legally or illegally.

In my opinion, these house should be demolished as soon as possible. However, if their

demolition is delayed for any reason, I recommend that all windows, doors and other
openings be boarded-up completely and securely, all debris within their yards be
removed; and these properties be protected. …"

Ambassador Bridge Enhancement Project

44. On June 11, 2007, Paula Lombardi and Susan Whelan, lawyers representing the
Ambassador Bridge, along with Dan Stamper, President of the Detroit International Bridge
Company and Noel Harding, a representative of the Green Corridor initiative, appeared before
Windsor City Council to provide an overview of the "Ambassador Bridge Enhancement Project".

Now shown to me and marked as Exhibit 17 to this my affidavit is a true copy of Council
 19

Minutes for June 11, 2007.

Now shown to me and marked as Exhibit 18 to this my affidavit is a true copy of a

transcript of a verbatim recording of that meeting as it pertains to the Ambassador Bridge.

45. During the course of the Council Meeting, the Ambassador Bridge and Green Corridor
representatives attempted to give a presentation of the Ambassador Bridge Enhancement Project
and the Green Corridor project, including the project objectives, the actual enhancement project
details, benefits, the corridor history, the Canadian Plaza Project, the U.S. Ambassador Bridge
Gateway Project Finding of No Significant Interest (FONSI), existing conditions, the Windsor
Plaza expansion, partnering opportunities and environmental analysis. The presentation was
limited by City Council to 10 minutes and a request for an extension of time to allow the
presentation to be completed was denied by the Mayor.

Council Refuses CTC Permission to Demolish

46. City Council also deal with CTC's request to demolish certain of the Indian Road houses
as set out above. City Council denied CTC's request to demolish these house. Furthermore,
Council directed the Chief Building Official ("CBO") to prepare a report for consideration by
Council, outlining steps available to secure those subject properties so that there was no further
vandalizing.

Sandwich Heritage District Study Report

47. In June of 2007, the Sandwich Heritage Conservation District Final Report was prepared
for submission to the Windsor Heritage Committee and eventually to City Council.

Previously marked as Exhibit 2 to this my affidavit is a copy of that report which was
taken off the City of Windsor's official website (http://www.citywindsor.ca/002570.asp). The
following excerpts are taken from that lengthy document:
"Sandwich Heritage Conservation District Study, Final Report,
 20

Prepared in association with:

Ecoplans, Stephen J. Mawdsley Architect SJMA and Michael Baker,
June 2007

1.1 INTRODUCTION

… Heritage Conservation Districts are created under Part V of the Ontario Heritage Act
for the purposes of conserving something of heritage value that is common to a whole
district. …conservation district is the collective character of the overall area, as defined
by its historical context architecture, streets, landscape and other physical and visual
features. …

… One of the key recommendations in this study was to undertake a study investigating
the possibility of designating Sandwich as a Heritage Conservation District. …

Approval for undertaking the Sandwich Heritage Conservation District Study was given
by the City of Windsor on September 5, 2006 based on the Terms of Reference that had
been prepared by the City of Windsor Planning Department.
[pg. 1.1]

1.2 WHAT HAPPENS IN A HERITAGE CONSERVATION DISTRICT

As previously mentioned, a Heritage Conservation District focuses on the preservation of

a collective area to help retain the key functional and visual attributes that conveyor
have a connection to the history of the area in which they are located. A Heritage
Conservation District can include buildings, landscapes or both. When an area is
designated as a Heritage Conservation District, it means that its essential elements are
to be protected, but it does not mean that an area is 'frozen' in time or intended to be
restored to some specified historical period or style.

Generally, it is the streetscape that is the focus of a Heritage Conservation District - as a

result, policies and guidelines are put in place to provide direction about what kinds of
alterations, additions or new construction will be considered appropriate for areas
visible from the street. Heritage alteration permits are generally required to major
street-facing alterations and additions, as well as new construction. Minor repairs and
alterations, or additions and renovations to the side or rear of buildings typically do not
require heritage alteration permits, even when in a Heritage Conservation District,
although conservation guidelines may still be provided to assist with maintenance and
repair of certain building elements. The interior of buildings is not affected in any way
in a Heritage Conservation District. …
[pg. 1.2]

1.3 PURPOSE AND OBJECTIVES OF STUDY

… Consistent with the Act, the purpose of the Sandwich Heritage Conservation District
Study is to 'provide an architectural and historical analysis of the Sandwich community
on the west side of Windsor with a view to establishing one or more heritage
 21

conservation district/s.'

The Study is a two-phase process, whereby Phase 1 focuses on background research and
examination to identify an area (or areas) that warrant more in-depth examination as a
potential heritage conservation district(s) based on the City's Official Plan criteria.
Individual properties suitable for Part IV designation or inclusion on the Windsor
Heritage Properties Inventory are also to be identified.

Phase 2 of the study is the preparation of a Heritage Conservation District Plan for the
area(s) identified in Phase 1, to provide policy direction and strategies to conserve and
enhance the character of the Heritage Conservation District.

1.4 LOCATION

… The specific study area, as identified in the Terms of reference by the City of Windsor,
is a pie-shaped area bounded by the Detroit River, Huron Church Road to the east and
Prince Road to the west / south as shown in Figure 2. These initial boundaries include
approximately 2,600 properties, primarily residential, but with some commercial , retail
and office uses on Sandwich Street as well as on Huron Church Road and Felix Avenue.
…
[pg. 1.3]

2.5 CONCLUSION

Continual redevelopment and growth has left little of 19th century Sandwich in evidence.
Buildings constructed before 1900 represent only 5% of the pre-amalgamation building
stock in existence today and very few of those retain all of their original features. Yet
within what was the built up area before 1914 there are handful of well-preserved
dwellings from most of the periods in Sandwich's long development. These structures
should be listed, based on criteria established for historic Sandwich as a whole.

The growth pattern of Sandwich was quite dispersed. The boundaries set by the Huron
Church Reserve encompassed a large territory which was made even larger when the
municipality boundary was established in 1858. Today, surviving structures of different
periods can be found in close proximity. This pattern changed somewhat in the 1920s
when the first instances of suburban growth created large tracts of similar housing in the
course of a single decade.
[pg. 2.6]

2.5.1 The Town Centre

In a two block section of the core area can be found most of the structures that relate to
the founding of Sandwich and of the Western District itself.
[pg. 2.7]

3.1.6.2 Detroit Street to Huron Church Road

The area from Detroit Street to Huron Church Road consist of unique residences, open
 22

space, and wonderful vista of the Ambassador Bridge, a historic structure in itself, in the
background of this area. While there has been a influx of multi-unit residential
complexes in the last 30 years, this area has retained some of the most unique residences
in the Sandwich study area. …

While many of the house along Indian Road function as rental properties, as do a
majority west of College Avenue, these buildings contribute to the unique residential
area of the Sandwich Study area, with those on the south side of Indian Road being more
intact. …

This area deserves further investigation as a part of a Heritage Conservation District.

[pg. 3.18 to 3.19]

3.1.7 Summary of Architectural Inventory

… Although more difficult to reverse, there is a discontinuity of scale in some buildings

due to the abandonment and removal of the second and third floors. As well there
appear to be a number of open undeveloped lots on Sandwich Street. This is an
opportunity to develop policy and guidelines for the development of the lots in the
Heritage Conservation District that will reinforce the existing heritage built form. The
integration of similar building form, scale, architectural detail, and setbacks will assist
in developing and reinforcing the continuity necessary within a Heritage District.

In summary, there are two areas deserving consideration of a Heritage Conservation

District designation from an architectural perspective: the Central Business District and
residential area north of Detroit to the Ambassador Bridge between Sandwich and
Donnelly. These areas contain the broadest selection of architecturally significant built
form with generally greater consistency and integrity and should be considered for
designation as a Heritage Conservation District in part or as a whole due to the
architectural form, architectural features, streetscape, and history of the buildings in
these areas. While there are significant architectural and historical selections adjacent
to this boundary, these properties would be more appropriately considered for
designation on an individual basis under Part IV of the Ontario Heritage Act.
[pg. 3.23]

4.10 VISUAL DETRIMENTS

… Some of the buildings within the study area have been abandoned by owners, in effect
abandoning the entire neighbourhood. Homes that are in a state of disrepair, have been
damages by fire, or are boarded up occur regularly on the fringes of the pre-war area,
often at the interface between industrial and residential land uses. These homes
represent gaps within the streetscape, and detract immensely from the rest of the
streetscape.
[pg. 4.15]

5.2 OFFICIAL PLAN STATUS

5.2.1 Heritage Policies

 23

… At the present time, a section of the Sandwich Study Area, generally corresponding to
the strip of Sandwich Street extending from South Street to Detroit Street is one of four
'Heritage Areas' shown on Schedule G.

It should be noted that areas identified on Schedule G as Heritage Areas are not
necessarily currently designated (only one of the four areas - Prado Place - is currently
designated), nor is the designation of potential Heritage Conservation Districts limited to
those areas that are shown on Schedule G. Policies pertaining to Heritage Areas state
that any new development or infrastructure in those areas should respect, and where
possible, enhance the historical character of the area with respect to compatible height,
massing, scale, setback and architectural style.

The Official Plan also states that recognition of Windsor's heritage resources may occur
by designating groups of buildings and areas as Heritage Conservation Districts under
the Ontario Heritage Act. Heritage Conservation Districts are required by the Official
Plan to meet one of more of the following criteria:

1. The area will be comprised of buildings, structures or part thereof, and sites of
landscapes of architectural and/or historical significance meeting the criteria
established in Policy 9.3.3.2; and

2. The area may also include other buildings, structures, sites or landscapes which
do not individually merit designation, but which constitute infilling among properties of
architectural and/or historical significance and are necessary for the conservation of the
overall character of the area.

Specific criteria defined in Section 9.3.3.2 include the following:

- Property is to be associated with an important person or group of persons or have

played a role in an important historical event;

- Building or structure will have distinguishing architectural characteristics (type, style

or method of construction or be a notable example of work by any early master
builder, designer or significant architect);

- Building or structure will be a rare example of a formerly more common architectural

type or method of construction, or be a rare surviving example of work by an early
master builder, designer or significant architect);

- Association with the past living / working environment of a significant element of

Windsor's population or have been associated with an important aspect of the city's
political, economic, social or technological development;

- Be recognized as a long-standing landmark or is considered to contribute positively to

the cityscape due to aesthetic value.

It is determined that an area meets these criteria, the official plan gives Council the
authority to designate groups of buildings and areas as Heritage Conservation Districts
 24

under Part V of the Ontario Heritage Act. The foregoing criteria from Section 9.3.3.2
are also the criteria if individual designation under Part IV of the Ontario Heritage Act.
At the present time, the Sandwich study area contains 16 designated properties, as well
as a further 25 listed properties (i.e. - properties of interest that have not been
designated). A map illustrating the designated and listed properties in adjacent to
Sandwich is provided in Figure 8.
[pg. 5.1 - 5.3]

5.3.6 Summary

… Greater variability in lot sizes occurs in the older area of Sandwich (i.e. - west of
College Avenue, most likely as a result of a relatively lengthy time period of development
as it spans from the mid 1800s to the 1950s. …
[pg. 5.12)

5.4 OTHER STUDIES AND PLANNING INITIATIVES

5.4.1 Olde Sandwich Towne Community Planning Study (2006)

The Olde Sandwich Town Community Planning Study was undertaken in 2006 by the
City of Windsor Planning Division to develop a plan to 'improve the quality of the
experience of living, visiting and working in Sandwich'. The plan had extensive
involvement from the Olde Sandwich Towne Community Task Force and identified
strategies and actions to help the community realize its vision of Olde Sandwich Towne.
The area of the Community Planning study was smaller than the heritage conservation
district study area, as it did not extend beyond College Avenue, with the exception of
Maryvale College. However, it did extend farther to the south, with Prospect Avenue as
its boundary.

The study included extensive public consultation through task force participation,
community meetings, visioning sessions and workshops. …

Weaknesses
- Boarded up buildings
- Unkempt lots
- Need to build on history
- Poor image

… Ultimately, the Community Planning Study established a vision for the community:
"Olde Sandwich Town is a vibrant waterfront community" and a series of associated
strategies and actions focused on six categories. …

- Investigation of the potential for a heritage Conservation District designation for

Sandwich (the focus of this study);

- Development of urban design guidelines and performance standards for areas outside
of any heritage conservation district;
 25

- Improved streetscape standards on Sandwich Street;

- More stringent property standards enforcement;

- Financial incentives for building renovation / restoration;

- Expansion of the historic murals project;

- Public art, landscaping and signage improvements at gateways;

- Encouraging students to learn more about the history of Sandwich;

- Protection and replanting of street trees, including reintroduction of Mission Pear

Trees; …

5.4.2 Interim and Demolition Control By-Laws (January 2007)

… It essentially permits only the continuation of existing permitted uses, repairs to

buildings to comply with the City's property standards by-law, and work which does not
require a building permit for a period of one year. At the same time, the City enacted a
Demolition Control By-law to prevent the demolition of any whole or part of a
residential building unless a demolition permit is issued by Council. These measures
were taken to ensure stability in the Sandwich community during the course of the
Community Improvement Plan that is being initiated, ad to prevent potential destruction
or loss of Sandwich's attributes prior to the completion of the CIP.

5.4.3 Other Studies and Initiatives

A number of other studies aimed at promoting and strengthening the Sandwich

community, improving the quality of life, and preserving and enhancing the physical
environment of Sandwich have also been undertaken in the past, including:
- Sandwich Community Improvement Plan (1989)
- Heritage and Design Guidelines Study (1986)
- Neighbourhood Improvement Plan (1979)

… recognized that the physical appearance of the core, particularly its heritage assets,
were key elements of economic vitality; and established various strategies and design
guidelines intended to help revitalize the economic and physical fabric of Sandwich. …
evident that some stagnation has occurred in recent years. This gave rise to the current
initiatives including the Community Planning Study (previously outlined), this Heritage
Conservation District Study, and the soon to be initiated Community Improvement Plan.
[pg. 5.12 - 5.14]

5.4.4 City of Windsor Archaeological Master Plan

… Nearly all of the Sandwich study area is identified as an area of "high Potential" (see
map in Appendix F) …
 26

… will be reviewed for their potential to impact archeological resources. If such plans
are considered to have a potential impact on archaeological resources, requirements for
archeological assessment and mitigation are typically incorporated as conditions of
planning approval.
[pg. 5.14]

5.5 DEVELOPMENT ACTIVITY

A general analysis of development activity in the Sandwich Study Area was undertaken to
review the extent of architectural and land use change over the past five years
(approximately) to help identify areas that may be subject to greater threats or
opportunities as a result of proposed or anticipated development or redevelopment.
Data reviewed. …

… Alterations most frequently identified were repairs and replacements to porches, roofs
and windows. It is likely that other alterations were undertaken that did not require
building permits. Additions included new porches, dormers and decks at the front of
houses. A total of fourteen new buildings were constructed since 2000, including one-
storey dwellings and duplexes. Most of these new dwellings were located in the older
part of the neighbourhood west of College Avenue. There were also a substantial
number of demolitions, with 20 buildings removed. The majority of these (9 dwellings)
were on Indian Road, likely due to the proposed twinning of the Ambassador Bridge, and
Mill Street (5 dwellings) with the remainder on Peter, Sandwich and Russell Streets.

… It is apparent from the review of development activity that the majority of 'significant'
activity (i.e. - demolitions, new construction, site plans and re-zoning) is occurring in the
older part of Sandwich. - See Table 5.1
[pg. 5.14 - 5.15]

5.6 PLANNING OPPORTUNITIES AND CHALLENGES

The Sandwich study area is very unique in that it contains a wide variety of uses,
including residential … This land use variety presents a challenge for heritage
conservation district designation, not only because of diverse interests and expectations,
but also because of the attendant diversity of built form and streetscape. It is also clear
that the Sandwich study area reflects a lengthy period of development, ranging from the
late 1700's to present day. .. developed during and after World War II … neighbourhood
still retains the original structures although many have been altered or are in need of
some maintenance and repair. There are also a number of locations where vacant or
underutilized lots exist in the study area - development of these areas has the potential to
enhance the overall character of the neighbourhood of [if] done sensitively, or detract
from it if not compatibly designed.

From a planning perspective, the current policies, designations and zones that exist in
the Sandwich study area are reasonably conducive to preserving existing heritage
resources in much of the area as permitted uses and densities are similar to what already
exists, limiting the pressure for redevelopment to some extent. However, portions of the
 27

study area on Peter and Russell Streets are zoned R3-3 which permits higher density
development. In these areas, a mix of more recent apartments ranging from 3 to 9
storeys has been constructed alongside a few remaining original dwellings. Future
pressure for redevelopment in these areas could result in the loss of the existing housing
stock and heritage assets.

Also, substantial areas directly adjacent to or in close proximity to the river that are
currently designated and zoned for industrial purposes, but which appear to be vacant or
underutilized, present substantial opportunities for redevelopment. Brownfields
programs and initiatives, combined with appropriate Official Plan redesignation,
policies and urban design guidelines, could ensure that any new development is sensitive
to and enhances the existing cultural, architectural and landscape heritage attributes of
Sandwich.

… as it is (and should be) a prime location for students to live. However, such areas
often experience additional pressure for redevelopment or conversion of existing
dwellings for student housing purposes. … appropriate mechanisms and policies be in
place to protect the key heritage attributes and features of the area and to guide
redevelopment efforts so they are compatible with hose heritage features, while also
recognizing that change and evolution of the neighbourhood will also occur.

… Ultimately, an integrated "suite" of policies, programs and guidelines that mesh

community and cultural development, heritage preservation and economic vitality will
likely be most effective to provide the rejuvenation that Sandwich residents and
businesses are seeking.
[pg. 5.15 to 5.17]

6.1.1 Population Profile

The population of Sandwich is estimated to be approximately 9,985, composed of 49%

males and 51% females. The age distribution is generally quite similar to the City of
Windsor as a whole. Exceptions to this are most notable in the 20-24 year age group,
where Sandwich has a substantially larger proportion, likely a reflection of the proximity
to the University and the 45-64 year age group, which is considerably smaller than
Windsor as a whole. See Table 6.1 - Age Distribution (p. 6.1)
[pg. 6.1]

6.1.2 Housing Profile

…the proportion of housing that is owned versus rented in Sandwich is almost the
reverse of the City … notable that the area west of College, for which the Olde Sandwich
Towne Community Planning Study was completed, had an even higher proportion of
renters at 73%. See Table 6.3 - Tenure at p. 6.2.

The high proportion of renters throughout Sandwich may have implications for a
potential heritage conservation district, as property owners may not reside in the area
and may be less inclined to invest in their buildings to help retain and restore heritage
features or may be less supportive of designation. …
 28

…the proportion of apartments in Sandwich is much higher than in the City as a whole.
… quite a number of apartment buildings in the older areas of Sandwich, but it is also
likely that quite a few apartments are also located in converted dwellings.
[pg. 6.2]

6.1.3 Economic Profile

The primary occupations for residents of Sandwich are in the manufacturing sector and
in sales and service occupations, with the greatest proportion of education attainment
being at the high school completion level. It was also noted in this socio-economic
analysis that household incomes in Sandwich are substantially lower than the incomes of
Windsor residents as a whole. This is likely a reflection of the fact that there is a higher
proportion of younger people in the neighbourhood (including students) and the
dominance of sales and service occupations which are typically lower paying. Lower
incomes may result in greater financial inability for occupants to undertake repairs and
maintenance on properties that are showing signs of age and/or deterioration and points
out the potential need for heritage grant and incentive programs to assist homeowners
who need to undertake improvements to their dwellings.
[pg. 6.3]

6.2 CONCLUSIONS AND IMPLICATIONS

… Sandwich reveals that it is a community with a relatively high proportion of one and
two person households, substantially lower incomes and a very high percentage of
residents who rent their accommodation compared to the rest of Windsor. A younger
age profile also exists in Sandwich …

Issues associated with the socio-demographic profile in Sandwich are most likely to
occur in the realm of property standards and maintenance, given the lower income
profile, as it may be more financially difficult for owners and tenants to undertake
repairs or upgrades to their property. The high rental rate that exists is also potentially
a problem, particularly if owners are absentee landlords, as it may be more difficult to
enforce property standards if landlords are not maintaining the properties.

Awareness and support for heritage conservation district designation may also be a
greater challenge with a younger, non-owner population as there is typically less
personal investment in communities or areas dominated by transient, student centered
populations. This is not intend ed to be a criticism, but simply a recognition that many
students' interests and priorities tend to focus on their studies and university / college
events rather than what is occurring in or important to long-term residents of the larger
community in which they live.
[pg. 6.4]

7.0 MOVEMENT

An overview of the movement system infrastructure in the Sandwich study area was
undertaken to assess motor vehicle travel and parking, transit, cycling, walking and
 29

goods movements and the potential implications on / of potential heritage conservation

district designation. As previously indicated, the study area is a triangular area bound
by Huron Church Road, Prince Road and the Detroit River. Within the boundary are
approximately 56 streets of varying classifications.
[pg. 7.1]

7.6 BORDER CROSSING INFRASTRUCTURE

… The Ambassador Bridge itself is a historic structure, having been constructed between
1927 and 1929. … November 1929, it was the longest suspension bridge in the world. It
remains a striking structure, visible from various point in the Sandwich study area. It
does not serve any movement function for Sandwich itself, but is a significant centerpiece
of international trade, being the busiest international border crossing in North America.
More than 25% of all merchandise traded between Canada and the United States crosses
the Ambassador Bridge. Unusual for such important transportation components, the
Ambassador Bridge is privately owned by the Canadian Transit Company.

… it is understood that the Canadian Transit Company is pursuing enhancements to the

Ambassador Bridge to better serve the traffic that uses it. Site plans were approved by
the City (January 2006) for a retaining wall and custom inspection booths on the west
side of Huron Church Road, south of Wyandotte Street, with three booths completed in
2006 and the remaining six expected to be completed mid-2007. Website information
( www.ambassadorbridge.com, www.ceaa-acee.gc.ca) also indicates that the Canadian
Transit Company is undertaking an Environmental Assessment process, in accordance
with the Canadian Environmental Assessment Act, to construct a 6-lane cable stayed
bridge just west of the existing Ambassador Bridge which will connect directly into the
existing plazas in Windsor and Detroit. … the new bridge is construction, the existing
Ambassador Bridge will be taken out of service and rehabilitated and maintained for
Canadian Transit Company operational vehicles and in cases of emergency, according
to the owner.

The Canadian Transit Company and its affiliates own many of the dwellings located on
the east side of Indian Road between the Detroit River and College Avenue. Members of
the pubic have expressed some concern regarding the impacts of the Ambassador Bridge
improvements on this area and the implications for dwellings on Indian Road.
Information from the Canadian Transit Company confirmed their intent to remove
structures from the east side of Indian Road to allow for the creation of a green buffer
area to help mitigate the effects of noise, vibration and lighting from the bridge on the
Sandwich residential area.

The Detroit River International Crossing (DRIC) study is also currently underway, to
identify a preferred alignment for a new crossing of the Detroit River. … However, it is
not anticipated that any of the potential alignments will have any significant impact on
heritage resources in the Sandwich study area as all the crossings appear to avoid the
residential / commercial area of Sandwich.
[pg. 7.5 - 7.6]

7.7 ASSESSMENT OF MOVEMENT SYSTEM

 30

7.7.2 Weaknesses

- Some properties in the study area are dilapidated, negatively affecting the streetscape
for pedestrians.

- Construction of the Ambassador Bridge span will likely result in the loss of existing
dwellings along the north boundary or Sandwich.
[pg. 7.7]

8.0 Public Consultation

8.1 CONSULTATION ACTIVITIES

… Consultation opportunities included the following:

- Meetings and input from a Steering Committee composed primarily of residents of the
neighbourhood

- Public meetings (January 25, April 28, 2007)

- Opinion survey and questionnaires at public meetings

- Meeting with the Windsor Heritage Committee (May 9, 2007)

[pg. 8.1]

8.2 SUMMARY OF PUBLIC INPUT

Consultation during the project revealed very strong support for Heritage Conservation
District designation from those who attended meetings and returned questionnaires. … a
core group of people in the community are very passionate about the heritage of the
Sandwich community, particularly its cultural value. … opportunities and major themes
arising from the input received. More detailed summaries from Steering Committee and
public meetings are included in Appendix C.
[pg. 8.1]
 31

8.2.1 Steering Committee

A Steering Committee composed of a number of residents and business owners form the
Sandwich community was formed shortly after the Study was initiated to provide
neighborhood representation and input. The first meeting held with the Steering
Committee on January 25, 2007 revealed a number of key issued and opportunities:

- Impact of the Ambassador Bridge's potential twinning; …

A second meeting with the Steering Committee, held on April 12, 2007, indicated
continued support for Heritage Conservation District designation and the preliminary
boundary recommendations.
[pg. 8.1 - 8.2]

8.2.2 Public Meetings

The initial public meeting held on January 25, 2007 was attended by approximately 30
residents. …

… primary issues and comments relating to:

- Impact of the potential twinning of the Ambassador Bridge on existing houses and
heritage resources;

- Questions as to whether designation would affect property taxes and insurance;

- … and that the Rosedale / Indian Road area was also important from an architectural
perspective.

… A second public meeting / open house was held on April 28, 2007 which was again
attended by approximately 25 to 30 people. … Comments and questions raised …

- What impact would heritage designation have on plans for the Ambassador Bridge
enhancements?

- Concerns that portions of Indian Road are identified as being inside the proposed
boundary or in the area for further study and refinement; …

At the conclusion of the meeting, there was again strong support from most of those in
attendance for designation of a portion of Sandwich as a Heritage Conservation District.
Concerns about designation were expressed by those attending on behalf of the
Canadian Transit Company and its potential implications on the enhancements planned
for the Ambassador Bridge.
[pg. 8.2 - 8.3]
 32

8.2.3 Questionnaires

… an "opinion survey" was also developed to obtain some additional information

regarding residents' opinions about the key heritage features in their neighbourhood and
to gain an understanding of their level of support for or concerns about potential
heritage district designation. Although it was made available at the public meeting and
also provided to the Steering Committee for further distribution, only twelve surveys
were returned. Of those, all were supportive of heritage district designation, and felt
that it was 'very important" to protect the area's heritage features.

… important heritage feature in Sandwich most frequently cited the commercial core,
with specific building / architectural features and cultural heritage being the next most
frequently mentioned response. Buildings / features most frequently identified included
Mackenzie Hall, Duff Baby Mansion and the post office.

A second brief questionnaire was available at the April 28 public meeting to obtain
responses regarding the proposed boundary for the heritage conservation district. Only
two responses were submitted, both of which supported designation and the proposed
boundary.
[pg. 8.3]

8.2.4 Windsor Heritage Committee Meeting

A meeting was also held with the Windsor Heritage Committee on May 9, 2007 to
present the Draft Report and obtain input regarding the report and proposed boundary.
A delegation was also present at this meeting on behalf of the Canadian Transit
Company. Comments obtained from the Heritage Committee indicated strong support
for the Study conclusions, with a request to include some additional information in the
report regarding archaeological resources in Sandwich within the study area boundary.

Representatives of the Canadian Transit Company provided a letter outlining their

concerns. … that they felt Indian Road should be excluded from the boundary and area
for further study. … also provided by the representatives regarding their intentions for
the existing Ambassador Bridge, … they intend to retain and maintain the current
Ambassador Bridge structure. …

Moved by Councillor Jones, seconded by Councillor Brister,

That the Sandwich Heritage Conservation District Overview Study and Plan draft Report
dated March 2007 prepared by Stantec Consulting BE SUPPORTED, and further that the
comments of the draft study put forth by the Solicitor for the Canadian Transit Company
BE CONSIDERED by the study consultant.
Carried.
[pg. 8.3]

8.3 CONCLUSIONS

… It appears that there is strong support for designating at lease some portion of
Sandwich as a Heritage Conservation District to help retain and protect the
 33

architectural and cultural heritage of the neighbourhood. …the area identified most
requested as being the most noticeable or important feature to protect was the
commercial core. …it is also apparent that the number of people participating in
meetings and responding to the opinion survey is very small relative to the overall size of
the study area. The only concerns expressed regarding designation and the proposed
boundary were from the Canadian Transit Company, specifically with respect to the
implications of designation on Indian Road and potential construction of the new
Ambassador Bridge span.
[pg. 8.4]

9.0 Recommendations

9.1.1 Recommended Heritage Conservation District Boundary

Based on the evaluation, the portion of the study area that merits inclusion within a
proposed Heritage Conservation District Boundary consists of two relatively distinct
areas, as illustrated in Figure 13:

- The historic commercial - institutional core of Sandwich, extending from Detroit Street
to just south of Brock Street; and

- The majority of the 1920s subdivision in the Rosedale / Alexander area which
incorporates a collection of generally well-maintained, finely detailed residential
dwellings. …

Rationale for the proposed Heritage Conservation District Boundary incorporating both
of these areas is based on the following:

- Rosedale / Alexander / Indian Road area has specific features that are distinct to this
area and contribute to its visual coherence (brick construction, porches, Tudor details,
streetscape trees and medians);

- The proposed east/north boundary of the 1920's subdivision, along the centerline of
Indian Road, is coincident with at least one of the original subdivision plan
boundaries; …
[pg. 9.1 - 9.3]

9.1.2 Areas for Further Study and Refinement

Additional portions of the study area in immediate proximity to the recommended

Heritage Conservation District boundary have been identified as "areas for further study
and refinement", in order to undertake more detailed evaluation and obtain further input
from the Steering Committee and public. These "further study and refinement" areas are
shown in shading on Figure 13 and warrant additional evaluation for the following
reasons:
 34

- These areas may be at higher risk of future change / redevelopment given their
proximity to the Detroit River, University of Windsor and Ambassador Bridge; …

Establishment of the proposed heritage Conservation District boundary was based on the
combined historical, architectural, streetscape, planning and socio-economic analysis of
the entire study area. To further evaluate the areas identified for further study and
refinement to determine whether they should ultimately be included within the Heritage
Conservation District boundary, more detailed analysis should be undertaken in Phase 2
regarding the following:

- Review and ranking of the architectural style, integrity, condition and contribution to
the streetscape for specific buildings or blocks;

- Association with specific historical persons or events;

- Streetscape and landscape characteristics / distinctiveness in comparison to areas

identified for inclusion and exclusion;

- Potential risk posed by development, redevelopment or demolition within context of

existing policies and zoning regulations including the Windsor Archaeological Master
Plan; …

Other parts of the study area were not included in the recommended HCD boundary or
"area for further consideration" as they lack the necessary architectural integrity,
consistency and distinctiveness that is necessary for designation.
[pg. 9.4 - 9.5]

9.2 BUILDING CONSERVATION, RESTORATION AND IMPROVEMENT

The Sandwich study area contains a wide variety of buildings ranging from residential to
industrial and commercial to institutional. Some are well preserved and well maintained
buildings with fine architectural details, others are in a serious state of disrepair. ...
[pg. 9.5]

9.3 STREETSCAPE PRESERVATION AND IMPROVEMENT

… It appears at times that Sandwich struggles with its collective identity, and this may be
due in part to the fact that there is much variation in the landscape ….
[pg. 9.6]

9.4 MOVEMENT

The "movement" component of the study indicated that residents are concerned about the
impacts of larger border crossing initiatives on the heritage assets of Sandwich. Both
the Ambassador Bridge and Detroit River International Crossing projects are outside of
 35

the study area and require extensive analysis and environmental assessment that is well
beyond the scope of the Heritage Conservation District Study.
[pg. 9.8]

*************************************
 36

APPENDIX A
TERMS OF REFERENCE

Sandwich Heritage Conservation District Project

Consultant Terms of Reference

Goal of the Sandwich Heritage Conservation District Studies/ Plan

… There are 2,616 properties within the area, including over 4,000 occupied dwellings
housing some 10,000 people.

Overall Structure of the Project

Phase I - .. The study will identify heritage resources and an area (or areas) appropriate
for more in-depth examination as a potential heritage conservation district(s), based on
the City's criteria for Heritage Conservation District designation as defined in the
Official Plan.

Phase II - is the preparation of a Heritage Conservation District Plan for the area/s
identified in Phase I.
[pg. 8]

Background

There are currently sixteen designated heritage properties in Sandwich, with an

additional twenty-five on the Windsor heritage Properties Inventory. … In the 1970s the
core of the former Town of Sandwich (original eight block town site centered on
Sandwich and Mill Streets) was considered a heritage conservation district, but the
designation did not proceed.

The Official Plan designates three neighbourhoods in Windsor containing collections of

important heritage resources as Heritage Areas (Schedule G: Civic Image). One of
these is the Sandwich neighbourhood, with boundaries that reflect the original town site -
the eight blocks bounded by Russell, Peter, Detroit and South Streets. …

The preservation of the historic Sandwich community has been topic of concern in recent
years, as the location for the proposed new international border crossing is being
considered on Windsor's west end. On January 30, 2006 the City of Windsor
Administration was requested to report back on the process to designate a Heritage
Conservation District in Sandwich by the following Notice of Motion moved by
Councilor Jones and seconded by Councilor Postma (M26-2006), …

A report from the Heritage Planner was considered by Council on March 27, 2006 and
the following resolution was passed (CR159/2006):

That Administration BE DIRECTED to proceed with the necessary steps to

engage a heritage consultant at an estimated cost of $0,000-$50,000 to be
charged to the Budge Stabilization Reserve Fund, to prepare a Heritage
 37

Conservation District Plan and overview study for the Sandwich Study area as
outlined in Resolution M26-2006 (the Pie) with a report back to the Windsor
Heritage Committee and Council; …
[pg. 9]

Study Objectives

The Sandwich Heritage Conservation District Project will result in a minimum of two
documents:

1) An Overview Study of the "Pie" that will gather, organize and analyze the
necessary background information that will collectively justify the creation of one or
more potential Heritage Conservation Districts and define the boundaries of such
district/s. …

The Sandwich HCD Overview Study shall include examinations/discussions of the

following:

h. Opinion Survey - Conduct a sampling of property owner interviews to

gain insight into attitudes regarding the positive and negative attributes of the
study area, and the concerns and wishes of property owners relative to
conservation objectives and change.

i. Recommendations for HCD Boundaries - Utilizing the information in the

Overview study make recommendations s to the geographic boundaries of one or
more potential Heritage Conservative Districts in the Sandwich area. In the
event more than one area is suggested, prioritize the potential districts. …

2) A Heritage Conservation District Plan that will take a closer / more detailed
look at the properties in the recommended HCD area. …
[pg. 10 - 11]

Consultation Responsibilities and Public Participation

Public Meetings in Phase I: A minimum of three public meetings will be undertaken

during the preparation of the Overview Study. One public meeting will occur after the
draft of the Overview Study is completed. This will provide an opportunity for the
consultant to incorporate significant pubic concerns in the final draft of the Overview
Study. Council will approve of the final Overview Study after considering the
recommendation of the Steering Committee and the Windsor Heritage Committee. The
meetings of the Windsor Heritage Committee and Council are additional public meetings
/ public forums relative to this issue. …

Public Meetings in Phase II: A minimum of four public meetings will be undertaken
during the preparation of the HCD Plan. The first meeting will occur after the first draft
of the HCD study / plan is completed and the second meting after the final draft of the
 38

HCD Plan is completed. The Windsor Heritage Committee will review the final draft of
the HCD study/plan at a meeting open to the public. Their recommendation will be
forwarded to Council. Final approval of the district designation / HCD Plan will be at a
subsequent Council meeting, open to the public.
[pg. 11 - 12]

Staff in Planning and other City Departments will provide:

2. Information on file about local history including the draft 1970s heritage
conservation district study in Sandwich.
[pg. 12]

****************************************
APPENDIX B

RESIDENTIAL ZONING COMPARISON

PUBLIC MEETING #1 - JANUARY 25, 2007

RECORD OF QUESTIONS AND RESPONSES FROM MEETING

A public meeting was held on January 25, 2007 to introduce the Sandwich Heritage
Conservation District project to residents and to present preliminary findings regarding
historical background research, architectural inventory and assessment, streetscape and
landscape assessment and planning context. Following the presentation, a question and
answer session was held to obtain input and comments from those at the meeting.
Approximately 30 people were n attendance, including Steering Committee members and
the following is a record of the questions and responses from the meeting.

Question:
have you looked into the second crossing of the Ambassador bridge yet?

Response (Consultant):
We will look at it in terms of the bigger picture, and how it fits in. At this point we are
still collecting information and assessing potential implications. …

Response (Consultant):
… The study area itself was defined by the City, and so we cannot speak to how it was
defined. The study area is quite large already, and it may become unmanageable if
additional areas were to be studied.

Question (general question by the Consultants to the audience)

What is the level of support for district designation, can I see a show of hands.
 39

Approximately 7% of attendees raised their hands."

48. It should be noted that Figure 13 to this report, at p. 9 - 11, shows the proposed Heritage
Conservation District Study, as established by a green line enclosing the recommended area.
This recommendation appears to exclude the east side of Indian Road.

49. On July 16, 2006, the Sandwich Heritage Conservation District Study was presented to
City Council. It was adopted and Phase II of the study was authorized by Council Resolution.

Now shown to me and marked as Exhibit 19 to this my affidavit is a copy of a transcript

of what occurred at the meeting.

50. The following excerpts are taken from the said transcript:

"Maureen Zunti: … The purpose of our study from the original terms of reference
was to provide an architectural and historical analysis of the Sandwich Community on
the west side of Windsor with a view to establishing one or more heritage conservation
districts. … So Phase II is what we are here about tonight and we prepared the
background report and that was to provide the overview study of the Pie to examine the
historical and physical fabric to identify the heritage resources in an area or areas for
more in-depth examination and to identify potential properties for Part IV designation.
Um so the purpose of Phase I is not to designate it as a district at this stage, that comes
in Phase II. … Um Phase II is to prepare the Heritage Conservation District Plan that
would provide the policy, direction and strategies as well as the final determination of
the boundary. Within the Ontario Heritage Act requires um there are sort of four key
areas that you try and look at uh to examine the character and appearance of the area,
including the buildings, the structures and other property features and to examine and
recommend the area boundaries. … We looked at the historical background, the
architectural assessment, the streetscape, the landscape, assessment, the planning
context, development planning activities, socioeconomic context, movement, opinion
surveys and then we recommended the uh proposed boundary. Uh there was also public
input through this process. There were two public meetings. We had a steering
committee composed of people from the uh area as well as from um City staff. And so …
and we had a couple of questionnaires. … The, the major concerns that were expressed
were the Ambassador Bridge impacts. And, and these concerns were expressed by
people in terms of the impact of the Ambassador Bridge on the heritage fabric as well as
concerns expressed by the Ambassador Bridge Company on what the impact of heritage
designation would be on their plans for the bridge. …varying opinions on where the
boundaries should be. … very small area to the entire area of 2,600 properties and the
primary concerns about what could be the impact of heritage designation would be, is
 40

there any impact on taxes and insurance. Basically the conclusions of our study
indicated that we feel that there is a portion of the study area that warrants heritage
conservation district designation. Um we've actually scoped it down to a very small area
out of the overall area. Um and those key areas are the historic, commercial
institutional core and then the Rosedale Alexander residential area which is a relatively
intact 1920s subdivision. Uh most of the area is too inconsistent or has been subject to a
lot of modification and redevelopment, so we don't fee that it would warrant heritage
district designation. …these were the they key considerations we were looking at from
um trying to determine what the boundaries should be, and that was the architectural
interest, consistency and integrity of the streetscape character, the historical relevance
and associations and the land use context. … recommenced boundaries that which
identified in green. … primarily the core of Sandwich on both sides of Sandwich from
Brock to about Detroit and the residential area around Rosedale Alexander and one side
of Indian Road. … shaded gray area is identified as an area for further study and
refinement and that's something that would be looked at in more detail in Phase II to um
determine whether or not any of those areas should be included or not to um identify any
sort of specific policies that so on that would need to be put in place for the boundary to
kind of address some of the uh adjoining areas. … the commercial institutional core
incorporates the key properties associated with the development of Sandwich as an
independent community. It protects the area that was identified as symbolizing the four
corners of education, religion, justice and freedom of assembly in the Sandwich and
Brock area. … There are certainly a number of buildings with significant or
architectural features and associations with significant persons and historical events in
both core area as well as in the residential area. Um the 1920s subdivision has a, a
greater concentration of more intact and recognizable architectural styles and features
than some the, the rest of the Sandwich area. It incorporates some key streetscape
features such as treed medians, views and vistas to the River and the open spaces as well
as the bridge. … combined incorporate most of the key buildings that were previously
listed or designated in Sandwich and on that map um, it may not be really easy to tell,
but the um buildings of interest are primarily the ones that are shown in pink or um the
blue colours. … again the Rosedale and Alexander area has some features that are a
little more distinct to the Sandwich area and contribute to its visual coherence. … And
there are some strong associations with the City's political and social development. …
Rosedale, Alexander, Indian Road area there is a grater concentration of buildings that
were developed at one time and throughout the area there's a little bit more
inconsistency in terms of the development periods. … And to also identify opportunities
for historical landscape and (inaudible) developments on the north (inaudible) side of
Indian Road should those structures be lost as result of the new Ambassador Bridge that
is, I know hoping there'll be, the Bridge Company's hoping will proceed. Um I want to
um emphasize that this study did not do a building-by-building inventory in this area,
2,600 buildings, we would still be doing that analysis. It was far too large an area to do
a building-by-building assessment and inventory. …
[pgs. 1 - 4]

MARY ANN CUDERMAN: … Um I am just here as part of the steering committee. …

[pg. 4]
 41

MAYOR FRANCIS: Thank you. Members of Council the next delegation is Paula
Lombardi, Solicitor and Dr. Norm Becker, on behalf of the Canadian Transit Company.
…
[pg. 4]

DR. NORM BECKER: … not as an advocate for or against the Bridge Company's
proposals uh by way of any new or enhanced bridge uh construction. Nor am I here as a
proponent or an opponent to any other crossing. My purpose in being here is advocate
uh for heritage conservation. … Thirdly, I believe that the, for you to achieve your
objectives, direct involvement by the property owners is vital. In my experience, many
property owners fear the constraints that this council may impose on them either through
this designation or through the zoning and an Official Plan designations. I, I would hope
that rather than just meeting in a public con…forum, at a public meeting with
questionnaires and/or through the steering committee who are uh on the frontline of of
heritage conservation, it would be vital to involve some of the principal property owners.
… include the Bridge Company, the University, certainly some of the heavy industry
including the Port Authority of the City of Windsor. … It really is important I believe that
the property owners, who can do so much to support this initiative, are involved directly.
… question and that is not clear in this report and that, is it now City Council's intention
to amend your holding bylaw of January to the limits of the uh areas that have been
identified with or without gray areas? … Because to leave all of these 2,600 properties
in a holding state, where nothing can be done by permit, either building or demolition
[timer going off] would not serve this community. …
[pgs. 5 - 6]

KEVIN FLOOD: …There's absolutely and unequivocally no historical value to any

building on Indian Road. … The amount of vacant and boarded up houses on Indian
Road as present count is approximately 25. Council has created a ghetto scene next to
the third largest employer in Windsor and Essex County, the University of Windsor. The
optics are not only devastating to the University, but to whole city. Parents searching for
housing accommodations for their children attending the University will be agassed
[sic]. … Any vacant building, no matter how appropriately it has been secured, poses
safety hazards to the public and most importantly to our police officers, fireman and
firewomen.

MAYOR FRANCIS: … The debate on boarded up houses was last week. …

[pg. 7]

KEVIN FLOOD: … Please allow vacant and dilapidated homes to be ravished. They
are not heritage and should not be part of the Phase II. Thank you.
[p. 8]
 42

COUNCILLOR HALBERSTADT: … first to um, um, to Ms. Zunti. What does uh Mr.
Flood reference the 25 houses on Indian Road and a lot of them are, are vacant um.
What, what exactly could you tell us tonight, what exactly does heritage designation
mean if the, you have a vacant building, it's boarded up, there's no intention of the owner
or owners to restore it or improve it or repair it. Uh what happens then? Uh does it just
stay up forever or what is the process?
[pgs. 12 - 13]

MAUREEN ZUNTI: Well that would be dependent on what kind, specific policies got
established in the second phase because part of Phase II would be to identify what kind
of um work would require heritage alteration permits, what kind of approvals would be
required for demolition and so on. So that kind of information would be (inaudible) with
more specifically in Phase II. Um I know you can in some case put stronger policies and
bylaws in place for property maintenance standards and so on in heritage district than
you would in another, in a non-heritage district. Um whether or not the city would
choose to go that direction and whether or not that would be recommended as part of
Phase II, I don't know at this stage. But those would be the kind of things that would be
dealt with in the second phase.

COUNCILLOR HALBERSTADT: So you're saying conceivably the City could say fix up
your building and do it in a fashion that is uh consistent with the heritage …

MAUREEN ZUNTI: I don't know if they an say "fix it up" but they could probably
enforce some level of maintenance, property standards and maintenance. But I would
expect that you would have certain um bylaws in place already, would speak to that to a
certain extent.

COUNCILLOR HALBERSTADT: … Um I guess why did you choose Indian Road uh, I
know you mentioned in your study landscaping and uh um streetscaping, um, I guess the
houses are, are similar, uh, architecturally, but uh why would that be included? Is it
because uh, uh you know the Ambassador Bridge is right there or their expansion uh uh,
you know their expansion plans are right there?

MAUREEN ZUNTI: Uh it has nothing to do with the Ambassador Bridge and we have
not included the, sort of north or east side of Indian Road. It's in the area for further
consideration. Um in my view, that area, if the environmental assessment process goes
through for the Ambassador Bridge, in intent of having that as an area for further
refinement consideration really is an opportunity for Phase II to prevent, to potentially
provide some input with respect to um the landscaping or interpretive features that could
potentially be put in place along that area. Because my understanding is that if the
Bridge goes through, that area would be a landscaped corridor, similar to some of the
landscaped corridor that's farther um up on Huron Church Road. As so that would be a
way of trying to kind of link the history of the area to something that is obviously
changing, in that area but it's, the intent is not to have that area as an area for further
study and refinement as a way of trying to stop the Bridge in any way, shape or form. Uh
the area on the sort of south or west side of Indian Road uh we have included because we
 43

went onsite quite a number of times and felt that the side has still more architectural
intactness or integrity yet uh in terms of the the materials and so on. And it also is
consistent with the, sort of the era of development, the subdivision plan that was initially
established, at least one of them. …

MIKE: The uh side of Indian Road, all of the property's still maintain a cohesive
streetscape and connect directly to the rest of the 1920s development which is bounded
by roughly Detroit, Alexander and Indian. So it's a natural edge to the development of
the 20s when Sandwich experience its uh building boom.

COUNCILLOR HALBERSTADT: … In the second phase you would be engaging uh the I

guess the Ambassador Bridge, with regard to if they don't want to enhance their houses,
uh they want to just tear them down and, and start again or building something different.
… something that would be uh a possibility as long it, as long as it uh was consistent
with the uh, I guess with uh, the rest of the community.

MAUREEN ZUNTI: … What it means is that you try and establish design guidelines and
policies so that if and when change occurs, it is compatible with the heritage fabric that
is there. So having a heritage district designation doesn't mean that there's not going to
be any changes in the area. It doesn't mean that there's not going to be new buildings. It
doesn't mean that old building aren't going to be demolished, it just means that there's a
bit of a different process and that there are gonna be guidelines and policies in place to
make sure that what does change fits well with the area and that you're not going to get a
big gray concrete box there that completely overwhelms and destroys the character of
that area.

COUNCILLOR HALBERSTADT: … Uh by uh designating these uh other, these two

areas tonight, would it free up uh these other uh areas of Sand… of the west side to uh, to
apply for uh demolition permits? …
[pgs. 11 - 13]

MAUREEN ZUNTI: And, and this has nothing to do really, as far as I'm aware with, the
Interim Control Bylaw per se cause the Interim Control Bylaw is completely separate
thing than the Heritage Conservation District Study. I'm sure there's some relationship
between the two and how you establish one from the other but um that would be entirely
up to Council.
[pg. 14]

COUNCILLOR GIGNAC: … the scope that's being presented to us tonight has shrunken
from that original pie. Is that not true?

MIKE: Councillor to, maybe this will help. The scope has shrunk to answer your
question in the Heritage Conservation District Study.

COUNCILLOR GIGNAC: Yes.

 44

MIKE: The Interim Control Bylaw was authorized by Council in January as a means of
holding the Sandwich Community as a whole, heritage or not, intact until a study could
be completed.

COUNCILLOR GIGNAC: Correct.

MIKE: That study is the Community Improvement Plan, not the heritage study ..

COUNCILLOR GIGNAC: It has nothing to do with this study …

MAYOR FRANCIS: That's correct.

COUNCILLOR GIGNAC: … is what you're saying.

MIKE: … ICBL, if you go back to the bylaw, uh the reasons for it was to conduct a study
and the study was the Community Improvement Plan …
[pg. 16]

MAUREEN ZUNTI: … And so by excluding you know and king of jigging in and out,
you compromise the ability to have sort of a cohesive hold over the long term. …
[pg. 17]

COUNCILLOR POSTMA: … This Stantec Team. Um very simply put, um how many
community meetings did you hold and how was the public notified of them? And did you
indeed sit down with property owners?

MAUREEN ZUNTI: We didn't sit down with property owners on an individual basis.
The uh public meetings, there were two public meetings. Um and there was also the
presentation at heritage, um the Windsor Heritage Committee…

Um the notification was through uh notice in the paper I believe

in advance of both of those meetings and there were also some 11 x 17 posters that were
distributed throughout the community and uh …
[pg. 18]

MAYOR FRANCIS: … The Interim Control Bylaw is directly related to the Community
Improvement Plan and it's not related to the call, the heritage study that's in front of us
this evening.
[pg. 19]

COUNCILLOR JONES: … Mr. Yanchula, the Community Improvement Plan uh does

that start after this particular study or can they be in tandem?

MR. YANCHULA: They actually are going to overlap. … This is all nested. The
 45

Community Improvement Plan was asked to look at the Pie. It's going to look at the Pie.
The question tonight is where should the Heritage Conservation District boundary
generally be, not specifically be. … The rest of the area can be dealt with through the
Community Improvement Plan. …

… the heritage area that will be governed by the Heritage Act. The
rest of it is going to be governed by the Planning Act. …

MAYOR FRANCIS: … It's those provisions under the Planning Act that clearly stipulate
that Interim Control Bylaw can be passed for a purpose of the study. Members of City
Council passed and [sic] Interim Control Bylaw for the purpose of a study, that study
being the Community Improvement Plan and not the study that's in front of you tonight
the Sandwich Heritage Conservation District. …

MR. YANCHULA: The areas outside of the heritage boundary can definitely be dealt
with, as Ms. Zunti said, uh through the Community Improvement Plan. They will just not
be dealt with under the permissions offered in the Heritage Act. …
[pgs. 20 - 21]

COUNCILLOR HALBERSTADT: … I know there was a couple of meetings uh public

meetings, but it didn't sound like there was a lot uh a lot of dialogue with uh the
individual property owners. Would that be taking place in Phase II?

MR. YANCHULA: it would be much more intense in Phase II because now we would be
knowing that the area that is actually being put up for possible heritage conservation
district status. To answer the question specifically, Nancy and I will have to go back and
look at the terms of reference that we hired these consultants on to see how we an use
those public consultation opportunities for that purpose and we will do that.
[pg. 22]

COUNCILLOR POSTMA: … On page 12 or 14 of our report where it says "movement",

this clearly shows everybody in the community that this has nothing to do with the
Ambassador Bridge Corporation and their enhanced project. This clearly says that.
That we're simply looking at the heritage conservation district. We're looking at
developing some policies and some guidelines to help preserve our heritage and to help
Sandwich Towne truly shine and become that tourism destination that we so want and
that our task force identified …"
[pg. 23]

Further Report of N. K. Becker Commenting on the Heritage Designation of the Houses on

Indian Street

51. I am advised by Dr. N.K. Becker and do verily believe that he prepared a further report
dated October 1, 2007 for the CTC.
 46

Now shown to me and marked as Exhibit 20 to this my affidavit is a copy of that report.

Now shown to me and marked as Exhibit 21to this my affidavit is a copy of the CD of
photographs referred to in Dr. Becker's report.

52. In his report, Dr. Becker states, in part, as follows, commenting on the Phase I Sandwich
Heritage Conservation District Study:
 47

"1. BACKGROUND INFORMATION:

… Phase 1 of this study concluded that two distinct areas within this large pie-shaped
area of Sandwich Town merit consideration by City Council for possible Heritage
Conservation Designation under Part IV of the Ontario Heritage Act. These districts
encompass the historic commercial/institutional core along Sandwich Street and the
circa 1920 residential subdivision in the Rosedale / Alexander neighbourhood. Other
districts within the Sandwich Study Area were not recommended for Heritage
Conservation District designation (or areas that require further consideration) by the
Consultants because "they lack the necessary architectural integrity, consistency, and
distinctiveness that is necessary for designation." However, the Consultants reported
that "additional portions of the study area in immediate proximity to the recommended
Heritage Conservation District boundary have been identified as areas for further study
and refinement, in order to undertake more detailed evaluation and obtain further input
from the Steering Committee and public". Their reasons for carrying these fringe areas
into their Phase 2 Study are cited below:
… - These areas may be at higher risk of future change/redevelopment given their
proximity to the Detroit River, University of Windsor and Ambassador Bridge;

… - To provide an opportunity for identifying landscape and interpretive elements that

could/should be considered for the north/east side of the Indian Road corridor if the
new Ambassador Bridge span is approved and requires the removal of buildings on the
east side of Indian Road, as a way to acknowledge and build awareness of the cultural
history of Sandwich.

These "Areas for Further Study and Refinement" are shown in the Consultants' Figure
l3: …

2. PURPOSE AND SCOPE:

The primary purpose of our study was to inspect all of the existing residential properties
on the east side of Indian Road from University avenue West to Mill Street so we could
assess their age, condition and heritage value. Its secondary purpose was to assess
whether these properties enhance or diminish the Heritage Conservation objectives of
the Phase 1 Sandwich Heritage Conservation District Study. The scope of our study
included the following:

1. Obtaining background information …

2. Exterior and interior inspections of the 30 additional residential dwellings …

3. Exterior inspections only of the 16 additional residential dwellings on the east

side of Indian Road that are either owned by your clients but currently still occupied
by tenants …

4. Documenting the results of our inspections by means of photographs and notes,

copies of which are appended to this report in digital formal on the enclosed CDs.

5. An analysis of the age, condition, and heritage value of these existing residential
 48

properties on the east side of Indian Road form University Avenue West to Mill Street,
based on established criteria for Heritage Conservation District designation under
the provisions of Part IV …

3. RESULTS OF INVESTIGATION:
3.1 Building Inspection Results:

… We inspected the outside of the inside of 36 of these houses between 25 May and 16
July 2007. The results of these inspections are documented in the enclosed CDs.

Our assessment … is provided below:

1. We concur with the Phase 1 findings of the City's consultants that the east side of
Indian Road does not merit a Heritage Designation based on the established criteria
for such historic designations.

2. As evidenced by the enclosed photographs, these residential dwellings are

typical of those that were commonly designed and built in Southwestern Ontario
during periods of economic prosperity from the 1930's to the 1950's.

3. Over the past 40 years, most of these single-family dwellings have been
converted to high-density rental accommodations (e.g. rooming, boarding or lodging
houses for students). Consequently, the condition of the houses, their landscaping
and their neighbourhood has deteriorated.

4. None of these houses is fully compliant with the current minimum requirements
of the Ontario Building Code. Many are also not compliant with the applicable
requirements of the Ontario Fire Code.

5. The poor condition of these properties ahs lowered the quality and the value of
the neighbouring houses that are still being occupied by their owners who have a
vested interest in preserving and maintaining their properties.

6. Our inspection results indicated tat many of these houses have deteriorated
beyond the point where they can be upcoded and restored economically. Their
structural, electrical and mechanical systems are seriously deficient. Consequently,
they pose a significant safety risk for occupants as well as a potential risk to the
public.

3.2 Neighbourhood Inspection Results:

The impact of the increased density and transient nature of the student population that is
being housed within the former single-family houses has had a debilitating effect on the
character and quality of the neighbourhood. …

4.0 DISCUSSION OF RESULTS:

As set out in our earlier report to you of 6 June 2007, our firm has spearheaded,
 49

designed and managed a number of historic building conservation and restoration

projects in Windsor-Essex County on a Pro Bono basis. We therefore wholeheartedly
support the City of Windsor's objective to conserve, preserve and restore historic
buildings, neighbourhoods and districts within Old Sandwich Town for the benefit of
future generations. However, such historic designations must be appropriately applied
based on accepted criteria and established guidelines in accordance with the purpose
and intent of the Ontario Heritage Act. To apply such heritage designations to
undeserving properties diminishes the value and respect for the powers granted to
municipalities by the Ontario Heritage Act.

Of the two distinct districts that the City of Windsor's Phase 1 Sandwich Heritage
Conservation District Study has identified as being appropriate for HCD designation,
those within the core area along Sandwich Street are clearly the more meritorious
because of their age, historical importance and their unique design and construction
attributes. The single-family dwellings within the 1920 subdivision in the
Rosedale/Alexander neighbourhood do include a number of generally well-maintained,
finely detailed residential dwellings. However, they are no older, no more unique, and of
no more historic importance than many other residential neighbourhoods in Windsor
(e.g. Riverside Drive, Walkerville, Ford City, or the older neighbourhoods in the core
area of the City of Windsor itself).

Imposing an HCD designation on the residential subdivision in the Rosedale/Alexander

neighbourhood could meet with resistance from some of these property owners. If the
City of Windsor should decide to impose such an HCD designation on this residential
subdivision, it could set an unintended precedent with unexpected consequences for
similar neighbourhoods across the entire City. Not all property owners are likely to
welcome such a Historic designation. Those who do not may deem is expedient to
demolish their buildings rather than risk having their future uses of their property
encumbered by such a possible Historic designation.

In presenting its recommendations to Cit of Windsor Council for the adoption of Phase 1
of its study, the Consultants indicated that they had no yet consulted directly with the
owners of property that falls within their proposed HCD boundaries. Until such
consultations are held, it is difficult to gauge the support or the opposition that City
Council can expect if it should proceed to impose such a designation on these properties
pursuant to the authority granted to municipalities under Part IV of the Ontario Heritage
Act. ..

5.0 CONCLUSIONS:

1. The results of our inspections and analysis concur with the findings of the Phase
I Sandwich Heritage Conservation District Study that were endorsed by the Windsor
Heritage Committee on 12 April 2207 and approved by Windsor city Council on 16 July
2007. We agree with their assessment that the properties on the east side of Indian Road
from University Avenue West to Mill Street do not merit a Historic Designation, or
inclusion within a distinct Heritage District.

2. The impact of the student housing conversion of many of these single-family

dwellings has had a slow and debilitating effect on the character and quality of the
 50

adjacent neighbourhoods.

3. None of these residential dwellings complies fully with the current minimum
requirements of the Ontario Building Code or the applicable requirements of the Ontario
Fire Code. Consequently, they pose a significant risk to occupants and a potential safety
risk to the public.

4. In our professional opinion, most of the structural, electrical and mechanical

systems in these residential dwellings cannot be repaired economically to bring them into
compliance with the current requirements of the Ontario Building Code and the
applicable requirements of the Ontario Fire Code. They have reached the end of their
useful, economic life."

Council Extends the Interim Control and Demolition Control By-Law for Another Year

53. On January 25, 2008, a special meeting of Council was held to consider a report of the
Acting City Planner respecting "Olde Sandwich Towne Ontario Control By-law 19-2007 /
Demolition Control By-law 20-2007".

Now shown to me and marked as Exhibit 22 to this my affidavit is a copy of the Minutes
of the Council Meeting for that date.

54. As reflected in those minutes, Paula Lombardi, a lawyer for the CTC, appeared before
Council to request that the report of the Acting City Planner on that subject be deferred to a
regularly scheduled meeting of Council. Another delegation, that being a Ward 2 resident, also
expressed his displeasure over these matters being considered at a special meeting of Council
with limited notice. As disclosed in those minutes, Interim Control By-law 19-2007 was
extended until February 26, 2008 to allow for an opportunity for public input at the February 25,
2008 Meeting of Council.

55. On February 25, 2008, Council again considered the extension of the Interim Control By-
law.

Now shown to me and marked as Exhibit 23 to this my affidavit is a copy of the Council
Minutes for that day.
 51

56. A number of delegations appeared before Council to speak in opposition to the

administrative recommendation that By-law 29-2007, being an Interim Control By-law, be
extended until January 29, 2009 in order to allow the municipality to complete and adopt a
Community Improvement Plan being studied for the Olde Sandwich Towne Community
Planning Study Area, stating that there is no immediacy acquiring use of such a draconian by-
law and that issues related to heritage conservation are not a proper basis for an Interim Control
By-law.

57. Now shown to me and marked as Exhibit 24 to this my affidavit is a Memory Stick
containing a video clip of Ms Lombardi's statement to Council. In her statement, Ms. Lombardi
pointed out that:

• case law has established that interim control by-laws should only be used where there are
legitimate planning issues or concerns that need to be addressed immediately;

• there must be a proper planning rationale behind the authorizing resolution and by-law;

• it must conform with the Official Plan;

• the planning review must be carried out fairly and expeditiously;

• the City has not justified any extension to the Interim Control By-law, nor is it capable of
showing that proper planning principles underlie this extension;

• there is simply no existence of undue development pressure in the area;

• the sole basis for this extension is the City's bias against the Canadian Transit
Corporation regardless of the draconian effects this by-law continues to have on the
 52

whole community;

• one of the reasons used in the staff report and by Councillor Jones to support the
extension of the interim control bylaw was to support the Heritage Conservation District
Study. However, Heritage Conservation falls under the Ontario Heritage Act. It is not a
land-use planning tool. The Ontario Municipal Board has concluded that interim control
by-laws cannot be used to protect heritage resources as they are protected by the
provisions of the Heritage Act;

• there is no other urgent matter militating in favour of an interim control by-law;

• there is no immediacy. These initiatives concerning Sandwich Towne have been going
on since 2004. Four years have now gone by. Where is this immediacy?

• Page 3, paragraph 3 of the staff report indicates that there is "no defensible basis for
identifying the properties that should remain inside or outside of the boundary";

• the boundaries proposed by this by-law are not supported by any of the City's prior
studies or planning documents or historical documents, for the Sandwich Towne area;

• the boundaries are entirely arbitrary and are not supported by any planning rationale
whatsoever;

• CTC has gone to great lengths to meet with the City's planning consultants and to share
information about the area;

• the continued failure to meet with the CTC is unwarranted, draconian and represents a
denial of natural justice and fair process;
 53

• to date all of the City's consultants have refused to meet with representatives of the
Ambassador Bridge and have completely disregarded the analysis conducted by Dr.
Becker;

• Dr. Becker has concluded that there is no heritage value for houses along Indian Road,
that there are no architectural interests and are not consistent in character, do not add to
the streestscape character, are of no historical relevance and have never been part of the
Sandwich Towne Community;

• there is no planning rationale to support the interim control by-law; and

• the extension of the interim control by-law is another back-handed way to delay the plans
of the CTC.

58. During the course of the Council meeting, three residents appeared as a delegation in
support of the extension to the interim control by-law and 12 people spoke in opposition thereto.
One institution, Maryvale, requested an extension from the interim control by-law to construct an
addition to their facility in the area.

Council Grants Permission to Demolish other Buildings in the Area

59. At the City Council meeting of Tuesday, May 20, 2008, City Council entertained two
requests for exemption from the interim control by-law and the demolition control by-law,
respecting two different properties: one located at 591 St. Joseph Street and one located at 2919
Donnelly Street.

Now shown to me and marked as Exhibit 25 to this my affidavit is a transcript of that

meeting.

60. During the course of that Council meeting, the following comments were made (in part):
 54

"City of Windsor Council Meeting - Tuesday, May 20, 2008

MAYOR FRANCIS: … Item No. 6, 591 St. Joseph. Request for exemption from the Olde
Sandwich Towne Interim Control By-law. …
[pg. 3]

THOM HUNT: Mr. Mayor, Members of Council, I guess uh, to answer your question I
would say that the reason this Council put the Interim Control By-law in place explicitly
is to freeze development. And it's, and it's, you know obviously there's a hardship and
there's a hardship felt with throughout the entire community. And not just Mr. Buschman
but um the reason obviously this Council passed that was so that we could stabilize the
area, not entertain any development even if it did conform to the zoning.
[pg. 11]

THOM HUNT: … we don't want to prejudice the outcome or impact the range of zoning
changes we can make if in fact this is an area we want to change zoning so. Uh we want
to have those, uh, comforts available to us at the end of the process when we do
implement Official Plan amendments and Zoning By-law changes not to have allowed uh
development to occur when we don't really know the outcome of the study. And so today
and I, I spoke about it earlier, we do not have the findings before to, to adequately
answer your question Councillor Mara, as to whether or not this would detrimental to
the Interim Control By-law and, and the community impre … uh improvement plan
process that we're currently underway. …

… obviously in about five months time we'll be back before this Council
with our recommendations, prior to the lifting of Interim Control By-law. …
[pg. 12]

COUNCILLOR VALENTINIS: … it should be stronger reasons for granting exemptions

and I haven't the strong reason. Uh for someone who doesn't live in the area, has no
intention of moving into the area, to come in and build more student housing, basically
for 12 students, that's not gonna attract anyone to live next door. Uh I don't see that as
an improvement. I don't see that as being a critical need and I don't see that as being of
such an urgent nature that it can't wait. … The Interim Control By-law is going to be
there for, we're not sure you know how many more months. Uh but it certainly can't be
extended beyond this year and I have not seen any urgent case whey we have to allow
now a four-unit to be built where there was only a one-unit purchase there to be torn
down for development purposes.
[pg. 15]

COUNCILLOR HALBERSTADT: … Um I guess I would like to maybe remind uh

Councillor, Council and uh anybody else by designating an area and going through a
study and marking it a C.I.P. etc. does not mean that there's gonna be development in the
future. …
 55

MAYOR FRANCIS: … Motion carries. Item No. 72919 Donnelly Street request for
exemption form demolition control bylaw and interim control bylaw, Kevin Flood.
Councillor Marra?

KEVIN FLOOD: … I find it a novel idea that a property owner who does not live in this
particular area, that has deep concern for the neighbourhood and especially the three
remaining senior who live across the street from 2919 Donnelly must come before
Council to try and plead for permission to clean up a dilapidated eyesore. … There is no
intent on may part to come forward with a request for a building permit in the near
future due to unfortunately to the economic uncertainty of our area. … There's
absolutely no chance of this home ever being rehabilitated. … So the choice is yours, let
the seniors across the street from 2919 Donnelly live out the final years of their life
looking at a vacant lot with green grass or to allow the senior to continue to view an
eyesore that not one person in this audience would be content with next door to them. …
[pgs. 16 - 17]

COUNCILLOR HALBERSTADT: Okay, so um if you're denied the opportunity to

demolish tonight uh what, what's your options? Walk way from the property or?

KEVIN FLOOD: …There is no financial gain whatsoever for me being here tonight.
The only reason I'm here is because I want to do the right thing. The right thing is to
take the building down, uh give the neighbours across the street a little peace of mind,
protect the neighbourhood from vagrants, pedophiles and whoever else. There, there's
just absolutely no intent on my part here to do anything else but knock the building down.

KEVIN FLOOD: … I would have moved forward with a building, but unfortunately right
now with, with the vacancies in the area and the economic downturn in our area that uh
there's no, there's no plans at this time to move forward. …
[pgs. 18 - 19]

COUNCILLOR HATFIELD: … Um we've heard from Mr. Flood that he has no intention
to build right away. We've heard from him that this building cannot be rehabilitated
although we have heard from our professionals in the Building Department that what
remains of his home is structurally sound and could be fixed up. … we're going to use
our common sense, why would somebody pay $50,000.00 to comply with the City of
Windsor work order when his only intention is to knock a building down and he can't
knock it down for another five months. … we've got a building that's somewhat unique in
that area because all of the other buildings uh pretty well in that area are boarded up,
secured, there's chain link fence going around them. I went out after seeing Darryl
Newcomb's report sometime ago on the A Channel where they were putting up the chain
 56

link fence around a lot of the other properties. … leave it up, we can spend all kinds of
money in court and at the end of the day, we know the building is gonna come down. … I
believe is gonna cost an arm and a leg and what's the, the benefit at the end of the day,
that building is gonna come down. Why not let him knock it down now. Clear up the lot.
We won't have the bunch of debris dumped there. Um the neighbours across the street
have contacted us. They want it down. Um I, I just think it would be beneficial to the
neighbourhood, beneficial to the City's reputation and I just don't know why we don't get
on with it.
[pg. 21]

COUNCILLOR MARRA: Any other comments? If not, I'll call the question. All those in
favour? Opposed? And that carries: Thank you Mr. Flood.
[pg. 23]

Sandwich Heritage Conservation District Final Report

61. In July 2008, the Sandwich Heritage Conservation District Conservation Plan Final Draft
Report was prepared.

Now shown to me and marked as Exhibit 26 to this my affidavit is a copy of that Plan.

62. The following excerpts are taken from that Plan:

"The Sandwich Heritage Conservation District
Conservation Plan
Final Draft Report
July 2008

1.0 INTRODUCTION

1.1 BACKGROUND

The Sandwich Heritage Conservations District Study consists of two phases. Phase 1
focused on the inventory and assessment of architectural and streetscape characteristics,
along with research and analysis of the historical and planning context of the area.
Phase 1 was completed in June 2007 and concluded that part of the study area met the
City's Official Plan criteria for designation as a heritage conservation district under Part
V of the Ontario Heritage Act. This area consisted of two relatively distinct sections
including the historic commercial / institutional core and the majority of a generally
well-maintained and finely detailed 1920s subdivision in the Rosedale / Alexander area,
as shown in Figure 2. Additional properties on the fringes of these areas were also
identified as requiring further investigation to determine whether they should be included
 57

in the ultimate boundary of the heritage conservation district. As a result of the study's
conclusions, Windsor City Council approved the initiation of Phase 2 to prepare the
Heritage Conservation District Plan for Sandwich. …

Public consultation is a key component of both phases of the Sandwich heritage

Conservation District Study. In Phase 1, this consisted of two public meetings to review
study findings, obtain input and present draft recommendations, meetings with the
Steering Committee, a presentation to the Windsor Heritage Committee (WHC) and
questionnaires.

Phase 2 has also had significant public involvement, including meetings with the
Steering Committee, WHC, two public meetings along with questionnaires distributed to
the community. These have served to inform local residents and property owners about
the Conservation Plan, its guidelines and recommendations and, more importantly, to
obtain input fro thee parties and identify issues and concerns.
[pg. 1.2]

1.2 PURPOSE OF THE HERITAGE CONSERVATION DISTRICT PLAN

The purpose of the conservation plan is to establish a framework by which the heritage
attributes of the Sandwich area can be protected, manages and enhanced as the
community evolves and changes over time. It will provide residents and property owners
with clear guidance regarding appropriate conservation, restoration and alteration
activities and assist municipal staff and council in reviewing and making decisions on
permit and development applications within the district. Specific requirements to be
included in the Conservation Plan, as identified in the Terms of Reference established by
the City of Windsor …
[pg. 1.3]

1.4 IMPLICATIONS OF HERITAGE CONSERVATIONS DISTRICT

DESIGNATION

Heritage conservation districts focus on the preservation of a collective area to help

retain the key functional and visual attributes that convey or have a connection to the
history of the area n which they are located. A heritage conservation district can include
buildings, the natural and cultural landscapes, roads, trails, lighting and other features
that contribute to the area's character. When an area is designated as a heritage
conservation district, it means that its essential elements are protected, but it does not
mean that an area is 'frozen' in time or intended to be restored to some specific historical
period or style.

Generally, it is the streetscape that is the focus of a heritage conservation district - as a

result, policies and guidelines are put in place to provide direction about what kinds of
alterations, additions or new construction will be considered appropriate. Heritage
alteration permits are generally required for major alterations and additions that are
visible from the street or other public spaces such as laneways and parks, as well as new
 58

construction. Minor alterations, or additions and renovations to the side or rear of

buildings may not require heritage alteration permits if they are not visible from streets
or public spaces, although conservation guidelines may still be provided to assist with
maintenance and repair of certain building elements. The interior of buildings is not
affected in any way within a heritage conservation district.

Although a heritage conservation district designation does put additional policies and
guidelines in place, along with a more stringent review / approvals process, residents
should not view designation as overly restrictive, cumbersome or an imposition on
property rights, but rather as an opportunity to retain and enhance an area's most unique
and attractive features for the overall benefit of themselves and the community and city
as a whole.
[pgs. 1.4 p 1.5]
 59

2.0 HERITAGE DISTRICT BOUNDARY AND CHARACTERISTICS

2.1 REASONS FOR DESIGNATION

… Heritage Conservation Districts are required by the City of Windsor Official Plan to
meet one or more of the following criteria:

1. The area may be comprised of buildings, structures or parts thereof, and sites or
landscapes of architectural and/or historical significance meeting the criteria
established in Policy 9.3.3.2; and

2. The areas may also include other buildings, structures, sites or landscapes which
do not individually merit designation, but which constitute infilling among properties
or architectural and/or historical significance and are necessary for the
conservation of the overall character or the area.

Specific criteria … in Section 9.3.3.2 … include the following:

• The property is to be associated with an important person or group of persons or

have played a role in an important historical event;

• The building or structure will have distinguishing architectural characteristics

(type, style or method of construction or e a notable example of work by an early master builder,
designer or significant architect);

• The building or structure will be a rare example of a formerly more common

architectural type or method of construction, or be a rare surviving example of work by an early
master builder, designer or significant architect;

• The property is associated with the past living/working environment of a

significant element of Windsor's population or have been associated with an important aspect of
the city's political, economic, social or technological development;

• The property be recognized as a long-standing landmark or is considered to

contribute positively to the cityscape due to aesthetic value.

• The property exhibits sufficient features of architectural and/or historical value

to merit designation in its present condition, or, unless funds have been committed for its
restoration, with only such restoration work as an owner of the building or structure might
reasonably be expected to undertake.
[pg. 2.1]

2.2 RECOMMENDED HERITAGE DISTRICT BOUNDARY

Phase 1 of the Sandwich HCD study concluded that a logical heritage conservation
district boundary would incorporate two distinct areas of the overall original study
boundary, including the historic commercial/institutional core of Sandwich which
 60

extends from Detroit Street to south of Brock Street and a large majority of the 1920s
subdivision in the Rosedale and Alexander area. Several areas were identified as areas
for further review and analysis in Phase 2. As a result of further investigation, revisions
have been made to the boundary recommended in the Phase 1 report. The
Recommended Heritage Conservation District boundary is shown in Figure 3. The
boundary is generally consistent with that proposed in Pahse1; very minor alternations
have been made as a result of the additional analysis of the area. …
[pg. 2.2]

2.2.2 Residential Characteristics

… - Rosedale / Alexander / Indian Road area has specific features that are distinct to this
area and contribute to its visual coherence (brick constructions, porches, Tudor details,
streetscape trees and medians);

… - Both sides of Indian Road contain good examples of the typical 1920s home,
distinguished by a distinctive roof line that incorporates the front porch, some half
timbering and usually the use of red, rug brick.
[pg. 2.3]

2.3.2 Architectural Character

… The residential section of the Sandwich Heritage Conservation District, in the Detroit,
Alexander, Rosedale and Indian Road area is quite distinct architecturally from the
Town Centre area as well as much of the rest of Sandwich. Many of the buildings exhibit
Tudor influences in their roof forms, …Also within this area are numerous four-square
houses, one of the most common styles found in Sandwich, with both frame and brim
exteriors. These generally unadorned but substantial two and a half storey buildings,
with their broad porches, double-hung windows and dormers provide architectural
continuity within the district as well as a common thread to other areas of Sandwich that
are not within the boundaries of the heritage conservation district.
[pg. 2.6]

3.2 PRINCIPLES

… Find a Viable Social or Economic Use - Buildings that are vacant or under-utilized
come to be perceived as undeserving of care and maintenance regardless of architectural
or historic merit. City Council and staff should actively encourage and support
appropriate forms of adaptive reuse when necessary to preserve heritage properties.
[pg. 3.2]

4.1 DEVELOPMENT PATTERN AND LAND USE

 61

… the following policies are proposed for the residential uses and designations within
the HCD.
(a) … low density residential land use character remains dominant;

(d) … adaptive reuse of the existing heritage building stock should be considered
wherever feasible;

(d) Severance which would crate new lots will be permitted …

(h) … New attached garages extending beyond the front of the dwelling are not
permitted.
[pgs. 4.1 - 4.2]

4.2 ADDITIONS AND ALTERATIONS TO EXISTING BUILDINGS

… Policies:

(a) Minor exterior alterations and additions to buildings shall be permitted provided
such alterations are not within any front or exterior side yard;

(b) Structural alterations to the exterior of buildings visible from the street are not
permitted in the event of residential conversions. Any exterior stairs or fire
escapes are to be enclosed and kept away from the front or street facing façade
of the structure;

(c) Additions shall be subordinate to the original structure to allow the original
heritage features and built form to take visual precedence on the street; and

(d) Design guidelines provided in Sections 7 of this Plan will be used to review and
evaluate applications for additions and alterations to ensure that the proposed
changes are compatible …
[pg. 4.3]

4.3 NEW BUILDINGS

… Policies:

(a) New buildings will respect and be compatible with the heritage character of the
Sandwich area, through attention to height, built form, setback, massing, material and
other architectural elements such as doors, windows, roof lines;

(b) Design guidelines provided in Section 7 of this Plan will be used to review and
evaluate proposals for new buildings to ensure that new development is compatible with
the adjacent context.
[pg. 4.3]
62
 63

4.4 DEMOLITION

… it is recognized that there are situations where demolition may be necessary , such as
partial destruction due to fire or other catastrophic events, severe structural instability,
and occasionally redevelopment that is in keeping with appropriate City policies.

Policies:

(a) … heritage buildings … strongly discouraged;

(b) Any proposal to demolish a heritage building or portion of a heritage building

within the District shall require approval from Council;

(c) Where demolition of a heritage building is proposed, the property owner shall
provide supporting documentation demonstrating appropriate reasons for the
demolition;

(d) In situations where demolition is approved by Council, written and photograph

documentation of notable architectural features, construction techniques,
streetscape and vegetation are required to create a record of the building and its
components;

(e) All documentation noted above is to be carried out by a qualified heritage

consultant; and

(f) Reclamation of suitable building materials such as windows, doors, mouldings,

columns, bricks, etc. for potential reuse in a new building on the site or as
replacement components for other buildings in the neighbourhood which require
repair and restoration over time is strongly encouraged if demolition is
approved for any heritage buildings in the District.
[pgs. 4.3 - 4.4]

4.8 SITE SPECIFIC POLICIES

4.8.1 Indian Road - East Side

Despite recent deterioration, the east side of Indian Road remains a vital part of the
residential component of the Sandwich Heritage Conservation District. The Rosedale-
Alexander-Indian area is the largest concentration of well-preserved 1920s era housing
in all of Sandwich and deserves specific consideration that will contribute to the
maintenance of the area's structural fabric.

Because the view of stakeholders and interested parties differ widely on the value of the
area's heritage resources, the Sandwich HCD project team has prepared several options
that we feel represent the range of potential for this section of Indian Road. The options
are ordered from most desirable (1) to least desirable (4) and each option provides
specific policies and recommendations. In all cases, the recommended boundary for the
 64

Sandwich Heritage Conservation District remains the same.

The lands located on the east side of Indian Road should be dealt with in a consistent
and cohesive manner, in a way that does not jeopardize the integrity of the
Indian/Rosedale/Alexander area. Through the implementation measures following this
plan, (Official Plan, Zoning By-law) Council will ensure the most appropriate degree of
preservation for this area.

OPTION 1

Preservation of the existing buildings, existing vegetation and other landscape elements,
such as boulevards and sidewalks, along the east side of Indian Road is the most
appropriate approach to maintaining the integrity of the area. The original buildings
should be restored and repaired and any additional rehabilitation measures needed
should be undertaken to ensure their continued conservation. Maintaining and
enhancing the existing streetscape as outlined in the Heritage Conservation District Plan
should also be integrated into any restoration measures taken.

Policies & Recommendations:

• The policies and guidelines of this plan shall guide the restoration of these
houses.

• Heritage Alteration Permits will be required for all restoration work affecting
the front and side facades visible from the street.

• WHC and Council approval will be required for all work that requires a
Heritage Alteration Permit.

• An enhanced property standards by-law should be adopted as a means of

protecting the area against further neglect (See Section 5.5).

OPTION 2

If all reasonable measures to preserve the buildings and streetscape have been exhausted
and demolition is required, new buildings and streetscape features should be constructed
as soon as reasonably possible.

Policies & Recommendations:

• Demolition should only be considered when all reasonable approaches to

preservation have been exhausted and demonstrated in writing to Council.

• Demolition must adhere to the policies contained within Section 4 of the Plan.

• If and where demolition does proceed, every reasonable effort shall be made to
preserve significant and mature vegetation on both public and private properties.
 65

• New buildings should respect and be compatible with the heritage character of
the Sandwich area through attention to scale, built form, setbacks, massing, material, textures
and other architectural elements as defined in Section 4.3.

• New landscape elements should be designed to reflect the heritage character of

the neighbourhood and should be compatible with the policies contained within Section 8 of this
Plan.

• Design guidelines provided in Section 7 of this Plan will be used to review and
evaluate proposals for new buildings to ensure that new development is compatible with the
adjacent context.

• Site Plan Review shall be required for new buildings.

OPTION 3

If demolition is required without building replacement, then some form of adaptive re-
use or preservation of the original building features should be incorporated into the
succession plan for the site. The form of this can range from maintaining the original
building foundation is situ to recreating the likeness of the building or architectural
features in an appropriate interpretive manner, such as paving patterns to mimic
property lines or sculptural elements to outline vestiges of the District's history. Within
this option, the landscape presents the opportunity to integrate proposed or future
development into the surrounding District. Retaining existing street trees, or recreating
the form and pattern of streetscape vegetation can aid in creating a cohesive and united
landscape, bringing together a variety of built forms. There is a great deal of flexibility
and interpretation permitted with this option. However, options must be sensitive to the
context of the community and remaining residences on the west side of Indian Road.
Adaptive reuse of existing elements in highly recommended for this Option.

Policies & Recommendations:

• Demolition should only be considered when all reasonable approaches to

preservation have been exhausted and demonstrated in writing to Council.

• Demolition must adhere to the policies contained within Section 4 of the Plan.

• If and where demolition does proceed, every reasonable effort shall be made to
preserve significant and mature vegetation on both public and private properties.

• New landscape elements should be designed to reflect the heritage character of

the neighbourhood and should be compatible with the policies contained within Section 8 of this
Plan.

• Prior to demolition, approval of an overall master plan for the adaptive reuse of
the east side of Indian Road is required.

• Public consultation will be considered as part of the review process for the
 66

Indian Road master plan.

OPTION 4

Option 4 provides the policies and guidelines in the event that none of the existing
buildings and streetscape features are preserved on this stretch of Indian Road.
Although the HCD boundary would remain in tact, the area on the east side of Indian
Road shall be used as a public open space with linkages to the Detroit River. The
heritage value of Indian Road shall be conveyed by way of interpretive/cultural
landmarks.

Policies & Recommendations:

• Demolition should only be considered when all reasonable approaches to

preservation have been exhausted and demonstrated in writing to Council.

• Demolition must adhere to the policies contained within Section 4 of the Plan.

• If and where demolition does proceed, every reasonable effort shall be made to
preserve significant and mature vegetation on both public and private properties.

• New landscape elements should be designed to reflect the heritage character of

the neighbourhood and should be compatible with the policies contained within Section 8 of this
Plan.

• Prior to demolition, approval of an overall master plan detailing how the lost
resources (buildings, sites, streetscape and vegetation) are to be commemorated for Indian Road
is required.

• Public consultation will be considered as part of the review process for the
Indian Road master plan.
[pgs. 4.6 - 4.9]

5.3 SITE PLAN CONTROL

Recommendations:

- Site plan control should continue to be required in accordance with current City of
Windsor policies, to ensure that redevelopment is appropriately reviewed and that the
design guidelines included in this Plan are being considered. …
[pgs. 5.3]

5.4 DEMOLITION

… Demolition of buildings within a heritage district is strongly discouraged. The

 67

Ontario Heritage Act allows municipalities to prevent demolition of heritage buildings,

or establish conditions for demolition, such as the requirement for an approved site plan
or a specific time frame for construction of a new building on the site. However, it is
recognized that there are situations where demolition may be necessary such as partial
destruction due to fire or other catastrophic events, severe structural instability, and
occasionally redevelopment that is in keeping with appropriate City policies.

A demolition permit is required when all or apart of a residential building is proposed

for demolition in the City of Windsor. Buildings that are designated under Par IV or
Part V of the Ontario Heritage Act or listed in the City's heritage inventory require
Council approval for demolition. Prior to Council approval, planning staff reviews the
request and issues their recommendation regarding the demolition to Council.

Recommendations:
- Any application for demolition within the Sandwich Heritage Conservation District
shall be considered by the Windsor Heritage Committee and recommendations made to
Council.
[pg. 5.4]

5.5 PROPERTY STANDARDS

As a means of maintaining heritage properties within Heritage Conservation Districts,

the Ontario Heritage Acts allows municipalities to pass a bylaw setting additional
standards for heritage resources and for requiring property owners to maintain
properties to these standards.

Recommendations:
a) The City of Windsor should consider implementing a bylaw to set additional
standards for properties within the Sandwich Heritage Conservation District.
[pg. 5.4]

5.6 HERITAGE ALTERATION APPROVALS PROCESS

… However, when a building permit is necessary for work that affects a façade that is
visible form the street or other public areas in a heritage district, an additional level to
review and approval will be applied to ensure that the proposed construction or
alteration is in keeping with the heritage character of the area.

… heritage alteration permits are required fro some projects which do not require
building permits to ensure that those changes are consistent with the policies and
guidelines of this Plan and respect and maintain the integrity of the Sandwich Heritage
Conservation District.

5.6.1 Approvals for Private Property

Section 6 of this plan provides detailed information regarding which types of projects
 68

will require a heritage alteration permit and the proposed approvals process for various
types of work in the Sandwich Heritage Conservation district. In general, heritage
alteration permits ARE REQUIRED for the following types of work:
• Additions to any façade visible form public areas (streets, open space, parks);

• New buildings constructed on vacant properties, as integrated redevelopment

projects or to replace existing buildings for any reasons;

• Major alterations to or replacement of features such as doors, windows, porches,

decorative trim on the street-facing portion of a building, where the feature being altered or
replaced will be of different style, materials or proportions than existing;

• Commercial signage affixed to buildings; and …

[pgs. 5.4 - 5.5]

5.7 IMPLEMENTATION

The City of Windsor is responsible for adopting the Sandwich Heritage Conservation
District Plan and Guidelines and establishing a designation By-law for the area. The
City must serve notice of their intention to all affected property owners within the
district. Property owners who object to the By-law can appeal the by-law to the Ontario
Municipal Board (OMB), however, only those owners who have previously indicated
their opposition to the plan and By-law may be allowed to appeal the passing of the By-
law to the OMB. …

The By-law is registered on the title of all property owners in the district and remains on
title with future property owners if the land is sold. …

The heritage alteration permit process is the main tool by which the City of Windsor
implements the goals and objectives of the plan. It provides the City with the ability to
regulate and guide development within the Sandwich Heritage Conservation district to
maintain the character of the District.
[pg. 5.6]

5.8 EDUCATION AND PROMOTION

Recommendations:
- A letter and/or information package about the Sandwich Heritage Conservation
District Plan should be provided to all property owners with the notice of heritage
district designation along with a copy of the Homeowner's Heritage Guide; …
[pg. 5.7]

7.4 ALTERATIONS
 69

Recommendations & Guidelines:

• Potential alterations should be preceded by a period of research into the original
style and appearance of the building;

• … preserve than repair, better repair than restore, better restore than construct.
…

• Make very attempt to approximate the materials, methods and quality of old
construction, rather than utilizing modern substitutes where possible; …
[pg. 7.10]
 70

8.4 VIEWS AND VISTAS

… Views to the Ambassador Bridge are also prominent within the district, both in the
commercial areas, as well as throughout the residential streets. The Bridge provides an
important touchstone for residents and visitors alike. The bridge represents a link
between two countries, and has been a defining element not only of Sandwich, but of the
entire City of Windsor.

Recommendations and Guidelines:

• Views to the Ambassador Bridge from areas within the proposed Sandwich
Heritage Conservation District should be further studied to determine appropriate view
corridors. The study should determine what, if any, land use controls are required in those
corridors.

• Views to the Detroit River from Detroit Street remain unobstructed, so that the
connection between the river and the residents of Sandwich is maintained, and …
[pgs. 8.10]

East Side of Indian Road Now Included in HCD Plan

63. It should be noted that, whereas Phase I of the HCD Plan did not recommend inclusion of
the east side of Indian Road, th Phase II, Conservation Plan now purported to include the east
side as set out in section 2.2 of that report and in Figure 3 to that report. The only explanation
give is that "As a result of further investigation, revisions have been made to the boundary
recommended in the Phase I report." There is no particular explanation contained in the report
showing what the further investigation was and why the boundary of the HCD was shifted to
include houses owned by the CTC along the east side of Indian Road.

64. On August 13, 2008, the Windsor Heritage Committee considered the Sandwich Heritage
District Plan. The Committee was chaired by Greg Heil.

Now shown to me and marked as Exhibit 27 to this my affidavit is a copy of the minutes of that
meeting. The minutes reflect, in part, the following statements made at that meeting:
"Windsor, Ontario August 13, 2008

A meeting of the Windsor Heritage Committee …

4.2 Sandwich Heritage Conservation District Plan

 71

… "Phase 2 has also had significant public involvement, including meetings with the
Steering Committee, WHC, two public meetings along with questionnaires distributed to
the community. These have served to inform local residents and property owners about
the Conservation Plan, its guidelines and recommendations and, more importantly, to
obtain input from these parties and identify issues and concerns."

Section 4.8.1 of the Conservation Plan under Site Specific Policies refers to the following
as it relates to Indian Road:
"Despite recent deterioration, the east side of Indian Road remains a vital part
of the resident component of the Sandwich Heritage Conservation District. Because the
views of stakeholders and interested parties differ widely on the value of the area's
heritage resources, the Sandwich HCD project team has prepared several options that
we feel represent the range of potential for this section of Indian Road. The options are
ordered from most desireable (1) to lease desirable (4) and each option provides specific
policies and recommendations.

…The original buildings should be restored and repaired and any additional
rehabilitation measures needed should be undertaken to ensure their continued
conservations. …"

The Chair asks why Indian Road was included in the HCD.

K. Buck advises that the combination of the two areas best represent the heritage
attributes. E. Vandermaarel indicates that the area began as a large pie with 2,000
building structures and the Rosedale/Alexander area was included as it best represented
the 1920's era.

Representatives from the Canadian Transit Company and the American Bridge Company
are present to discuss the Sandwich Heritage Conservation District Conservation Plan.
Dr. Norm Becker indicates that there is no heritage value to the homes located on Indian
Road at the present time. He states that the Sandwich Heritage Conservation District
Conservation Plan prepared by Stantec does not adequately cover the heritage and
historical value of this area, which includes the presence of the First Nations, French
Voyageurs, War of 1812, and the Underground Railroad. He indicates that the homes on
Indian Road have been included in the Heritage Conservation Plan and the First Baptist
Church has been excluded. He asks how the boundaries of the Plan were delineated, s
they do not follow the Official Plan. He notes that McKee and Mill Parks were not
included.

P. Lombardi distributes the following documents;

• "Green Corridor - Ambassador Bridge Plaza Green Space Proposal - attached

as Appendix "B"

• "Comments Submitted and Requests for Consultation on Behalf of the Canadian

Transit Company" - ( available for viewing in the Clerk's Department)
 72

• "Historical Development of Sandwich Towne and the Surrounding Area"

prepared for The Canadian Transit Company August 2008 - attached as Appendix "C"

• "1797 Lands purchased for Settlement Area of Sandwich, 1978 Neighbourhood

Improvement Plan, 1989 Community Improvement Plan, 2000 City of Windsor Official Plan",
attached as Appendix "D"

• Letter from Paula Lombardi, Siskinds Law Firm dated August 13, 2008
regarding the "Sandwich Heritage Conservation District Conservation Plan - Final Draft
Report, July 2008 ("Report" - attached as Appendix "E"

Susan Whelan expresses concern with the Heritage Conservation District Plan and she
suggests that the Committee send it back as Phase 2 is based on misrepresentation. She
strongly objects to the boundary outlined in the Plan that ignores the University of
Windsor and Assumption Church. …

Dr. Becker states that the landlords converted the homes on Indian Road to student
housing and he notes that the Bridge Company did not own them at this time. S. Whelan
indicates that when the Bridge Company purchased the homes, they permitted the
students to reside in the premises at not cost. She states that the Bridge Company was
responsible for the taxes.

P. Lombardi advises that the proposed replacement span is to be 100 fee form the
centerline of the existing bridge and that houses located on Indian Road will be in the
green buffer area.

The Chair states that the Committee is not in a position to take any action this evening as
it relates to the Sandwich Heritage Conservation District Conservation Plan. …

3. DELEGATIONS

Mary Ann Cuderman, citizen regarding the Sandwich Heritage Conservations District
Plan

…She states that no only are we looking at a span for the bridge, but that 60 - 70 acres
will be required for the inspection plaza.

Terrence Kennedy, citizen regarding the Sandwich Heritage Conservation District

Plan

… T. Hunt states that the Interim Control By-law will be lifted in January 2009 and there
is a need to establish the Heritage Conservation District Plan, boundary and policies.
He notes that a range of financial incentives will be offered.

Moved by A. Foot, seconded by S. Tunea,

That the Sandwich Heritage Conservation District Conservation Plan Final Draft Report
BE TABLED to the September 10, 2008 meeting of the Windsor Heritage Committee."
73
 74

Further N.K. Becker Report on HDC Plan

65. I am advised by Dr. N.K. Becker that he completed a further report dated August 12,
2008 which reviewed and commented upon the Heritage Conservation District Plan July 2008.

66. Now shown to me and marked as Exhibit 28 to this my affidavit is a copy of Dr. Becker's
Report. In this report, Dr. Becker states, in part, as follows:
"1. GENERAL:

… While I support the City of Windsor's initiative to develop and implement a Sandwich
Heritage Conservation District wholeheartedly, I do not support adoption of the July
2008 Final Draft of the Sandwich Heritage Conservation District Plan by City Council.
In my respectfully opinion, this Plan does not comply fully with the provincial guidelines
and essential requirements imposed on the City for a successful Heritage Conservation
District designation under Part V of the Ontario Heritage Act.

… The three prime ingredients for an HCD Plan based on this decision are "evaluation,
delineation and participation." I do not believe that the Sandwich HCD Phase 1 Study,
or the July 2008 Final Draft of the Phase 2 Plan satisfy these three prime ingredients,…

2. EVALUATION:

… In my opinion, neither the Phase 1 Study nor the Final Draft of the Phase 2 Plan that
the City's Consultants have prepared for the Sandwich HCD provide the necessary
historical links to the properties within their proposed HCD Plan to justify such a Part V
designation.

In their Phase 1 Study, the consultants compressed the long and important history of
Sandwich onto a mere 8 pages, most of which are taken up by photographs and figures.
They cite no historical texts, research papers or other references. Nor do they append
any documents to their Phase 1 Study to demonstrate how the "two relatively distinct
areas" illustrated in their Figure 13 are connected to the rich heritage of Sandwich. …

… City's Consultants have failed to consider or address in their historical evaluation of

the Sandwich area are listed below:

6. The impact of the Essex Terminal Railway, the St. Lawrence Seaway, the
Ambassador Bridge and Highway 401 on the Sandwich area.

7. The paramount importance of the Ambassador Bridge and the Huron

Church Rd. corridor which constitute a vital, international transportation link
for the movement of goods, services and people. These transportation links have
and will continue to require enhancements to improve their safety, efficiency and
security that are destined to affect both land uses and development within and
adjacent to Sandwich.
 75

8. … It does not reference or acknowledge that the Ambassador Bridge is

itself an international heritage structure. …

9. Neither the Phase 1 Study, nor the Phase 2 Plan address the radical
changes that have occurred within Sandwich over the last 50 years, during
which the City of Windsor relocated many low-income families and social
services agencies into Sandwich from the City core and Assumption College
morphed into the University of Windsor. These changes caused an exodus of
upper and middle-income families from Sandwich and a profound change in the
demographics of the area. Many of the older single-family dwellings were
converted to apartments, student accommodations, restaurants or convenience
stores. Modest buildings were demolished and replaced with unsightly Spartan
apartment blocks. And while a few older properties were restored many more
fell into disrepair, or were materially altered or destroyed.

10. The Historical Context that the City's Consultants have considered in
their evaluation of the heritage value of their proposed Sandwich HCD is frozen
in time. It makes no reference whatsoever to the post-1935 history of Sandwich
after the Town of Sandwich and the other Border City communities were
amalgamated into the City of Windsor. Their drawings are inaccurate (i.e. do
not accurately reflect the buildings, parks, industries, Ambassador Bridge
facilities, Huron Church Rd. Corridor or other important developments that
currently exist within or adjacent to their proposed Sandwich HCD).
Consequently, the Consultants present an unrealistic and outdated picture of the
Sandwich area.

11. The challenges posed by the rapid socio-economic changes that have
occurred within the Sandwich are over the last 50 years are well known to the
City. Numerous studies and reports to City Council attest to the serious social,
economic and infrastructure problems that exist within and adjacent to the
proposed Sandwich HCD. These have not been considered or addressed by the
City's Consultants in either their Phase 1 Study or Phase 2 Plan.

3. DELINEATION:

… In my opinion, the July 2008 Final Draft of the Sandwich HCD Plan is flawed for the
following reasons.

5. The inclusion of the post 1920s houses on Indian Rd. within the
proposed Sandwich HCD cannot be justified for the reasons set out in my reports
of 6 June 2007 and 1 October 2007. Historical maps of the Sandwich Town area
clearly show that this land was not part of the original (1737) Town site, was
farmed by Thomas Pajot and that there was no timber on the land except scrubby
Ground Oaks. It remained farmland until the land was subdivided for
residential dwellings in the 1920s. The remaining houses on these lots are of a
modest type and without architectural or construction features that distinguish
them from the many other houses built during the same time period in the
Windsor area. Many of these residential dwellings were converted to student
 76

housing during the explosive growth of the student population at the University
of Windsor over the last 45 years (from 1500 to 16,000 students).

6. It is well known to the City and its Consultants that the CTC purchased
the houses on Indian Rd. over the last 10 years for demolition to accommodate a
Green Corridor alongside the Ambassador Bridge. This Corridor is required to
conform with the Special Policy Provisions imposed on the Huron Church Road
Corridor by the City of Windsor Official Plan. Furthermore, the City granted
permits to the CTC for the demolition of six houses on Indian Rd. for this
purpose in 2006. However, in January 2007, City Council passed Demolition
Control By-Law 20-2007 pursuant to which it has refused to grant the CTC any
further Ontario Building Code required permits for the demolition of any of the
remaining vacated houses on Indian Rd.

7. The timing of this action (and the Sandwich HCD Study itself) coincides
with City Council's initiative to develop and promote its own design concept for
a new Detroit River International Crossing in competition against plans that
were being developed independently by the CTC, the Government of Canada and
Ontario jointly and by other private proponents.

8. In the July 2008 Final Draft of the Sandwich HCD Phase 2 Plan, the
City's Consultants assert that "the east side of Indian Rd. remains a vital part of
the residential component of the Sandwich Heritage Conservation District" and
therefore "should be dealt with a consistent and cohesive manner, in a way that
does not jeopardize the integrity of the Indian/Rosedale/Alexander area". They
offer 4 Options for doing so that run the gamut from restoring the original
houses completely, to demolishing these houses completely and creating a
"public" open space with linkages to the Detroit River along the east side of
Indian Rd. They do not explain why all of this open space must be a "public"
open space. They also do not explain how they can possibly reconcile their
Option 4 (demolition) with Heritage Conservation.

9. Nowhere in their Part 1 Study or their Final Draft Part 2 Plan do the
City's Consultants make reference to the extensive work that an interdisciplinary
and multi-institutional team spearheaded by international artist Noel Haring and
University of Windsor Professor Rod Strickland developed for a Green Corridor
along Huron Church Rd. adjacent to the recently completed Ambassador Bridge
Plaza Expansion. Parts of this plan have already been adopted by the City of
Windsor (e.g. the pedestrian bridge across Huron Church Rd. at Assumption
High School). The scope of the work carried out by this team of experts included
the costly construction of a scale model to facilitate an understanding of the
Green Corridor concept by the pubic. Both the Study and the scale model
demonstrate the vistas, landscaping features, gateways and heritage links
between the Sandwich HCD, the Ambassador Bridge, the Detroit River
Waterfront and the Assumption Heritage sites that could be achieved with the
implementation of this Green Corridor plan.

10. The City's Consultants believe that the housing that was built in the
Rosedale/Alexander Subdivision in the 1920s merit inclusion in the Sandwich
 77

HCD because they include "a collection of generally well-maintained, finely

detailed residential dwellings." While these are undoubtedly attractive
properties, so are many others of this vintage that were built in affluent
neighbourhoods elsewhere in the Border City area and elsewhere in Ontario. By
including this Rosedale/Alexander Subdivisions within the boundaries of the
proposed Sandwich HCD, the City of Windsor may well be setting a precedent
with dangerous unintended consequences. Owners of comparable "well-
maintained, finely detailed residential dwellings" in other such neighborhoods
who are not prepared to subordinate their property rights to the City's heritage
conservation plans may rebel against this Sandwich HCD designation and/or
against all other such designations elsewhere. This would surely not serve the
City's or the Provinces future interest in conserving heritage properties and
districts for the benefit of future generations.

11. The City Consultant's conclusion that the Rosedale/Alexander

Subdivision would somehow be destabilized if the Indian Rd. houses are
demolished and replaced with green space seems disingenuous. Surely the
stately house within this subdivision would benefit enormously if the modes
houses on Indian Rd. that block their vistas and links to the Assumption heritage
properties, and the Central Riverfront Park Lands were demolished and
replaced with a Green Corridor.

4. PARTICIPATION:

… I expressed my concerns about the Phase 1 Study to the City's Consultants and City
Council during the Council Meeting held on 16 July 2007. It was my understanding that
the City's Consultants would be consulting with property owners and other stakeholder
groups from the Sandwich Town area to solicit their input prior to drafting their Phase 2
Plan. However, as evidenced by their Final Draft of the Phase 2 Plan, they have not
done so.

While they reportedly held meetings with the Steering Committee and the Windsor
Heritage Committee, they have not held similar meetings or discussions with the major
stakeholders whose properties, land uses or business interests will be curtailed or
materially affected by the imposition of land use and building restrictions within the
proposed Sandwich Heritage Conservation District. These stakeholders obviously
include the University of Windsor, the Canadian Transit company; the owners of the
industries on the waterfront; the landlords of apartment buildings and other residential
properties that provide housing for University students; the Sandwich Town Business
Improvement association, the churches, schools and other institutions within and
adjacent t the proposed HCD; etc.

The public information meeting that the City and its Consultants convened during the
Phase 1 Study for the Sandwich HCD was reportedly attended by only "approximately 30
people" including Steering Committee members. Two more public meetings were
subsequently held during the Phase 2 Plan "to inform local residents and property
owners about the Conservation Plan, its guidelines and recommendations, and more
importantly, to obtain input from these parties and identify issues and concerns."
Minutes kept by the Consultant for the Phase 1 meeting are appended to their Study
 78

report. No minutes of the two subsequent public meetings are appended to their Final
Draft of the July 2008 Plan. However, I understand from CTC representatives that they
were focused on "informing" the public, rather than "consulting" with the property
owners and other primary stakeholders.

The Sandwich HCD Study and Plan were prepared by the City's Consultants without any
meaningful participation of the many stakeholders whose property rights, land uses and
business interest will be most impacted if this HCD is designated under Part V of the
Ontario Heritage Act. In my opinion, this violates both the spirit and the intent of the
Act. Without the enthusiastic support of the stakeholders, no HCD can hope to
succeed."

67. On August 21, 2008, a meting of the Olde Sandwich Towne Citizen's Advisory Group
and Community Improvement Plan Steering Committee was held.

Now shown to me and marked as Exhibit 29 to this my affidavit is a copy of the minutes
of that meeting. The following statements, in part, were made at that meeting:
"2.3 Key Stakeholder Presentation

… P. Lombardi presents the Ambassador Bridge Enhancement PowerPoint

Presentation, attached as Appendix "A". In the presentation, the following facts are
noted:
…
• Green Buffer zone is planned for residential space between homes and
the plaza
• Old bridge will be available for emergency crossings and major events
• Subject to environmental process in Canada and the United States:

... P. Lombardi discusses the History of the Ambassador Bridge, noting that the
bridge is the busiest in North America, is a vital transportation link, has been a
part of Windsor's history for over 8 years and adds that since 9/11, security has
been greatly enhanced. S. Whelan notes "studentification" has occurred in
Windsor, a term now used to identify where students move into an area and
greatly affects the area, with limited funds, no historical interest in the area and
over 73 percent of the housing in the area has been retrofitted for student
housing. S. Whelan notes that this causes an exodus of families, and it is the
families that provide stability to a neighbourhood. S. Whelan also adds that the
Canadian Transit Company has bought up houses that have been student
housing and cannot be restored economically to conform to the Building Code.

P. Lombardi notes that the Bridge Company has been in contact with the
University of Windsor and St. Clair College about developing the Green
Corridor Model all the way to the river and has plans to present this to City
Council.
 79

… the Committee's concerns about: Committee's desire for a bridge downriver

…

S. Whelan notes that the December 2007 study shows the impact on the
environment, and that houses on Indian Road on the East side and some on the
West side would be removed for the Green Buffer zone to the River. S.
McMahon notes that in 1992 an announcement for a twin 2 x 4 lane bridge was
made and had support from the Mayor and Council but that the 9/11 crisis and
traffic growth changed that. …

General discussion ensues over:

…
• Housing on Indian Road, Edison Road and Bloomfield Road
• Traffic impact on the need for a second span
• Assumption Church - 13,000 trucks a day on the old steel bridge and
vibration on the current bridge versus new concrete bridge and vibrations
• Properties on Indian being purchased with intent of future tear-down by
Bridge Company
• Bridge is on the edge of Sandwich Towne
• Homes purchased on Edison and Bloomfield by Bridge Company …

… S. Whelan reports that the Bridge Company has been in confidential

negotiations with the Canadian Border Services and that the plaza more than
meets the needs of today and the foreseeable future. …

2.1 Target Areas Planning Issues Report and Supplemental Urban Design
Guidelines

… The Chair notes that residents are not willing to live across from boarded-up
houses and selling their homes. General discussion ensues over tearing down
homes and rebuilding affordable hoes and town homes. L. Piccioni reports that
there is a need for more information on the green buffer plan before any
decisions can be made. …

The Chair questions if the City could issue demolition permits with conditions.
Discussion ensues over the possible conditions and scenarios, and restoration of
homes. …"

Sandwich Towne Community Improvement Plan

68. In April, 2008, the "Olde Sandwich Towne Community Improvement Plan Background
Report" was completed.

69. Now shown to me and marked as Exhibit 30 to this my affidavit is a copy of that report,
 80

which contains, in part, the following:

"1.0 INTRODUCTION

1.1 Purpose

The purpose of this Background Report is to provide a well informed analytical

foundation for the preparation of three key reports for Olde Sandwich Towne, including
the:
1) Community Improvement Plan;
2) Target Areas Planning Issues Report; and
3) Supplemental Urban Design Guidelines and Streetscape Design Standards.

To this end, this report reviews and summarizes planning policies applicable to the Olde
Sandwich Town Community Improvement Project Area (the "Project Area"). This report
also documents physical and economic conditions in the Project Area in order to identify
opportunities and challenges to revitalization of Olde Sandwich Towne. The report
concludes by identifying the vision, goals and objectives for the CIP. These are largely
based on the analysis contained in this Background Report and the vision, strategies and
applicable recommendations contained in the Community Planning Study.

1.2 Community Improvement Project Area

By-Law No. 109-2007 was passed by City Council on June 11, 2007 to designate the
Olde Sandwich Towne Community Improvement Project Area. This area is shown in
Figure 1 and corresponds exactly to the Olde Sandwich Towne Community Planning
Study Area. This area is approximately 365 ha. (865 acres) and represents one of the
larger community improvement project areas in the province that is not specifically
designated to address contaminated land issues. The Project Area is also very diverse in
terms of land use and physical characteristics. Based on aerial photos, information
presented in the Community Planning study, and a walking/driving tour of the area, the
boundary of the Community Improvement Project Area adequately reflects the areas in
need of community improvement within Olde Sandwich Towne. Therefore, no
recommendations for adjustment to the boundary will be made during the course of
preparing the CIP. …
[pg. 1]

2.0 PROJECT AREA CHARACTERISTICS

2.1 Physical Characteristics

… The Community Planning Study also references a Crime Prevention through

Environmental Design (CPTED) Assessment of the Olde Sandwich Towne BIA Area that
was completed in 2005. … ongoing poor property maintenance contributes to a
reduction of natural surveillance. … result of lack of proper property maintenance,
building abandonment, and inappropriate commercial signage. …
[pg. 3]
 81

2.1.1 Target Area 1 - Commercial Core

As shown in Figure 1, Target Area 1 is an area three city blocks long by two city blocks
wide. Target Area 1 is bounded by Detroit Street to the north, Peter Street to the east,
Chippawa Street to the south, and Russell Street to the west. This area contains most of
the retail and commercial businesses in Olde Towne and functions as the commercial
core of the neighbourhood. …

The block between Mill Street and Brock Street contains several designated heritage
buildings as well as a number of properties on the Windsor Heritage Inventory. …
[pg. 3 & 5]

2.1.2 Target Area 2 - Waterfront

… The Port of Windsor is a full service waterfront port.

… There is also a large vacant privately owned property and a vacant City owned lot on
the west side of Russell Avenue across from the Duff Baby House. These lands present
an opportunity for development and public access to the waterfront that will improve the
appearance and image of this area.
[pg. 7 & 9]

2.1.3 Target Area 3 - Remainder of Olde Sandwich Towne Project Area

… No less than 60 houses on and near Indian Road have been boarded up. This action
has had a significant negative visual and activity impact on this residential area. There
is no doubt that the vacancy and boarding up of these houses has and will continue to
negatively impact the stability of the residential area around these boarded up houses as
a residential neighbourhood.

There is a wide variety of housing types and tenures in Project Area 3. For example,
house in the Rosedale Area, many of which were built in the early 1900's to the 1920's,
are notable for their architectural character and high level of building maintenance,
property maintenance and landscaping. The Rosedale enclave is in fairly close
proximity to the boarded up houses on Indian Road.

Similar to Indian Road, there are a number of boarded up houses on Edison Street.
There are a number of low rise and high rise apartment buildings along Peter Street …

As noted in the Community Planning Study, the poor condition of the housing stock in
much of the Project Area (and particularly much of Target Area 3) is a major concern.
Heading south through Target Area 3, the condition of the housing starts to deteriorate.
As one heads towards Bradley Park, there are a number single detached houses,
duplexes and small apartments in poor condition. These properties are clearly not being
 82

maintained. There are also some mixed use (commercial/residential) properties in this
area that are in poor conditions.

… housing in this area is more affordable than other parts of Windsor. A large number
of university students also rent houses and apartments in Olde Sandwich Towne due to
the proximity to the University. This means that a much lower percentage of the houses
in the Project Area are owner occupied as compared to the city as whole. As detailed in
Section 2.3, median income levels in the Project Area are also lower than the city as a
whole. these factors combine to impact on the ability of residents in Target Area 3 to
undertake even basic dwelling and property maintenance, as well as repairs and
improvements. The deteriorated condition of many houses in the Target Area acts as a
further disincentive or residential reinvestment. This combination of factors and the
condition of housing in Target Area 3 points to the possible need for a residential
rehabilitation incentive program.

… These underutilized and vacant lands are identified in Figure 13 of he Community

Planning Study. This large linear strip of land between Russell Street and the rear of
properties fronting onto Sandwich Street is clearly an area of major planning concern.
…
[pgs. 9, 10, 11, 12, 15]

2.2 Development Activity

As part of the Heritage Conservation District Study, a general analysis of development

activity in the Olde Sandwich Towne Area was undertaken over the last five years. This
analysis looked at Official Plan and Zoning By-aw amendments, site plan applications,
building permits and demolition permits. Between 2002 and 2006, there were a total of
14 new building constructed in the Heritage Conservation District Study Area which
extends farther ease than the Project Area, but not as far south. During the same period,
there were 20 buildings demolished. Approximately half of the zoning applications were
related to student housing.

… there appears to have been little building reinvestment or new building construction in
any of the Target Areas Olde Sandwich Towne over the last number of years. …
[pg. 16]

2.3 Socio-economic Characteristics

2.3.1 Population

Approximately 7,050 people or 34% of Windsor's population live in Olde Sandwich

Towne (2001 Canada Census). However, the proportion of the total population aged 20
to 24 is about twice as much (14.6%) in Olde Sandwich Towne as compared to the city as
whole (7.4%). This is reflective of the close proximity of Olde Sandwich Towne to
Windsor University. At 29.7 years, the median age in Olde Sandwich Towne is also
much lower than the city as whole (36 years).
[pg. 16]
 83

2.3.2 Dwellings

Only 27% of the dwelling units in Olde Sandwich Towne are owner occupied. …
contrast to Windsor where 65% of dwelling units are owner occupied. Again, this
number can be attributed to the number of University of Windsor students who live in off-
campus housing in Olde Sandwich Towne.
[pg. 16]

2.3.3 Income

The average household income in the Project Area in 2001 was $33,995. This is 42%
less than the $58,360 average income for Windsor.

The demographic analysis of Olde Sandwich Towne reveals it to be a community with a

young transient population (reflective of university student) that has much lower than
average incomes. Dwellings in Olde Sandwich Towne have a lower average value than
in other parts of the city and are largely occupied by renters and not owners. These
factors combine to help explain the poor condition and appearance of buildings and
properties in the Project Area. Areas with absentee landlords, lower than average
incomes and housing values are apt to experience lower levels of property maintenance,
improvement and investment.
[pg. 17]

3.3 Opportunities and Challenges

… with a dozen heritage buildings designated under Part IV of the Ontario Heritage Act
and several other buildings on Windsor's Heritage Inventory, Olde Sandwich Towne
contains a fine collection of prominent heritage buildings in a main street setting. …

…The Ambassador Bridge creates real and perceived barriers between Olde Sandwich
Towne and neighbourhoods to the east and the CIP can seek to overcome these barriers
by investigating actions and recommendations that create stronger neighbourhood
connections.

…One of the key weaknesses identified in the Community Planning Study and the
Heritage Conservation District Study is the appearance of commercial and residential
buildings in Olde Sandwich Towne. The number of buildings and properties in poor
condition is significant, as is the degree of building and property deterioration. …
[pg. 20 - 21]

4.0 LEGISLATIVE AUTHORITY AND POLICY FRAMEWORK

…the report identifies the key policy directions contained in these policy documents that
 84

are relevant to preparation of the Olde Sandwich Towne CIP. …

[pg. 23]

4.2 Section 28 - Planning Act

Section 28 of the Planning Act allows municipalities with provisions in their official
plans relating to community improvement to designate by by-law a "community
improvement project area" and prepare and adopt a community improvement plan for
the community improvement project area. Once the community improvement plan has
been adopted by the municipality and comes into effect, the municipality may exercise
authority under Section 28(6), (7) or &.2) of the Planning Act or Section 365.1 of the
Municipal Act, 2001 in order that the exception provided for in Section 106(3) of the
Municipal Act, 2001 will apply.

According to Section 28(1) of the Planning Act, a "community improvement project

area" is defined as "a municipality or an area within a municipality, the community
improvement of which in the opinion of the council is desirable because of age,
dilapidation, overcrowding, faulty arrangement, unsuitability of buildings or for any
other environmental, social or community economic development reason".

According to Section 28(1) of the Planning Act, a "community improvement project

area" is defined as "a municipality or an area within a municipality, the community
improvement of which in the opinion of the council is desireable because of age,
dilapidation, overcrowding, faulty arrangement, unsuitability of buildings or for any
other environmental, social or community economic development reason".

Section 28(1) of the Planning Act defines "community improvement" as "the planning or
replanning, design or redesign, resubdivision, clearance, development or
redevelopment, construction, reconstruction and rehabilitation, improvement of energy
efficiency, or any of them, of a community improvement project area, and the provision
of such residential, commercial, industrial, public, recreational, institutional, religious,
charitable, or other uses buildings, structures, works improvements or facilities, or
spaces therefore, as my be appropriate or necessary".

Once a CIP has come into effect, the municipality may:

i) acquire, hold, clear, grade or otherwise prepare land for community

improvement (Section 28(3) of the Planning Act);

ii) construct, repair, rehabilitate or improve buildings on land acquired or held by

it in conformity with the community improvement plan (Section 28(6));

iii) sell, lease, or otherwise dispose of any land and buildings acquired or held by it
in conformity with the community improvement plan (Section 28(6)); and

iv) make grants or loans, in conformity with the community improvement plan, to
registered owners, assessed owners and tenants of land and buildings within the
 85

community improvement project area, and to any person to whom such an owner or
tenant has assigned the right to receive a grant or loan, to pay for the whole or any part
of the eligible costs of the community improvement plan (Section 28(7)).
[pg. 24 - 25]

4.3 Ontario Heritage Act

…One of the disadvantages of the Ontario Heritage Act is that unlike the Planning Act, it
does not allow municipalities to make grants or loans to assignees, e.g. tenants who may
wish to undertake heritage improvements.
[pg. 25]

4.4 Provincial Policy Statement 2005

… Provincial Policy Statement in 2005 (PPS 2005). …

[pg. 26]
 86

4.14 Interim Control By-Law

An Interim Control By-Law was passed on January 29, 2007 for Olde Sandwich Towne.
This By-Law was approved to prohibit the use of land, buildings or structures within the
Sandwich area, except as may be set out in the by-law while the City is completing the
CIP. Windsor City Council recently extended the Interim Control By-Law until January
29, 2009 in order to allow for the completion and adoption of a Community Improvement
Plan the Olde Sandwich Towne Community Improvement Project Area.

4.15 Demolition Control By-Law

Demolition Control By-Law was passed on January 29, 2007 for Olde Sandwich Towne.
This By-Law was approved to ensure that all requests for demolition of a dwelling or
dwelling unit requires the permission of Council before a demolition permit is issued by
the Chief Building Official."
[pg. 43]

Stantec Rebuttal to N. K. Becker Reports

70. By letter dated September 8, 2008, Stantec Consulting Ltd. provided a letter to the
Windsor Heritage Committee. This letter attempted to address some of the objections raised in
the Becker Report of August 18, 2008.

71. Now shown to me and marked as Exhibit 31 to this my affidavit is a copy of the Stantec
letter. The following statements are made by Stantec in its reply:
"… to fully comprehend the team's rationale for the recommended boundary, it is
important for the Committee to consider all the information presented in both the Phase
Study and the Phase 2 Plan. Jointly, these two reports provide a comprehensive analysis
of the Sandwich district. Phase 1 includes information relevant to Sandwich's history,
architecture, socio-economic climate, existing planning context and initial
recommendations. Phase 2 refines and rationalizes the recommended boundary and
establishes recommended policies and architectural and conservation guidelines for the
District.

… the lawyers and the consultant for the bridge company have provided documentation
that casts some doubt on information provided by our team of consultants. …

… Norm Becker, P.Eng., Paul Lombardi on August 18, 2008 … 1. General, 2.

Evaluation, 3. Delineation and 4. Participation … While these ingredients highlight the
Board's determination for a successful HCD, the City of Windsor and the Ministry of
Culture have previously established criteria for the creation of a Heritage Conservation
District. Phase 1 and Phase 2 of the Sandwich Heritage Conservation District Study and
Plan clearly address each of the components established by the OMB as well as the
 87

criteria set out in the City of Windsor's Official Plan for the creation of a heritage
conservation district and in the Ontario Heritage Act. …

Dr. Becker's primary concern relates to the process by which the boundary was
established, The Terms of Reference for he Sandwich HCD (Appendix A of he Study)
direct the study team to look at a large swath of present day Windsor containing over
4000 occupied dwellings and to identify properties significant to the development,
architecturally and historically, of the study area.

It is important to note that the outline of the study area does not correspond exactly to
any of the following historic boundaries: the two plot of Sandwich, the Huron Church
Reserve, the Township of Sandwich or the incorporated Town of Sandwich. It does not
include industrial sites along the Detroit River, high-rises, national, provincial and local
historic sites, several commercial strips and many residential neighbourhoods containing
housing from a variety of eras.

It was determined during the initial study phase that within the study area, buildings
could be found to represent all periods of Sandwich's history from its designation as the
district seat in 1797 to the end of its life as an incorporated municipality in 1935. A
boundary was proposed that would encompass the best examples of these buildings in
order to make it possible to interpret the entire history of Sandwich within the proposed
HCD. …

2. EVALUATION

… It did not grow beyond the confines of a modest district/county town until a growing
population in nearby Windsor began to spill over into the community beginning in WWI.
…

5. The industrialization of Sandwich

The main impact on Sandwich of the industrialization of Windsor (and Detroit)
was to add considerably to its housing stock especially between WWI and 1929.
This is the main argument for the inclusion of the residential area north of the
commercial core: that it represents the boom experienced by Sandwich in the
years before the Depression. Housing from this period services in other parts of
Sandwich; however, the recommended HCD contains the best examples from this
era.

8. Historical properties missing from Figure 4

… while they were not in the study area the Ambassador Bridge and Assumption
Church, College and Cemetery are all listed on Windsor's Heritage Properties
Inventory.

9. Lack of information on Sandwich's recent history

Sandwich's existence as a separate municipality came to an end in 1935. It was
determined that the historic identity of the community should be reinforced by
the HCD and therefore structures built after 1935 were not examined. …

3. DELINEATION
 88

1. Boundary delineation does not adhere to previous City documents

The Ontario Heritage Tool kit identifies the criteria for determining a boundary
be based on:
a. Historic factors and/or
b. Visual factors and/or
c. Physical features and/or
d. Legal or planning factors.

It is intention of this HCD study and plan to delineate a defendable boundary

based on the Phase 1 and Phase 2 research. …

In reviewing Mill Park with respect to the criteria for designation, it was
concluded that the parcel of land on the west side of Russell St. north of Mill
Street should not be included in the district boundary. All of the buildings on the
east side of Russell Street were excluded from the district for architectural
reasons. The fact that the parcel is not part of a contiguous streetscape, in
addition to the lack of significant heritage attributes with respect to landscape
features led the team to conclude that the area should not be included within the
district boundary.

With respect to McKee Park, many of the same criteria apply. Just as with Mil
Park, the lack of significant heritage attributes associated with landscapes and
open space, vegetation patterns and historical association led the team to
conclude that the area should not be included within the district boundary.

A key part of the waterfront adjacent to the Duff-Baby House is part of the HCD.
McKee and Mill Parks are already in the public realm and are not perceived as
requiring protection from future development.

5. The inclusions of post 1920s houses on Indian Road

Historically the lands from Huron Church Road, south of Detroit Street saw
extensive development in the period between 1914 and 1929. …registered plans
of one to two blocks each. …

The historical evolution of Sandwich cannot be illustrated within the confines of

one part of the original town site. The study area includes lots surveyed before
1790 and thus offers the opportunity to reflect the larger footprint Sandwich
once had. It is essential that part of a French era farm be included in the HCD
in order to represent the community that existed before 1790 and those farms
that once made up a large part of the community in the latter half of the 19th
century. …

8. Indian Road option and public open space

The options provided in Section 4.8 were developed following a meeting with the
lawyers representing the bridge company. The intention of these options is to
provide Council with the opportunity to have flexibility when dealing with the
properties on the east side of Indian Road. Although the options provided are
outside of the preservation mandate of this report, it has been recognized that
 89

Indian Road is unique and therefore deserving of special attention. The

recommendation for a public open space along this area if the properties on the
east side are removed would provide the potential for a community enhancement
area that could be used as a passive recreation for the residents of Sandwich and
the City as a whole.

10. Architectural merit of Indian Road

An argument cannot be made that the east side of Indian Road should be
included in the HCD solely on the architectural integrity of the built form. No
property has been identified that meets the individual designation as described in
Part IV of the Heritage Act. However, as a whole, the built form on the east side
of Indian Road is representative of the 1920's subdivision housing stock in the
Rosedale/Alexander area and reinforces the character of that neighbourhood
district.

Furthermore, the HCD under Part V of the Heritage Act takes into consideration
all contributing layers including historical boundaries, architectural built form,
streetscape elements, and zoning. Combined, it is the integrity of these layers as
a whole that justifies the inclusion of the east side of Indian Road as part of the
Heritage Conservation District. …

4. PARTICIPATION

Dr. Becker's letter questions the intent of the public participation component of the study
stating the sessions lacked meaningful participation and the process was conducted
within a vacuum. Both Ms Lombardi and Ms Whelan also weighed in on this issue at the
Committee meeting.

During both phases of the Sandwich Heritage Conservation District, our team engaged
the City, the Steering Committee and the public through various meetings and open
houses to disseminate information, to ascertain the public's concerns and to answer
questions. The meetings held to date are as follows:

Phase 1 Phase 2

Public Meeting 1 January 25, 2007 Public Meeting 1 December 6, 2007

Public Meeting 2 April 28, 2007 Public Meeting 2 April 3, 2008
WHC Meeting May 9, 2007 WHC Meeting August 13, 2008
Council Meeting July 16, 2007

A comment was made at the meeting by the representatives for the bridge company
stating the timelines and requirements for public meetings were not consistent with those
set out in the Planning Act. It should be noted that the process for studying and
designating a heritage conservation district is not guided by the Planning Act. The
process for this is governed by the Ontario Heritage Act and the timelines and
requirements for public meetings are detailed below. The process we continue to follow
is consistent with this Act. …

The Final Draft Plan was made available to the public in late July, prior to the Windsor
 90

Heritage Committee meeting on August 13, 2008. As well a draft of the plan has been
available to the public since December, 2007.

Consultation with the Windsor Heritage Committee first took place on August 13, 2008,
with another meeting scheduled for September 10, 2008.

The public meeting required under the Heritage Act will take place at a later date with
Windsor City Council, and will comply with the requirements under the Heritage Act.

Ms Whelan and Ms. Lombardi provided comments suggesting they have not been
contacted to discuss their interest in the HCD process nor have they been made aware of
public meetings. Our records indicate representatives of the Bridge company have been
in attendance at public meetings since April 28, 2007. They also failed to mention that in
April 2008, Ms Whelan, and Ms. Lombardi met with members of the consultant team and
City of Windsor staff in the London office of Stantec Consulting Ltd. to discuss the HCD.
At this lengthy meeting, both sides presented their position on the boundary of the HCD.
As a result of this meeting, changes were made to the report to include the special
provisions section on Indian Road (Section 4.8). This section provides the Municipality
with flexibility when dealing with properties on the east side of Indian Road. As
expressed by one Committee Member at the meeting, Options 3 and 4 seem to fulfill the
needs expressed by the representatives for the bridge company. If Council decides in
favour of either of these options, the east side of Indian Road would result in a positive
outcome for the bridge company. …

… June 2007, actually indicates the completion date of Phase 1. Our work on Phase 1 of
the project began in August 2006 when Council awarded the contract to our consulting
team. Between August 2006 and June 2007, our team conducted research, reviewed
documents provided by the City of Windsor, held public meetings and prepared the draft
and final documents for presentation to Council in July 2007. …

At the WHC meeting, Ms. Whelan and Dr. Becker provided a slideshow illustrating the
interiors and exteriors of houses along Indian Road. Of the approximately 100 houses
shown, about 50% are properties which are outside the recommended HCD boundary.
Ms. Whelan indicated that invitations were extended to have the interior of the homes on
Indian Road inspected yet these invitations were not followed up by the project team.
The designation of a heritage conservation district does not extend into the interiors of
the buildings. … Part V designations are concerned with the natural, historic, aesthetic,
architectural, scenic, scientific, cultural, social or spiritual values contained of the
buildings, landscape and streetscape of an area …

… Ms Lombardi indicates public information sessions were used solely to disseminate

information and comments received were disregarded and ignored. .. At each public
meeting, detailed notes of questions and concerns were taken. Questionnaires were
distributed and collected and comments recorded. In each phase of the project, these
comments were tabulated and reviewed. These comments provided the project team with
insights into the history and culture of the area. Comments and concerns were noted and
when necessary, the information was added to the plan and guidelines. …

… During the July 2007 Council meeting, the recommendation to proceed with Phase 2
 91

to create the necessary policies and guidelines for the Sandwich heritage Conservation
District was adopted. At this meeting Ms Zunti indicated that Indian Road was being
considered for its future landscape potential. As the study team proceeded through the
second phase of the HCD process, it was determined that the houses along Indian Road
presented a unique component of the cultural history of the area as described earlier in
this letter Because the area was identified as requiring further investigation at the
council meeting noted above, its inclusion in the final recommended boundary is wholly
justified.

… within the recommended HCD boundary, areas can be added or withdrawn as

information is provided. Changes were made to the Phase 1 Preliminary Recommended
Boundary (Sandwich HCD Plan Figure 2) to create the Phase 2 Recommended
Boundary (Sandwich HCD Plan Figure 3). These changes included the addition of the
east side of Indian Road between Donnelly street and University Avenue and the addition
of lands west of Russell between Mill Street and Brock Street. …

…In our report, the addition of lands along the waterfront is intended to secure an
unobstructed view to the Detroit River from Duff-Baby House, the only original house
with an orientation to the river.

At the July 2007 Council meeting, Dr. Norm Becker addressed Council and presented a
number of issues for inclusion in he second phase of the Sandwich HCD plan. …"

Olde Sandwich Towne Community Improvement Plan Target Areas

71. In October 2008, a document entitled "Olde Sandwich Towne Community Improvement
Plan Target Areas Planning Issues Report" was completed by RCI Consulting for the City.

72. Now shown to me and marked as Exhibit 32 to this my affidavit is a copy of that
document. The following excerpts are taken from that document:
"1.0 INTRODUCTION

1.1 Purpose

The purpose of this Target Areas Planning Issues Report is to examine a number of key
planning issues in each of the three target areas in the Olde Sandwich Towne Community
Improvement Project Area (see Figure 1). These planning issues relate directly to the
nature and role played by each target area in Olde Sandwich Towne. … Finally, the
remainder of the Olde Sandwich Towne Project Area (Target Area 3) is predominantly
residential in sue. The planning issues in Target Area 3 relate to fostering a stable
residential neighbourhood and preparing an open space strategy that will improve the
open space system in Olde Sandwich Towne.
[pg. 1]
 92

4.0 TARGET AREA 3 - REMAINDER OF OLDE SANDWICH TOWNE

PROJECT AREA

4.1 Policies to Foster Stable Residential Neighbourhoods

Target Area 3 has a variety of housing types and tenures. This includes housing for a
large proportion of University of Windsor students living off campus. Target area 3 also
includes at least 60 residential properties along the Indian Road corridor near the
Ambassador Bridge and in the Edison Street area that have been boarded up. Therefore,
form a residential perspective, Target area 3 has become more transitory in nature.

The Background Report documented the condition of the housing stock in parts of Target
Area 3 as a major concern. This has begun to impact on the stability of the area as a
residential neighbourhood. This section of the report examines possible strategies that
could help stabilize the residential neighbourhoods in Target area 3 over time and
improve the overall condition of the housing stock in this area. Notwithstanding the
policy measures outlined in this section of the report, if the residential properties that
have been boarded up on Target Area 3 persist or increase in number over an extended
period of time, this will serve to further destabilize the residential neighbourhoods in
Olde Sandwich Towne and this will have detrimental physical and social impacts on the
Olde Sandwich community as a whole.

4.1.1 Demolition Control

Maintaining and enhancing the supply and quality of residential units in Sandwich
Towne is seen as a key ingredient to revitalization of the entire area. A Demolition
Control By-Law was passed on January 29, 2007 for Olde Sandwich Towne. This By-
Law was approved to ensure that all requests for demolition of a dwelling or dwelling
unit require the permission of Council before a demolition permit is issued by the Chief
Building Official. An Interim Control By-law is also in place in Olde Sandwich Towne
until January 28, 2009 in order to allow for the completion and adoption of the CIP for
Olde Sandwich Towne.

On April 14, 2008, the City of Windsor Council approved a process for exemptions to the
Demolition Control By-law. This process allows City staff to review and process
requests for demolition and building permits in Olde Sandwich Towne on a case-by-case
basis, with only those applications for demolition or building permit that are consistent
with the intent of the Interim Control By-law being recommended to Council for
approval. It is recommended that the City continue the existing Demolition Control
By-law and process for processing exemption requests for at least one year after the
Olde Sandwich Towne CIP is approved in order to allow time for the CIP to be
implemented and begin to take effect. The need for continuation of the Demolition
Control By-law could then be evaluated one year after the CIP has been approved. This
will help to ensure that boarded up residential dwellings in Target Area 3 are not
demolished unless a replacement use had been proposed and approved.

We recognize that the Interim Control By-Law expires on January 28, 2009, and cannot
 93

be further extended. We also recognize that the provisions of s. 33(7) of the Planning Act
are essentially ineffective for ensuring that a replacement use or structure is built at all
or in a timely way as the maximum penalty provided is $20,000 for each dwelling unit
which is the subject of demolition. Therefore, it is recommended that the City explore
steps it may be able to take under other provisions of the Planning Act, the Municipal
Act or the Heritage Act or if necessary obtain special legislation, to ensure that the City
can refuse a demolition permit except under conditions which can effectively ensure,
e.g. by provision of a bond, that a replacement use or building which respects the
characteristics/features of the area is built in a timely way.

4.1.2 Enhanced Enforcement of Property Standards

Enforcement of the City's property standards in a consistent manner is key to

demonstrating to the public, residents, businesses and potential investors that the
municipality is focused on maintaining and creating a viable, healthy neighbourhood.
This principle has led to enhanced property by-law enforcement programs in
municipalities such as Owen Sound and Kingston. Based on visual observation of Target
Area 3, it is recommended that enforcement of the property standards by-law in Target
Area 3, particularly in regards to issues of "blight" such as outside storage, be
improved to result in a tidier appearance in the area.
[pgs. 22 - 23]

Sandwich Town Community Improvement Plan Completed

73. In November 2008, a Draft "Olde Sandwich Towne Community Improvement Plan" was
completed.

74. Now shown to me and marked as Exhibit 33 to this my affidavit, is a copy of that
document. The following are excerpts taken from that report:
"1.0 CONTEXT AND BACKGROUND

1.1 Original of the CIP

The City of Windsor retained RCI Consulting in association with GSP Group Inc. to
assist in the preparation of a Community Improvement Plan (CIP) for Olde Sandwich
Towne (OST). The origin of the CIP can be found in the Community Planning Study
(CPS) for OST. The CPS was initiated in response to the general decline in the fabric of
the Sandwich neighbourhood over many years. The CPS was adopted by City of
Windsor Council in October of 2006 as the City's guide to future planning, capital
budgeting and community improvement efforts in OST.

The CPS contains the following Vision: "Olde Sandwich Towne is a vibrant waterfront
community" and a series of strategies, actions and 29 recommendations designed to
 94

achieve this Vision. One of the key recommendations of the CPS is that the CPS Area be
designated a Community Improvement Project Area and a CIP be prepared for this area.
This CIP fulfills this recommendation from the CPS. The CPS provides a significant
amount of direction to the CIP and therefore forms the foundation of the CIP.
[pg. 1]

1.2 Plan Purpose

… The preparation of this CIP was also guided by a comprehensive public consultation
process as well as several meetings with and feedback from the OST Citizens Advisory
Group (AG)/CIP Steering Committee. The consulting team worked closely with the CAG
and City staff to ensure that this CIP, the Target Areas Planning Issues Report and the
Supplemental Development and Urban Design Guidelines will address the critical
community improvement needs identified in OST, thereby helping to achieve the Vision
for OST.
[pg. 1 - 2]

3.0 PROJECT AREA CHARACTERISTICS

… The analysis of physical and socio-economic characteristics summarized in this

section divides the Project Area into three target areas loosely based on the target areas
identified in the CPS. However, the boundaries of the target areas presented herein are
more defined than those in the CPS. …
[pg. 13]

3.1 Physical Characteristics

3.1.1 Target Area 1 - Commercial Care

As shown in Figure 1, Target Area 1 is an area three city blocks long by two city blocks
wide. Target Area 1 is bounded by Detroit Street to the north, Peter Street to the east,
Chippawa Street to the south, and Russell Street to the west. This area contains most of
the retail and commercial businesses in OST and functions as the commercial core of the
neighbourhood. …
[pg. 13]

3.1.3 Target Area 3 - Remainder of Olde Sandwich Towne Project Area

Target Area 3 is the balance of the Project Area outside the commercial core (Target
Area 1) and the Industrial Port Lands (Target Area 2). Target Area 3 comprises a large
part of the Project Area and contains a range of uses. This includes residential,
institutional, commercial and industrial uses. …
 95

Numerous houses on and near Indian Road have been boarded up. This action has had a
significant negative visual and activity impact on this residential area. There is no doubt
that the vacancy and boarding up of these houses has and will continue to negatively
impact the stability of the residential area around these boarded up houses as a
residential neighbourhood.

There is a wide variety of housing types and tenures in Target Area 3. For example,
houses on Rosedale Avenue, many of which were built in the early 1900's to the 1920's,
are notable for their architectural character and high level of building maintenance,
property maintenance and landscaping. The Rosedale enclave is in fairly close
proximity to the boarded up houses on Indian Road.

Similar to Indian Road, there are a number of boarded up houses on Edison Street. …

As noted in the Community Planning Study, the poor condition of the housing stock in
much of the Project Area (and particularly much of Target Area 3) is a major concern.
Heading south through Target Area 3, the condition of the housing starts to deteriorate.
… Bradley Park, there are a number of single detached houses, duplexes and small
apartments in poor condition. These properties are clearly not being maintained. There
are also some mixed use (commercial/residential) properties in this area that are in poor
condition.

Olde Sandwich Towne is comprised of older residential neighbourhoods. Generally,

housing in this area is more affordable than other parts of Windsor. A large number of
university students also rent houses and apartments in Olde Sandwich Towne due to the
proximity to the University. This means that a much lower percentage of the houses in
the Project Area are owner occupied as compared to the city as whole. Median income
levels in the Project Area are also lower than the city as a whole. These factors combine
to impact on the ability of residents in Target Area 3 to undertake repairs and
improvements to their homes. The deteriorated condition of many houses in Target Area
3 acts as a further disincentive for residential reinvestment.
[pgs. 17 - 19]

4.2 Top Weaknesses

…Appearance of the Community

- Derelict building facades
- Lack of property and building maintenance and upkeep
- Boarded up storefronts/homes
- Vacant and underutilized buildings
- Vacant lots
- Poor condition of come housing in the neighbourhood (single detached, duplexes,
triplexes and apartment buildings) …
[pg. 25]
 96

7.0 COMMUNITY CONSULTATION

A comprehensive community consultation program was undertaken during the

preparation of the OST CIP. This community consultation program was based on a
Communications Plan approved by City staff. This Communications Plan used as its
foundation, the extensive public consultation exercise conducted by the City for the OST
CPS. The CIP consultation program focused directly on obtaining input and feedback
from key stakeholders and the public on policies, programs and municipal leadership
strategies proposed for inclusion in the CIP

7.1 Olde Sandwich Towne Community Advisory Group (CAG)/CIP Steering

Committee

The role of the OST Citizens Advisory Group (CAG) is to represent the interests of the
Task Force that developed the CPS as the CPS is implemented by providing ongoing
input and comment to the City on implementation of the CPS. On August 13, 2007,
Council approved the mandate and membership for the OST CAG. On October 29,
2007, Council's Striking Committee appointed members of the OST CAG.

The OST CAG along with the Ward 2 city Councilors make up the OST CIP Steering
Committee (see Appendix B for a list of OST CIP Steering Committee members). The
consultant met several times with the OST CIP Steering Committee during preparation of
the CIP. …
[pg. 33]

7.2 Public Meetings

Three public meetings including a final formal public meeting under the Planning Act
were held during the course of preparing the OST CIP. The first public meeting was
held on June 25, 2008 at Mackenzie Hall which is centrally located in OST at 3277
Sandwich Street. This public meeting was advertised via placing of a notice of public
meeting in the Windsor Start, the mailing of invitations to key stakeholders and posting
of a notice of public meeting on the City's web site. Approximately 45 members of the
public were in attendance at the first public meeting.

The purpose of the first public meeting was to present and obtain comment on the vision
and goals for the CIP, the preliminary planning recommendations contained in the Draft
Target Areas Planning Issues Report and the preliminary Draft Supplemental Urban
Design Guidelines. The format of the first public meeting was an open house followed by
a formal presentation by the consultants. Following the presentation by the consultants,
those in attendance at the public meeting were provided with an opportunity to ask
questions of the consultant team and provide verbal comments on the materials
presented.

Furthermore, comment sheets were made available to those in attendance. Completed

comments sheets could be submitted to the City at the public meeting or by any of a
variety of means (regular mail, 3-mail, facsimile, 311, or in person). Seventeen (17)
 97

comment sheets and one (1) comment letter were received following the meeting were
reviewed, analyzed and utilized to assist the consulting team in finalizing the Target
Areas Planning Issues Report and the Supplemental Development and Urban Design
Guidelines.

The second public meeting was held on October 15, 2008 at Mackenzie Hall. This public
meeting was advertised in a similar fashion to the first public meeting. Approximately 19
members of the public were in attendance at the second public meeting. The purpose of
the second public meeting was to present and obtain comment on the proposed financial
incentive programs and municipal leadership strategy and actions. The format of the
second public meeting was similar to the first public meeting, i.e., an open house
followed by a formal presentation by the consultants. Following the presentation by the
consultants, those in attendance at the public meeting were provided with an opportunity
to ask questions of the consultant team and provide verbal comments on the materials
presented.

Comment sheets were again made available at the public meeting. Three (3) comment
sheets were received following the meeting. These comment sheets along with verbal
comments received at the meeting were reviewed, analyzed and utilized to assist the
consulting team in finalizing the financial incentive programs and municipal leadership
strategy. …
[pgs. 33 - 34]

7.3 Key Stakeholder Meetings

Meetings were organized with representatives from the following key stakeholder
groups:

The Windsor Port Authority (WPA) …

The Olde Sandwich Towne Business Improvement Area (BIA) …

The Canadian Transit Corporation (CTC) - the consultants and Planning Department
met with the CTC on two occasions to discuss the CIP and CTC's proposal for properties
they owned in the CIP area with respect to their enhancement project and the green
corridor project. The Planning Department ahs also corresponded with the CTC via
email and letters regarding the CIP process. At the CTC's request, CTC representatives
were invited to the August 21, 2008, meeting of the OST CAG/CICP Steering Committee
to make a presentation regarding their proposal.
[pg. 34]

8.0 TARGET AREAS PLANNING RECOMMENDATIONS

… The Target Areas Planning Issues Report examines a number of key planning issues
as identified by the City (through the CPS process) in each of the three target areas. …
the remainder of the Olde Sandwich Towne Project Area (Target Area 3) is
 98

predominantly residential in use. Therefore, the planning recommendations in Target

Area 3 relate to fostering a stable residential neighbourhood and preparing an open
space strategy what will improve the open space system in Olde Sandwich Towne. …
[pg. 35]

8.3 Target Area 3 - Remainder of Olde Sandwich Towne Project Area

8.3.1 Policies to Foster Stable Residential Neighbourhoods

It is recommended that the:

37. City continue the existing Demolition Control By-law and process for processing
exemption requests for at least one year after the OST CIP is approved in order to allow
time for the CIP to be implemented and begin to take effect.

38. City explore steps it may be able to take under other provisions of the Planning
Act, the Municipal Act or the Heritage Act or if necessary obtain special legislation, to
ensure that the City can refuse a demolition permit except under conditions which can
effectively ensure that a replacement use or building which respects the
characteristics/features of the area is built in a timely way.

39. City enhance enforcement of the property standards by-law in Target Area 3,
particularly in regards to issues of 'blight' such as outside storage. This
recommendation includes the hiring of additional by-law inspection staff for this
purpose.
[pg. 38]

8.4 Ambassador Bridge Expansion Proposal

Canadian Transit Company (CTC) is proposing to twin the Ambassador Bridge with a
new structure located south of and parallel to the existing Ambassador Bridge. The new
structure will be situated approximately 100 feet at its centre line from the centre line of
the existing bridge and require some of the land on the north side of Indian Road to
accommodate the bridge. Proposals to expand the bridge have been ongoing since 1992
(see Figure 3). The CTC has acquired property south of the existing bridge to
accommodate this proposed expansion and to address stated concerns about safety and
security of the existing and new bridge structure.

The proposed twinning of the bridge is subject to environmental assessment (EA)

processes both in Canada and the U.S. These processes have not yet been completed in
either country. Once the EA processes have been successfully completed, CTC must then
obtain federal permits from both countries for the proposed bridge. Although CTC has
indicated it has received approvals for the bridge expansion required under Michigan
laws, the major U.S. federal approval required, from the U.S. Coast Guard, is still
outstanding. Also, the proposed twinned bridge must receive approvals form the City of
Windsor.*
 99

* All information on the status of the Environmental Assessment Process in both Canada and the
Untied States was supplied by the City of Windsor.
[pg. 40]

8.4.1 Existing Conditions

The Ambassador Bridge is privately held piece of infrastructure. Except for the
municipal roads right-of-ways, the CTC also owns the property underneath the bridge
and a strip of land immediately south of the bridge which is currently used as a parking
lot by the University of Windsor. The Customs Plaza at the east end of the bridge was
recently expanded. The Canadian Border Services Agency has informed the CTC and
the City that a much larger inspection plaza is required to accommodate both the current
and proposed new bridge operations. One area being contemplated for these facilities is
the residential land to the south of the current bridge.

The CTC has acquired virtually all of the houses on the north side of Indian Road which
back on to the Ambassador Bridge and the Customs Plaza. It has also acquired several
properties on the south side of Indian Road. The majority of the houses purchased by the
CTC along Indian Road are unoccupied and have been boarded up for security reasons.
As well, the CTC has purchased and boarded up a number of houses in the area of
Edison Street. The boarded up houses along Indian Road and Edison Street have not
been demolished by the CTC. A Demolition Control By-Law was passed to ensure that
buildings are not demolished, which could have the effect of destabilizing inherent
features such as heritage buildings, the neighbourhood(s), community, and the functions
and characteristics of existing buildings. An Interim Control By-law is in place for Olde
Sandwich Towne to prohibit the use of land, buildings or structures within the Sandwich
area, except as may be set out in the by-law, while the City is completing a CIP. The
OST CIP qualifies as the study of land use planning policies in the municipality with
respect to the passing of the Interim Control By-law, consistent with Section 38(1) of the
Planning Act. A process was approved by Council allowing exemptions from the Interim
Control-By-law based on reasonable requests, subject to Council approval.

The conditions of these abandoned and boarded up houses along the entire north side of
Indian Road, and around Edison Street has had a de-stabilizing effect on the
neighbourhood. The issue of addressing this blight by removing or restoring these
houses was consistently raised at public meetings held for the Olde Sandwich Towne CIP
and reinforced by comments made in the local media by members of the public.

The current conditions with a row of some 60 plus boarded up houses has generated
instability in the neighbourhood. While many of the houses appear to be in reasonable
condition on the exterior, they have no heat or running water. The visual impact of these
boarded up houses, lack of ongoing maintenance, and the uncertainty surrounding the
future use of these houses has a detrimental impact on neighbourhood pride and
confidence. Some of the residential properties are now used for parking, likely
associated with the university, and property maintenance and appearance standards
have deteriorated. Housing conditions along Indian Road also provide a poor interface
between the neighbourhood and the University of Windsor, and generally detract from
 100

the many attributes of the community. In summary, the issue of boarded up houses on
Indian Road is having a serious negative impact on the Olde Sandwich Town
neighbourhood. This issue requires immediate attention because the resolution of this
issue is vital to the health of this neighbourhood.

The Ambassador Bridge is zoned Commercial District 4.4. (CD 4.4) in Zoning By-law
8600. The adjacent properties on Indian Road are zoned Residential 2.2 (RD 2.2). The
Indian Road homes and adjoining residential area are designated Residential in the
Windsor Official Plan. Any proposal to change the use of these residential lands would
require both an Official Plan amendment as well as a rezoning.
[pgs. 40 - 42]

8.4.2 Impact of Proposed Bridge Expansion on Indian Road Houses

The current Ambassador Bridge sits well above most of the houses along Indian Road
which back onto the bridge property. While relatively close to the bridge, there is some
separation between many of the houses and the bridge comprised of the rear yards and
the University of Windsor parking lot.

Figure 3 illustrates the preliminary alignment of the proposed second bridge in relation
to the houses along Indian Road. The proposed new bridge would be located south of
the existing bridge and would be much closer to the existing houses along Indian Road.
If the second span were approved as proposed, in the area west of Peter Street, the
houses along Indian Road would have to be removed. The close proximity of the
proposed second bridge to the houses and their rear yards would create poor living
conditions and a lack of enjoyable outdoor space. While it is clear that the houses on the
north side of Indian Road would have to be removed in order to accommodate the
proposed bridge expansion, if approved, houses on the south side of Indian Road do not
have to be demolished to accommodate the proposed bridge expansion. Therefore, it is
recommended that any boarded up houses on the south side of Indian Road be returned
to productive use.

The CTC proposes to demolish the houses on the north side of the Indian Road to
accommodate the bridge expansion, with the balance of the land south of the new bridge
turned into a grass lawn and fenced off from public use, according to CTC
representatives. CTC staff did, however, indicate that through a cooperative effort
between the City and other partners, the CTC would be prepared to consider their
proposed bridge buffer being a more extensive open space system similar to the proposed
Green Corridor further to the east. No plans have been made available by the CTC
which indicate a specific treatment of any kind for the Indian Road lands owned by the
CTC if the houses are demolished.
[pgs. 42 - 43]

8.4.3 Options for Indian Road Houses

The CTC has indicted very clearly that it intends to demolish the boarded up houses on
 101

the north side of Indian Road as soon as the City approves demolition permits, even
before the bridge project is approved, and even if for whatever reason the proposed
bridge expansion does not proceed. CTC feels that the demolition of the boarded up
houses is required even for security protection in relation to the existing bridge. It is not
known how long the EA processes and permitting for the proposed bridge expansion will
take.

The key question is: if the bridge does not proceed to construction, could the boarded up
houses be rehabilitated and provide reasonable residential accommodation? From
planning perspective, there is no reason that the houses could not be rehabilitated and
reintegrated into the neighbourhood. These houses would offer the same level of
accommodation that they did prior to being boarded up. Many of these houses were
previously used as student accommodation for the adjacent University of Windsor.
Therefore, it is likely that the most appropriate market opportunity for these houses,
should they be rehabilitated, would be University related rental housing. However, from
a physical perspective, the longer the houses are unoccupied and without heat and
operable plumbing, the more they will deteriorate and the less the chance of
rehabilitation. In fact, the CTC has had a professional engineer review the conditions of
the boarded up houses and this engineer's conclusion was that the houses have already
deteriorated to a condition where they cannot be rehabilitated and would need to be
demolished.

The Sandwich Heritage Conservation District Plan Final Report (HCDP) (July 2008),
states that "despite recent deterioration, the east side of Indian Road remains a vital part
of the residential component of the Sandwich Heritage Conservation District". The
HCDP outlines four options for this section of Indian Road. From most to least
preferable, these options are:

1) Restoration of the existing houses;

2) Demolition of the existing houses and construction of new houses as soon as
possible that respect and are compatible with the heritage character of the
Sandwich area;
3) Adoption of an overall master plan for the adaptive ruse of the east side of
Indian Road, with some form of "adaptive re-use or preservation of the original
building features" to be incorporated into the succession plan for the site; and
4) Demolition of the existing houses and use of the area on the east side of Indian
Road as public open space with linkages to the Detroit River.

The HCDP indicates that in the event Options 3 or 4 for this area are to be implemented,
public consultation will be considered as part of the review process for the Indian Road
Master Plan, and at that time concepts for the use of areas n the east side of Indian Road
as public open space for linkages to the Detroit River would be further developed.
Concepts that could be considered at that time include the "Green Corridor" project.
[pgs. 43 - 44]

8.4.4 The Green Corridor Concept

 102

The Green Corridor project is a concept for the development of a green "gateway" in the
City of Windsor along the Huron Church Corridor from College Street/the customs Plaza
traveling north approximately two kilometers in length. The Green Corridor concept
was initiated by artist Noel Harding in collaboration with University of Windsor Visual
Arts Professor Rod Strickland. The project is an interdisciplinary and multi-institutional
collaboration and includes a team of environmentalists, science and engineering
researchers, artists, politicians, city planners, educators and community residents.

The Green Corridor is intended to create an environmentally sound, multi-faceted art

and science public project. The initial phase of the project was the Nature Bridge across
Huron Church Road and the Green Corridor team is now working with Assumption High
School to develop an innovative natural stormwater management solution and teaching
facility.

There are no specific detailed plans available for the green corridor. However, there is
a model located at the University of Windsor in the Arts Faculty which illustrates the
concept and its principles. The model begins at the Customs Plaza and travels eastward
along the Huron Church Corridor.

Should Option 4 of the HCDP be ultimately implemented (public open space with
linkages to the Detroit River), this will provide an opportunity for new linear public open
space which could link the Waterfront with Huron Church Road east of the Customs
Plaza area as promoted by the Green Corridor Plan. This linear open space could also
be extended along Huron Church Road perhaps all the way to St. Clair College as part
of an attractive entryway to Windsor or a green corridor for motorists approaching the
Ambassador Bridge via Highway 401/Huron Church Road. use of the proposed open
space beside the bridge expansion as a simple, utilitarian grassed space, possibly
surrounded by chain link fence, will not have positive benefits for the community, and
should be avoided.

Any proposal to develop a Green Corridor along Indian Road should be subject to
comprehensive professional design, have a specific purpose or function, and provide full
public access along the length of the corridor. A series of activities or characteristics
could be provided in the Green Corridor including the following:
• A linear trail providing access to and from the river paralleling the bridge and
linking to Huron Church Road;
• Hard court or other types of play areas, possibly oriented to the University
community;
• An "eco-friendly" stormwater management design, designed in conjunction with
University of Windsor engineering students and faculty in furthering the sustainability mandate
of the green corridor group;
• Public art as defined in the broadest sense including the earth sculpting of the
original green corridor project. The possibility exists to extend the sculpture garden of the
riverfront along this green corridor, or to develop a history walk focused on the bridge and
Windsor/Detroit history, for example;
• Existing street trees should be retained as they add a sense of maturity to the
corridor;
• Access under the Ambassador Bridge along the waterfront and then through the
 103

Villa Maria site, also owned by the CTC, to provide missing links in the waterfront trail system;
• Existing streets which cross under the bridge, namely Wyandotte Street,
Donnelly Street, Peter Street and University Avenue should be maintained;
• Secure areas under the bridge will need to be appropriately fenced however
attractive alternatives to standard chain link fencing should be investigated.
[pgs. 44 - 45]

8.4.5 Recommendations

Demolition of the houses on the north side of Indian Road would remove some 60-plus
dwelling units from the OST neighbourhood which is a significant loss to the local
housing stock. Also, there is uncertainty with respect to whether and when CTC will
receive all required approvals for a second span, and whether and when the second span
will be built, if approved.

Accordingly, it is recommended:

51. First, that the City attempted to reach agreement with the CTC and other
applicable landowners for returning the boarded up/vacant housing on Indian Road to
productive use, at least until such time as the bridge expansion is approved and is
proceeding.

52. Secondly, that the City attempt to reach agreement with the CTC and other
applicable landowners for returning the boarded up/vacant housing on Edison Street and
other vacant housing in the Project Area to productive use.

53. Thirdly, if the bridge project does not proceed, the City should tie all approvals
to demolish the houses to specific conditions that ensure appropriate use is made of the
land to the benefit of the OST community, the University of Windsor, and the City at
large.

54. If agreement with landowners for the returning of boarded up vacant housing in
the Project Area to productive use cannot be reached, the City consider exercising its
authority under the Planning Act and other applicable legislation to acquire these lands
and to then construct, repair, rehabilitate or improve the vacant/boarded up houses
and/or sell, lease, or otherwise dispose of said lands to the private sector and/or the
University of Windsor, for purposes of construction, repair, rehabilitation or
improvement of the vacant/boarded up houses in conformity with this CIP and other
applicable plans.

55. Finally, if the bridge project proceeds, approvals to redevelop these lands,
including the processing of amendments to the Official Plan, zoning by-law and issuance
of site plan approvals, should be tied to the following specific conditions that ensure
appropriate use is made of the land to the benefit of the Olde Sandwich Towne
community, the University of Windsor, and the City at large:

a) A comprehensive plan for the reuse of the Indian Road lands as a linear/open
 104

space/park extending from the Waterfront to Huron Church Road will be prepared.

b) This comprehensive plan should be prepared and implemented through a

partnership involving the green Corridor group, the City, the CTC and other community
stakeholders.

c) The comprehensive plan will include the opportunity for community input to the
use and design of the open space, and student projects to design and construction
various parts of the corridor.

d) The new open space corridor will tie into the waterfront parkway system and the
path north of the bridge and should be extended under the bridge to provide a missing
linkage. The CTC property on the waterfront should be incorporated into this open
space corridor.

e) Demolition of existing boarded up houses on the south side of Indian Road and
at other locations in OST will not be permitted, and boarded up houses on the south side
of Indian Road and at other locations in OST should be, wherever possible, returned to
occupied residential use.

f) A development agreement between the City and the CTC should be prepared and
executed. This agreement should include a timeframe for construction and details
regarding the open space corridor to be built. This agreement should include
financial/other penalties if there is default on the agreement by CTC.
[pgs. 45 - 46]

11.1.3 Target Area 3 - Remainder of Olde Sandwich Towne Project Area

The CIP recommends a number of policy measures that the City should take to foster
more stability in the residential neighbourhoods in OST. These measures include:

a) continuing the existing Demolition Control By-law and process for processing
exemption requests for at least one year after the OST CIP is approved;

b) exploring steps the steps the City may be able to take under other provisions of
the Planning Act, the Municipal Act or the Heritage Act or if necessary obtaining
special legislation, to ensure that the City can refuse a demolition permit except
under conditions which can effectively ensure that a replacement use or building
which respects the characteristics/features of the area is built in a timely way;

c) enhancing enforcement of the property standards by-law in Target Area 3; …

[pg. 64]

11.1.4 Ambassador Bridge Expansion Proposal

The lack of specificity around the timing of approval of the bridge expansion and its
 105

construction, suggests that the City follow a stepped process to address the large number
of boarded up houses on Indian Road and on and around Edison Street in OST. The CIP
recommends that:

a) The City and CTC first explore the possibility of returning the housing on Indian
Road to productive residential use until such time as the bridge project
proceeds;

b) If the bridge project proceeds, the City should tie approvals to demolish the
houses and rezoning of the property to accommodate the bridge expansion to the
following conditions:
i) A comprehensive plan for the reuse of the Indian Road lands as a
linear/9pen space/park extending from the Waterfront to Huron Church
Road will be prepared.

ii) This comprehensive plan should be prepared and implemented through a

partnership involving the Green Corridor group, the City, the CTC and
other community stakeholders.

iii) The comprehensive plan will include the opportunity for community
input to the use and design of the open space, and student projects to
design and construct various parts of the corridor.

iv) The new open space corridor will tie into the waterfront parkway system
and the path north of the bridge and should be extended under the bridge
to provide a missing linkage. The CTC property on the waterfront
should be incorporated into this open space corridor.

v) Demolition of existing boarded up houses on the south side of Indian

Road and at other locations in OST will not be permitted, and boarded
up houses on the south side of Indian Road and at other locations in OST
should be, wherever possible, returned to occupied residential use.

vi) A development agreement between the City and the CTC should be
prepared and executed. This agreement should include a timeframe for
construction and details regarding the open space corridor to be built.
This agreement should include financial/other penalties if there is
default on the agreement by CTD; and.

c) If the bridge project does not proceed, the City should tie approvals to demolish
the houses to specific conditions that ensure appropriate use is made of the land
to the benefit of the OST community, the University of Windsor, and the City at
large."
[pgs. 65 - 66]

Chairman of Windsor Heritage Committee Resigns

 106

75. On September 11, 2008, The Windsor Star reported on an interview it had conducted
with Greg Heil, the long-time chairman of the City of Windsor Heritage Committee.

76. Now shown to me and marked as Exhibit 34 to this my affidavit is a copy of that article
in The Windsor Star. The newspaper reported that Mr. Heil resigned his chairmanship of the
Heritage Committee because he was angry over how the heritage study was being used as a
weapon in Council's fight to stop the Ambassador Bridge from building a twin span. The
following statements by Mr. Heil were quoted in the article:
"… "I have a grave concern about potential political influences tainting the outcome of
this study which may jeopardize the heritage welfare of Sandwich, " said Greg Heil in his
resignation letter.

"I'm also concerned about the likely vigourous litigious fallout to which I could find
myself personally exposed if I participate."

"I could not allow myself to preside over that," he said. "I feel it was tainted by ulterior
motives, tainted by the role of the bridge company.

"I have no sympathy for the bridge," he added, suggesting he is suspicious of the bridge's
plans for the houses.

But Heil said the city should be consulting with senior government in that fight, "not
using heritage as away to stall off the bridge and create tremendous inconvenience for
residents of Sandwich."

"The truly important aspect of Sandwich - Mackenzie Hall, Duff-Baby House - re being
tied up by this. You can expect a flurry of legal activity. I could not be tied up with that,
so I chose to put in m y resignation in that time.

"It's a fairly momentous achievement to create a heritage district in our city, but when
it's wrapped up in other ulterior motives, it's doomed to fail and I seriously regret that."

… He accused the city's CAO John Skorobohacz and councillors of using the committee
to carry out political agendas instead of protecting the city's heritage. …

"We are just window dressing to further agenda for political winds blowing at the time.
A good example is the Sandwich report. I think the outcome is clearly tainted and the
boundaries make no logical sense." …"

77. On April 9, 2010, Mr. Heil wrote a letter to The Windsor Star which was published,
where he again stated that the Heritage District Study was used as a blatant attempt to thwart the
 107

Ambassador Bridge. Now shown to me and marked as Exhibit 35 to this my affidavit is a copy
of Mr. Heil's letter to the Editor of The Windsor Star published on April 9, 2010. In this letter,
Mr. Heil makes the following statements:
"…My true conviction is that the ABC is solely responsible for the destruction of Indian
Road through a malicious from of "blockbusting" and demonstrates a most reprehensible
corporate citizenship on both sides of the border.

Unfortunately, my further conviction is that the City of Windsor has made matters far
worse and reflects the true reasons for my departure. I believed that the Sandwich
Heritage Conservation District drew deeply flawed boundaries far beyond the core
Sandwich Street historical corridor to include a number of residential neighbourhoods
with no heritage merit.

It seemed to me a blatant attempt by the city to thwart the ABC by extending an enhanced
control over the properties acquired by it on Indian Road.

The result has been to "trap" a large swath of these residential areas in "limbo" and
raise hostility toward the heritage district from the property owners.

Lawsuits are flying, the OMB is involved and the true benefits of the conservation
process are threatened because the powers-that-be at city hall though that they could
trump the ABC using "heritage" as a weapon. This plan was foisted on the WHC at the
11th hour for a "rubber-stamp" approval and I could not endorse it in good conscience.

Certainly by now, it's recognized that the city cannot fight the ABC alone and must
actually co-operate with senior government levels toward that end.

This particular fight should now end and I recommend the following immediate actions
by the city to achieve it.

Consult with the property owners to assure them the matter is being addressed and seek
withdrawal of pending lawsuits.

Compel the ABC to demolish the effected structures immediately.

Compel the ABC to install substantially dense landscaping and earth berming on the
vacated corridor to create an effective transition buffer between the residential and
commercial uses. If the ABC will not perform, consider powers of expropriation.

Revise the SHCD boundaries concisely around the Sandwich Street corridor. …"

Council Receives the Sandwich HCD and CIP Reports

78. On November 12, 2008, a report was prepared by Thom Hunt, City Planner, for the
Windsor Planning Advisory Committee. The report makes a number of recommendations,
 108

including that the following reports be received and adopted as the case may be:
• to receive Sandwich Towne Community Improvement Plan Background Report dated
April 2008;
• to receive the Sandwich Heritage Conservation District Plan Final Draft Report dated
July 2008;
• to adopt the Draft Olde Sandwich Towne Community Improvement Plan dated
November 2008;
• to endorse the Olde Sandwich Towne Community Improvement Plan Target Areas
Planning Issues Report dated October 2008;
• to adopt the Draft Supplemental Development and urban Design Guidelines dated
October 2008;
• to amend Windsor's Official Plan in accordance with the recommendations contained in
the Sandwich Heritage Conservation District Plan report dated July 2008;
• to amend Zoning By-law 8600 to implement the recommendations contained in the
Sandwich Heritage Conservation District draft final report dated July 2008;
• to amend the City of Windsor Official Plan in accordance with the Draft Olde Sandwich
Towne Community Improvement Plan dated November 2008;
• to repeal the Sandwich Community Improvement Plan Project Area Bylaw No. 9724 and
the March 1989 Community Improvement Plan adopted by By-law No. 9725.

79. Now shown to me and marked as Exhibit 36 to this my affidavit is a copy of that report.
The following excerpts are taken from that report:
"RECOMMENDATIONS:

10. That the Sandwich Community Improvement Plan Project Area By-Law No.
9724 and the March d1989 Community Improvement Plan Adopted by By-Law No. 9725
BE REPEALED.
 109

BACKGROUND:

The origins of the Sandwich Heritage Conservation District Plan and the Olde Sandwich
Towne Community Improvement Plan be found in the Community Planning Study (CPS)
for Olde Sandwich Towne. … City of Windsor Council adopted the CPS in October of
2006 as the City's guide to future planning, capital budgeting and community
improvement efforts in Olde Sandwich Towne.

…Two important recommendations of the CPS were that a Community Improvement

Plan and a Heritage Conservation District plan be prepared for this area.

Purpose of the Plans

The Community Improvement Plan (CIP) and the Heritage Conservation District Study
Conservation Plan (Study) have somewhat differing, yet complementary purposes.

… the purpose of the CIP is to:

a. Identify the need for community improvement in Olde Sandwich Towne;

b. Identify municipal strategies and actions designed to lead and stimulate private
sector investment and redevelopment;
c. Develop policies and incentive programs to promote private sector investment in
the revitalization and redevelopment of land and buildings;
d. Develop recommendations to address key planning issues in each of the three
Target Areas within the Olde Sandwich Towne Community Improvement project
Area;
e. Prepare Development and Urban Design Guidelines to supplement the Heritage
Conservation District Urban Design Guidelines; and,
f. Prepare an Action Plan for the implementation of the CIP.

The purpose of the Sandwich Heritage Conservation District Conservation Plan is to

establish a framework by which the heritage attributes of the Sandwich area can be
protected, managed and enhanced as the community evolves and changes over time. It
will provide residents and property owners with clear guidance regarding appropriate
conservation, restoration and alteration activities and assist municipal staff in reviewing
and council in making decisions on permit and development applications within the
district.

The Conservation Plan suggests a proposed HCD boundary that includes two relatively
distinct areas - the historic commercial/institutional core of Sandwich (which
incorporates the key properties and functions that represent the historic independent
community of Sandwich) and the majority of he 1920's subdivision in the
Rosedale/Alexander area.

Recommendations form these two studies are now proposed to be implemented through
amendments to the Official Plan and Zoning By-law 8600.

Implementation Philosophy
 110

The general philosophy for implementing the studies is to incorporate planning

objectives and design guidelines into the Official Plan to provide criteria for rezoning,
site plan approval and heritage permits. More specific recommendations from the Study
and CIP are to be implemented through amendments to the Zoning By-law.

The CIP recommends that a Master Plan be undertaken for the waterfront area. The
Master Plan will provide more detailed planning work to be undertaken before specific
Official Plan designations and Zoning can be determine. Consequently there are no
recommendations for Official Plan or Zoning changes to the CIP waterfront area.

Redevelopment

… Ontario Heritage Act prohibits the demolition of buildings in a Heritage Conservation

District, and requires that a permit be issues. The Heritage Conservation Study in part
recommends that an application for a permit has to be filed with council. It is proposed
that the City of Windsor Official Plan will contain a list of the documentation required to
accompany an application for demolition; the documentation will assist City Council in
evaluating the proposed demolition.

The proposed Official Plan policies will require that a re-development plan be provided
as part of any application for demolition; the re-development plan will be required tin
the form of a site plan application, and there will be a requirement that the demolition
permit will not be issued until the site plan application with appropriate security to carry
out the redevelopment us approved By implementing these measures, it is anticipated
that demolition will only occur when re-construction is proposed.

For areas that are in the CIP area but not within the Heritage Conservation District,
different provisions are needed to control demolition. Within residential areas, the
existing demolition control by-law will continue to apply, and within non-residential
areas a new process will need to be implemented. … require that a re-development plan
be provided for a replacement use for any property that is proposed for demolition.
Each application for demolition will require site plan approval including an appropriate
security to ensure that the proposed redevelopment occurs.

Heritage Conservation District Study

… recommends the designation of a Heritage Conservation District pursuant to the

Ontario Heritage Act. The HCDP contains a recommended approach and policies to
deal with the treatment of additions and alterations to existing buildings and structures,
guidelines for new buildings and structures, and demolition policies. … procedure for
granting heritage permits, provides architectural guidelines for all buildings and
structures in the district, streetscape guidelines for public and private property and
guidelines for the conservation of heritage buildings and structures.

… The following summarizes this proposed Official Plan amendment: …

• Add documentation required for demolition in the Heritage Conservation
District in the new Special Policy Area 1.26u. Only permit demolition when plans for a
replacement building are approved at the same time; and
 111

• … 1.26 including policies on trees, views, vistas, fences, trees, hedges, streets,
alleys and parking.
 112

The following changes are recommended for the Zoning By-law: …

• Add a new overlay zoning for heritage residential areas that provides
regulations that maintain current conditions (for frontage, lot area, coverage and yard widths);
…

Community Improvement Plan

… The Olde Sandwich Towne Community Improvement Plan (CIP) is the study of land
use policy undertaken as a result of Interim Control By-law 19-2007 as amended by By-
law 35-2008. …

… The three target areas are the Commercial Core along Sandwich Street, the
Waterfront, and the Residential areas (the remainder of the Olde Sandwich Towne
Project Area_. Each of the recommendations in the Target Areas Planning Issues Report
and the resulting CIP was considered to determine whether Official Plan and Zoning By-
law changes should be initiated to implement the recommendations. … key elements of
the recommended Official Plan amendment:
• require a Waterfront Master Plan for Olde Sandwich Towne; …
• require securities to ensure that replacement buildings are built for all proposed
demolitions.

… The Commercial part of the CIP coincides with the commercial portion of the
Heritage Conservation District, and all recommended CIP zoning changes are the same
as or similar to those in the HCDP. The CIP residential area is larger than the Heritage
Conservation District, and … zoning changes are recommended to be implemented by a
specific zoning provision for the residential areas outside the Heritage Conservation
District: …

Waterfront

The CIP recommends that a Master Plan be undertaken for the waterfront area. The
Master Plan will provide more detailed planning work to be undertaken before specific
Official Plan designations and Zoning can be determined. Consequently there are not
recommendations for Official Plan or Zoning changes to the CIP waterfront area as part
of the amendments contained in this report.

CONCLUSIONS AND NEXT STEPS:

… Changes to the City of Windsor Official Plan and Zoning By-law are proposed to
occur prior to the expiry of the Interim Control By0law 19-2007 (as amended by By-law
35-2008). The Interim Control By-law is set to expire January 28, 2009."

December 3, 2008 Planning Advisory Committee Meeting

80. This report went to the Planning Advisory Committee meeting on December 3, 2008.
 113

Now shown to me and marked as Exhibit 37 to this my affidavit is a copy of minutes of

that meeting. The following are excerpts from that meeting:
"… Ms Paul Lombardi, Siskinds Law Firm, Solicitor representing Canadian Transit
Company, appears before PAC requesting deferral of the application. She states that
there has not been sufficient time to prepare for the meeting. Ms. Lombardi states that
the subject reports are attempting to use the provisions of the Planning Act to
expropriate the houses along Indian Road. She also notes that Section 8.4, dealing
specifically with the Ambassador Bridge Expansion Project, was only added to the CIP
in the November 20, 2008 version of the document. Further, she states that the Official
Plan and zoning by-law amendments being used as tools to expropriate lands owned by
the Canadian Transit Company were also just released for comment and review on
November 20, 2008.

The Vice Chair states that the request for deferral is not supported and the matter will
proceed.

Mr. Abbs … He notes that the following recommendation proposed by the Windsor
Heritage Committee was not supported by the project team. It reads as follows: "that
the area shown on Figure 3 of the Sandwich Heritage Conservation District Plan - Final
Draft Report BE DESIGNATED and, further that all the waterfront, including any
water lots form the Ambassador Bridge to Mill Street BE INCLUDED."
[pg. 9]

Mr. Hunt introduces Mr. Bob Lehman, Lehman and Associates, who had the task of
taking the recommendations form the Sandwich Heritage Conservation District Plan and
taking the recommendations from the Community Improvement Plan, reviewing those
with the existing Official Plan and zoning by-law documents and ultimately making
recommendations for how both of those documents will need to be changed or amended
in order to go forward and implement the two subject studies.

Mr. Lehman … A permit to demolish a building would not be issued without a

development plan in the Heritage District. In the Community Improvement Plan, site
plan approval, including a demolition permit, would not be given unless a specific
development plan were submitted. These policies are fair in that they do not prohibit
demolition but rather encourage re-development. …
[pgs. 9 - 10]

Ms. Lombardi refers to Section 8.4 and states that it is a new section in the document
that had not been presented for public comment before November 20, 2008. She refers to
Recommendation 54 on page 45, which indicates that the City use its authority under
Section 28 of the Planning Act to acquire those lands along Indian Road to construct,
repair, rehabilitate, improve and lease or otherwise dispose of these lands. In her
opinion, that clause under the Planning Act is a means of expropriation and a
mechanism for the City to expropriate lands from a private landowner. …refers to
Section 8.4 of the document and she claims there are some false statements and
 114

misrepresentations. Firstly she refers to Section 14 of the CIP states that Section 8.0 is a
supplementary section or a summary of what has been previously presented. In her
opinion, that is not true because Section 8.4 has never before been presented and they
have not been consulted on it. She states that the CTC is not 'twinning' the Ambassador
Bridge and she states that Section 8.4 is written as though the bridge will be twinned.
The CTC is proposed 6-lane structure that will replaced the existing bridge. The existing
Ambassador Bridge is listed as a heritage structure in the USA and will remain standing
and will be taken out of service and only used in cases of emergency. In order to do that,
Federal approvals will be required. Section 8.4.3 of the CIP states that the houses on
Indian Road, from a planning perspective, there is no reason that these houses cannot be
rehabilitated. Ms. Lombardi states that, according to research done by Dr. Becker, the
houses are too badly damaged and cannot b rehabilitated for numerous reasons. She
also points out that because of physical changes and replacements made to be facades,
none of the homes merit heritage designation. In her opinion, these homes, in their
present condition, do not meet building or fire code standards and should be demolished
or at least, boarded up.

Ms. Lombardi notes that the Heritage Conservation District Plan has been passed b the
Heritage Committee; however it has not been endorsed by Council. She points out that,
in several sections, the CIP and Conservation Plan have been linked together and in her
opinion, this is inappropriate and premature. As examples, she points to Section 2.0,
Section 1.3, Section 6.0, Vision and Goals, Section 8.4.3, and Section 9.0. In summary,
she states that she fears there are some inaccuracies and misrepresentations that should
be corrected before the documents go to Council.

Ms. M. Cuderman … As a citizen of Sandwich, she refers to the CIP, page 45, Section
8.4.5., Recommendations 51 to 55 and states that she totally endorses all of those
recommendations. The neighbourhood is becoming 'ghettoized' and people no longer
want to live on Indian Road, Edison and Bloomfield Road. In her opinion, the CTC is
responsible for what has happened in that area. She believes they have bought
properties and left them vacant with no plans. She encourages PAC to adopt the reports
so that they can move forward with improvements to Olde Sandwich Towne.

Mr. Hunt responds that the Sandwich Heritage Conservation Plan is approved under the
Heritage Act and therefore that Plan is recommended for approval to Council by the
Windsor Heritage Committee and not the Planning Advisory Committee. However, PAC
is the body that recommends changes to the Zoning By-law and Official Plan and
therefore, Recommendations 6 and 7 are asking PAC to recommend amendments to the
Official Plan and By-law 8600. … Ultimately on January 12, 2009,t he recommendations
of PAC and of the Windsor Heritage Committee will go forward to Council.
[pgs. 11 - 12]

Mr. Hunt notes that the 4 options are referred to on page 43 of the CIP document under
Section 8.4.3, as well as Section 4.8 in the Heritage Conservation Plan. These options
are basically recommendations set out in most preferred to least preferred order. The
Windsor Heritage Committee did not vote on a option.
 115

Councillor Hatfield refers to the recommendation that demolition only be permitted if

linked to new construction and he asks if green space would be acceptable instead of
construction of a building.

Mr. Lehman responds that according to the proposed by-law amendment, green space
would not be acceptable.

Councillor Hatfield then confirms from Mr. Lehman that if the Bridge Company
demolished homes on Indian Road and wanted to replace them with the foundations for a
new bridge that they would also not comply with proposed amendments.
[pg. 13]

Councillor Hatfield … confirms from Mr. Lehman that when demolition of a building is
proposed to Council, the property owner must provide documentation demonstrating
appropriate reasons for demolition, including the condition of the building, the cost of
repairing the building, safety issues and what efforts the owner has taken to rehabilitate
the building. Lastly, Councillor Hatfield confirms from Mr. Lehman that Council could
agree to demolish the dwellings ton Indian Road if there was a plan to replace them with
structures that confirm to the Sandwich Heritage Conservation District Plan.
[pg. 13 - 14]

Councillor Hatfield refers to page 4.9, Option 4 of the Sandwich Heritage Conservation
Plan states as follows: provides the guidelines and policies in the event that none of the
existing buildings and streetscape features are preserved on this stretch of Indian Road.
Although the HCD boundary will remain intact, the area on the east side of Indian Road
shall be used as a public open space with linkages to the Detroit River. The heritage
value of Indian Road shall be conveyed by way of interpretive/cultural landmarks. He
asks if this means that the buildings can be torn down, don't have to be replaced and can
remain public open space.

Mr. Hunt responds that is correct and he states that according to the policies that have
been drafted, Council would agree and would decide sometime tin the future to what the
appropriate replacement would be, i.e. if Council chose Option 4, the least preferred
option, an interpretive open space could be chosen.
[pg. 14]

Mr. Hunt asks the Heritage Consultants to speak to the significance of the homes on
Indian Road particularly to the Heritage Conservation District.

Mr. Ken Buck, Senior Landscape Architect with Stantec Consulting and Mr. Ed
Vandermaarel, Heritage Architect, appear before PAC. Mr. Buck states that the homes
on the east side of Indian Road are essential to maintaining the heritage character of the
entire district. Of the 4 options contained in the Heritage Plan, it is the strong
preference of the consultants that the first option be chosen, whereby all the swellings
would be retained and rehabilitated.
 116

[pg. 16]

Councillor Dilkens refers to Option 4, page 43 in the CIP, that refers to the least
preferred option, which is the demolition of the existing houses on Indian Road. He
points out that even though the CTC owns homes on Indian Road, they are not in the
business of rehabilitating or renting out residential property. However, the
recommendation seems to encourage them to restore the homes even though there is no
current market for rental homes in Windsor and especially student rentals in the
Sandwich area. He asks how the proposed Plan deals with the existing problems, which
include existing run down dwellings, no student rental market, and lack of private sector
families wanting to purchase these homes and live under the Ambassador Bridge.

Mr. Hunt states that the existing land use designation on Indian Road is 'Residential' and
the proposed incentive programme is based on a cohesive residential neighbourhood.
Therefore the recommendations in the Report and proposed incentive packages aim to
restore a residential area.

Councillor Dilkens notes that even before there was any talk of twinning the bridge, the
east side of Indian Road had gone from single residential, owner-occupied dwellings to a
student occupied residential area. He understands that the desire is to build a cohesive
neighbourhood but he asks how is it reasonable to expect that families would move back
to that road when it is situated under the busiest border crossing in Canada.

Mr. Piccioni points out that the 4 recommendations on page 43 are taken from the
Sandwich Heritage Conservation District Plan and they are in the Community
Improvement Plan simply to clarify that those are the options contained in that Report.
The recommendations with respect to Indian Road, made by the CIP, are contained on
page 45, Section 8.4.5, Recommendations 51 to 55. These recommendations suggest a
logical approach starting with rehabilitation of the existing dwellings back to a cohesive
neighbourhood. Failing that, there are other options and guidelines listed, including if
the Bridge project proceeds (Recommendation 55). Mr. Piccioni states that their goal
was to build on the Heritage Conservation Plan taking into account the input form
stakeholders and citizens obtained at public meetings.

Councillor Dilkens refers to Recommendation 53 and asks if demolition does take place
what would an "appropriate" use of the plan be.

Mr. Piccioni responds that to was not within their scope to determine the exact land use.
He refers to page 46, Recommendation 55 and states that one of the appropriate uses
would be a linear public open space park.

Councillor Dilkens asks how the issue of security, as it relates to the demolition of homes
on the east side of Indian Road, is dealt with in the Plan.

Mr. Piccioni states that if and when demolition was to take place, security would be an
issue that would have to be resolved between the City and the land owners (CTC). It was
not in the mandate to study and report on how security requirements would be
 117

implemented.

Councillor Dilkens states that, in his opinion, 99% of the report is wonderful; however,
the issues involving the bridge and their ownership of the rundown homes on the east
side of Indian Road, are worrisome. He asks what tools are available to prevent the
Bridge from purchasing up more dwellings and allowing them to become rundown and
then deserted and boarded-up. This question has to be considered if the City is going to
move forward with all the information recommended in the proposed Plans.

Dr. Hanaka states that the citizens of Sandwich Towne are not supportive of the way the
Bridge Company has bought up homes and allowed them to deteriorate. If the Bridge is
twinned in the future, the homes on Rosedale will then be in the shadows of the new
bridge. With regard to security, it is better to have homes with people living there than
to have open space. In his opinion, a solution would involve bringing in real estate
professionals to inspect the homes on Indian Road and determine whether they can be
rehabilitated and sold. He doesn't understand why the Bridge would want to continue to
own real estate or, if the homes were demolished, open space that would have to be
maintained. It is very difficult to rehabilitate Sandwich Towne with the decay and stigma
attached to the Indian Road area.

Councillor Dilkens states that, even before the Bridge Company started purchasing
home, he owned a rental home on Indian Road, which he kept in good repair. However,
he found it difficult to get good tenants as the entire road became 'student ghetto". In his
opinion, families will not be moving back to Indian Road. He asks if the residents want
the students back.

Dr. Hanaka states that with responsible landlords and enforcement, student housing is a
viable option. He would like the Bridge Company to sell the homes for re-use as
residences. Mr. Hanaka states that when the Sandwich BIA was organized, the Bridge
Company was approached and they refused to take part.
[pg. 18 - 20]

Mr. Hunt states that the recommendations/amendments prepared by Mr. Lehman were a
result of taking the recommendations from both reports and trying to meld them into one.
The demolition conditions do apply to the entire CIP area. Mr. Hunt goes on to say
that, if it is the wish of PAC, there may be an opportunity to set out the issues regarding
Indian Road as a separate item.

Mr. Piccioni refers to Recommendation 38 and reads"…City obtain special legislation to

ensure that the City can refuse a demolition permit, except under conditions that can
effectively ensure that a replacement use or building … ." Mr. Piccioni states that by
using the word "use", the recommendation is not tied specifically to a building.
[pg. 20]

Mr. Asmar states that even before the Bridge Company bought the homes on Indian
Road, and before the majority of the homes were inhabited by students, the
 118

neighbourhood was starting to change and families were already moving out because
living underneath the Ambassador Bridge is not a desirable location. In his opinion,
even if the homes could be rehabilitated, it would be very difficult to sell these homes to
families. He is also opposed to the suggestion that Habitat for Humanity could use the
existing homes on Indian Road because of the noise and pollution from the non-stop
truck traffic on the bridge. Mr. Asmar suggests trying to work with the Bridge Company
and in exchange for permitting them to demolish the existing homes on the east side of
Indian Road, the Bridge Company could contribute to Habitat for Humanity in the
Edison Avenue area, where they own homes and also designate lands under the bridge to
provide an access to the trail along the riverfront. He is opposed to the idea of
rehabilitating the homes on Indian Road.
[pg. 21]

Dr. Hanaka states that homes are required because families are necessary to make a
viable, healthy neighbourhood. The homes on Indian Road were inhabited up to a few
years ago when the Bridge Company approached the owners and bought them out. He
suggests that the homes be appraised by real estate professionals and put on the market.
The homes definitely need improvements, but in his opinion, there are people who will
buy them, especially if the zoning by-laws are enforced to help clean up the impression of
the area.
[pg. 22]

Ms Lombardi states that the Ambassador Bridge is subject to Federal regulations, which
are quite clear as to what the City can do regarding safety and security and therefore,
several of the issues brought up are outside the jurisdiction of the City. Regarding the
security issues, the Ambassador Bridge has negotiated wit the Canadian Border Security
Agency (CBSA) and have special requirements under the SOR where they are required to
plan at least 15 years into the future. The 180 acres is not a requirement for CBSA but
was part of a study put out by DRIC as to what was necessary for a new bridge. The
amount of land that is dedicated to Canada Customs exceeds 180 acres.

Councillor Hatfield asks Ms. Lombardi to comment on the future of the homes on the east
side of Indian Road.

Ms. Lombardi states that she was hired to work on the Federal Environmental
Assessment technologies issues for the replacement bridge, which will be replacing the
existing 80-year-old bridge. She states that DRIC was established a few years ago when
traffic levels were high and there was a warrant for a second crossing. Even though
traffic levels are down now, the Ambassador Bridge is the busiest international border
crossing and the backbone to NAFTA and therefore, a replacement span is necessary. In
her opinion, it will mitigate many of the concerns presented by the community.
[pg. 23]

Mr. Asmar reiterates that people should not be expected to live near the Ambassador
Bridge. In his opinion, there are reasons why people moved away from Indian Road and
 119

accepted the Bridge's offer to buy their homes. He believes PAC should be fair and
compassionate and not support having people subjected to those living conditions. If
those dwellings were demolished, there would be an opportunity to have a green area in
its place. There may be an opportunity to negotiate with the Bridge for green space on
Indian Road in exchange for them developing lands further away from the bridge into
homes for Habitat for Humanity or for a contribution into the upkeep of Assumption
Church.

Ms. Lombardi replies that HDC Consultants did a noise study and submitted it in
December 2007 as part of the Federal Environmental Assessment package. She will
check to see if the City received a copy and notes that it is a public document and is on
the Federal Environmental Assessment web site.
[pg. 25]

Recommendations 3 (PAC)

Moved by Councillor Dilkens, seconded by Councillor Postma,

3. I That the Draft Olde Sandwich Towne Community Improvement Plan dated
November 2008 BE ADOPTED by By-law for the Olde Sandwich Towne Community
Planning Study area, illustrated in Appendix A, attached hereto with the exception of
Recommendations 51 to 54 and PAC supports Option 4 (regarding demolition). The
Olde Sandwich Towne Community Improvement Plan is the study of land use policy
undertaken as a result of Interim Control By-law 1902007 as amended by By-law 35-
2008;

II That Council consider the addition of "use" in Policy 1.27.11.(1.26.9 correct

reference)

III That PAC acknowledges that Council has not yet considered the Sandwich
Heritage Conservation District Plan.

FOR: Councillor Dilkens, Councillor Postma, Mr. Asmar, Mr. Baker

AGAINST: Ms. Cross-Leal, Ms Growe-Zdyb ad Councillor Hatfield"

[pg. 30]

December 10, 2008 Windsor Heritage Committee Meeting

81. The Windsor Heritage Committee considered and made the following recommendations
at its meeting of December 10, 2008:
"That the Sandwich Heritage Conservation District Plan - Final Draft Report, dated July
2008 prepared by Stantec BE SUPPORTED and;
 120

That the area shown on Figure 3 of the Sandwich Heritage Conservation District
Plan - Final Draft Report BE DESIGNATED and, further that all of the waterfront
including any water lots from the Ambassador Bridge to Mill Street BE INCLUDED
and;

That the Sandwich Conservation District Plan as the heritage conservation

district plan for the Sandwich Heritage Conservation District in accordance with the
provisions of the Ontario Heritage Act BE ADOPTED."
 121

Moved by L. Baker, seconded by A. Foot,

That the letter from Kenneth Buck, Senior Principal, Stantec Consulting Ltd. dated
November 1,2 2008 regarding the "Sandwich heritage Conservation District and
Waterfront Properties" BE RECEIVED.

Carried."

Now shown to me and marked as Exhibit 38 to this my affidavit is a true copy of

those minutes.

CTC Complains of Unfairness

82. On January 9, 2009, Paula Lombardi, lawyer for the CTC wrote a letter to the City Clerk
concerning the Sandwich Heritage Conservation District Plan, Olde Sandwich Towne
Community Improvement Plan and proposed Official Plan and Zoning By-law amendments.

Now shown to me and marked as Exhibit 39 to this my affidavit is a copy of that letter.
Ms. Lombardi states, in part, as follows:
"…The CIP, HCDP proposed official plan and zoning by-law amendments contain
numerous recommendations, statements and comments that are inappropriately directed
at CTC and its operations and are not supported by sound planning or heritage
conservation principles.

CTC has gone to great lengths to provide the City of Windsor and its staff with comments
on the above noted documents. CTC, its representatives and consultants have appeared
at public meetings, met with the City's consultants, and submitted extensive and detailed
comments on the draft documents.

An entire section of the Community Improvement Plan ("CIP") is focused at the

Ambassador Bridge Replacement Span (Section 8.4 Ambassador ridge Expansion
Proposal) and was inserted into the final draft of the CIP on November 19, 2008 merely
one day prior to it being scheduled for consideration of the Planning Advisory
Committee on November 20, 2008. Section i.4 was inserted at the very last minute,
notwithstanding that the Community Planning Study for Olde Sandwich Towne area has
been underway since October 2006. This is a draconian section that purports to take
away the private development rights of CTC.

FAILURE TO ENGAGE IN PROCEDURAL FAIRNESS

… all of the documentation and comments submitted by CTC, its experts, technical
consultants and representatives should be provided to Windsor city Council and easily
accessible to members of the public for review and comment. The information and
 122

materials submitted by CTC on the CIP, HCDP and official plan and zoning by-law
amendments should have been disclosed by the City of Windsor prior to the public
meeting scheduled for January 12, 2009.

… CTC was not advised of the Windsor Heritage Committee meeting held December 10,
2008; the minutes of the meting were attached to City of Windsor's Council Agenda for
the City Council meeting scheduled January 5, 2009.

… However neither CTC nor its representatives received notification that the HCDP
would be considered and discussed at the Heritage Committee Meeting held December
10, 2008.

At the December 10, 2008 Heritage Committee meeting the City of Windsor's procedural
by-law was waived to allow Mr. Hanna to appear as a delegation to speak to the
Heritage Conservation District issue. CTC has been extremely prejudiced and denied its
procedural fairness by the failure of the Windsor heritage Committee to provide notice of
the December 10, 2008 meeting and further by denying CTC … We also note that
Stantec Consulting Ltd. ("Stantec") provided a letter for this meeting that CTC has yet to
receive and further CTC was blatantly denied its right to comment and respond to the
Stantec letter and Mr. Hanna's comments. …

Further, it is interesting to note that only five of the eleven members of the Windsor
Heritage Committee, and none of the City Councillors, were present at the December 10,
2008 meeting.

INFORMATION SUBMITTED BY CTC

… April 16, 2007 materials presented at the public workshop providing an overview of
the proposed Ambassador Bridge Replacement Span;

… DVD and overview of the Green Corridor Project and the Green Corridor Group; …

WINDSOR HERITAGE COMMITTEE/PLANNING ADVISORY COMMITTEE

… Mr. Greg Heil, former Chair of the City of Windsor's Heritage Committee, resigned
solely on the basis of the HCDP's inclusion of the lands along Indian Road in the
heritage conservation district. Mr. Heil's public comments and statements questioned the
purpose, intent and motives of the HCDP. …

… The Planning Advisory Committee ("PAC") at its meeting of December 3, 2008 clearly
took the position that the recommendations 51 to 54 set out in Section 8.4 Ambassador
Bridge Expansion proposal, and directed specifically to stop, hinder and obstruct the
Ambassador Bridge Replacement Span not be approved. PAC also stated its support for
option four; being the demolition of the houses along Indian Road.

At the PAC meeting it was also suggested that in dealing with demolition permits the
policies be drafted in such a way as to ensure a wide range of uses be permitted other
than limited replacement uses to buildings and structure. PAC suggested that uses such
as open space also be included and treated as a replacement use. …
 123

CONCLUSIONS

…The implementation of the CIP, HDCP and the associated official plan and zoning by-
law amendments represent the City of Windsor's attempt to hinder, obstruct and impede
the Replacement Span project. It is unfortunate that this focus of the City of Windsor
detracts from the true purpose and intent of these documents which is the preservation
and revitalization of the Olde Sandwich Towne area. …"

Council Adopts HCD, CIP and Associated OP and Zoning Amendments

83. On January 12, 2009, all of the aforesaid reports concerning the Heritage District
Designation and the Community Improvement Plan, together with the associated changes to the
Official Plan and Zoning By-law were considered, passed and adopted by City Council.

84. Now shown to me and marked as Exhibit 40 to this my affidavit is a copy of the Council
Minutes for January 12, 2009. The resolutions and bylaws appear on page 12 and 13 of those
minutes. The following excepts are taken from those minutes:
"PRESENTATION and DELEGATIONS:

The Sandwich Heritage Conservation District Plan, The Olde Sandwich Towne
Community Improvement Plan; Official Plan and Zoning Amendments:

and

Olde Sandwich Towne Community Improvement Plan, Sandwich Heritage

Conservation District Plan, Official Plan and Zoning By-law Implementation

Thom Hunt, City Planner and Kevin Alexander, Senior Community Development
Planner

Thom Hunt, City Planner and Kevin Alexander, Senior Community Development
Planner, appear before Council to provide in the form of a presentation a general
overview of the "Olde Sandwich Towne Reports and Plans", highlighting the differences
between the Windsor Heritage Committee Recommendations and those of
Administration; …

Paula Lombardi, Solicitor representing The Canadian Transit Company

Paula Lombardi, Solicitor representing The Canadian Transit Company (CTC), appears
before Council to reiterate concerns previously provided with respect to the Heritage
Conservation District Plan, Community Improvement Plan and proposed Official Plan
 124

and zoning by-law amendments, stating that there are numerous recommendations,
statements and comments that are inappropriately directed at the CTC and its operations
and are not supported by sound planning or heritage conservation principles, that highly
unusual restrictions are being placed on Indian Road (the houses on that Road cannot be
rehabilitated), and that there has been a consistent failure of the City of Windsor and its
various committees to provide the CTC with the minimal procedural fairness required,
and that the City of Windsor's Administration chose to disregard the comments, concerns
and recommendations expressed by the Planning Advisory Committee and in fact
represents the City of Windsor's attempt to hinder, obstruct and impede the Replacement
Span project.
[pg. 5 - 6]

Dr. Gregg Hanaka, Ward 2 resident

… stating that he is pleased with the resulting policies, which represent the will of the
Sandwich residents.

Mary Ann Cuderman, Ward 2 resident

… requesting that with regards to the Sandwich Heritage Conservation District plan,
that all of the waterfront, including any water lots from the Ambassador Bridge to Mill
Street, be included.
[pg. 7]

Marco Sperduti, Ward 2 resident

… stating that something has to be done for the affected area, as Indian Road is in
deplorable conditions and suggests that the homes on that Road be torn down
immediately.

Paula Lombardi, Solicitor representing The Canadian Transit Company

…. appears before Council to express concern over Stantec Consulting Ltd. providing a
letter to the Windsor Heritage Committee at the December 10, 2008 meeting and further
suggests that Stantec Consulting is in a conflict of interest as they are involved with the
DRIC process, and concludes by suggesting that the Community Improvement Plan
inappropriately relies on the Heritage Plan to support several of its recommendations
and methodology.

Sue Jones, Ward 2 resident

… stating that something has to be done for the affected area, as Indian Road is in
deplorable condition and suggests that the homes on that Road be torn down
immediately.
[pg. 8]
 125

Moved by Councillor Brister, seconded by Councillor Lewenza,

MSS-2009 That Report No. 253 of the Windsor Heritage Committee of its meeting
held September 10, 2008 BE ADOPTED as presented.
Carried.
Councillors Postma, Halberstadt, Valentinis and Jones voting nay.
[pg. 9]

Jones
Brister

CR12/2009
1 That the Olde Sandwich Towne Community Improvement Plan Background
Report dated April 2008 BE RECEIVED;

2 That The Sandwich Heritage Conservation District Conservation Plan Final

Draft Report dated July 2008 BE RECEIVED;

3 That the DRAFT Olde Sandwich Towne Community Improvement Plan dated
November 2008 BE ADOPTED by By-law for the Olde Sandwich Towne
Community Planning Study area, illustrated in Appendix 'A' attached hereto.
The Olde Sandwich Towne Community Improvement Plan is the study of land
use policy undertaken as a result of Interim Control Bylaw 19-2007 as amended
by By-law 35-2008;

4 That the Olde Sandwich Towne Community Improvement Plan Target Areas
Planning Issues Report dated October 2008 BE ENDORSED;

5 That the DRAFT Supplemental Development and Urban Design Guidelines

dated October 2008 BE ADOPTED BY BY-LAW;

6 That the City of Windsor Official Plan BE AMENDED as shown in Appendix 'B'
to implement the recommendations contained in The Sandwich Heritage
Conservation District Conservation Plan Final Draft Report dated July 2008;

7 That Zoning By-law 8600 BE AMENDED as shown in Appendix 'C' to

implement the recommendations contained in The Sandwich heritage
Conservation District Conservation Plan Final Draft Report dated July 2008;

8 That the City of Windsor Official Plan BE AMENDED as shown in Appendix 'D'
to implement the recommendations contained in DRAFT Olde Sandwich Towne
Community Improvement Plan dated November 2008;

9 That Zoning By-law 8600 BE AMENDED as shown in Appendix 'E' to

implement the recommendations contained in DRAFT Olde Sandwich Towne
Community Improvement Plan dated November 2008;
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10 That the Sandwich Community Improvement Plan Project Area By-Law No.
9724 and the March 1989 Community Improvement Plan Adopted by By-law No.
9725 BE REPEALED.

Carried, Councillors Postma, Halberstadt, Marra and Dilkens voting nay.

Report Number 13878 Z/8581 PAC 1

[pg. 12 - 13]

85. I have already referred to the several by-laws that were passed by City Council on
January 26, 2010 above at paragraphs 6 to 9 of this my affidavit. Those by-laws are the ones
which are subject to this application to quash.

Lack of Prior Notice to Affected Property Owners

86. Even though I am the owner of three relevant properties in the Sandwich Towne area, as
I have deposed to above, I received no prior notice nor was I aware of the fact that the Windsor
Heritage Committee, the Planning Advisory Committee and City Council were considering
passing by-laws such as the designation of parts of Sandwich Towne into a Heritage
Conservation District and a Community Improvement area. As can be seen from the details of
the Heritage District Plan, these designations have a very serious impact on the property rights of
the affected property owners. Under the Heritage District Plan, the following consequences are
imposed on all affected property owners:
a) a new level of bureaucracy: "Heritage Alteration Permits" would be
required for additions to any façade visible from public areas;

b) Heritage Alteration Permits are also required for major alterations to

replacement of features facing the street;

c) approvals would be needed for such things as changing the shingles on

one's house, for alterations or changes to windows, doors, etc.;
 127

d) these permits are required for some work which did not normally require a
building permit;

e) the issuance of Heritage Alteration Permits is a very complex and lengthy

process taking up to two pages of the consultant's report and involves applications
and appearances involving City Council, City Staff and the Windsor Heritage
Committee, plus conformity with the guidelines in the Heritage Plan;

f) structural alterations to the exterior of buildings visible from the street

would not be permitted in residential conversions; and

g) the demolition of existing buildings in the Heritage District is "strongly

discouraged" meaning that a property owner wishing to demolish an old structure
and build a new one, will be "strongly discouraged" or prevented from doing so,
thus requiring maintenance of old buildings in perpetuity.

87. These and other features of the Heritage Conservation District Plan, and the associated
parts of the Community Improvement Plan and the associated changes to the Zoning by-laws and
Official Plan, constitutes a serious erosion of the Sandwich area property owners' property rights.
It may well discourage potential buyers from purchasing our property should we decide to sell it.

88. The first time I became aware of these issues and the impact on my property rights, came
after passage of the questioned by-laws by City Council on January 26, 2009, when a notice of
the passage of the Heritage by-law was delivered by registered mail to me respecting my three
properties in the area.

89. Now shown to me and marked as Exhibit 41 to this my affidavit is a copy of the type of
notice that I received. I do verily believe that this kind of notice was mailed to all affected
property owners in the area.
 128

90. Had I received such a notice prior to the passage of the by-law, I would have exercised
my rights to consult with other property owners in the area and to appear in opposition thereto
before City council.

91. After receiving the aforesaid notice, I began to go door to door. I met Dan Bebbington,
who lives at 377 Rosedale Avenue. We began to canvass property owners and residents by
going door to door in the Sandwich heritage Conservation District.

92. As we canvassed residents in the area, we discovered that people were unaware of what
had preceded the passage of thee by-laws and were firmly in opposition to the effect of them on
their property rights.

93. Now shown to me and marked as Exhibit 42 to this my affidavit is a copy of a letter sent
by Dan Bebbington to Mayor Eddie Francis. In his letter, Mr. Bebbington states:
"…Hilary and I have managed to contact roughly 90% of the property owners within
your newly formed Sandwich Heritage Conservation District, within a two week period.
I personally have been canvassing the area north of Detroit Street and east of Sandwich
Street. There are approximately 150 properties in this area. As I have made contact
with the owners of these properties I have found that the majority of them were not aware
of the studies being performed. Also the majority of these residents and owners have
never been contacted by any member of the Citizens Advisory Group or Dr. Greg
Hanaka for their input into the creation of the Sandwich Heritage Conservation District.

Amendment No. 68, to The Official Plan City of Windsor, Appendix "A", Planning
Advisory Committee meeting on December 3, 2008 references comments made by Dr.
Greg Hanaka. He says "represent the will of the Sandwich citizens" in his first address
to the committee (Page 11 of amendment 68). He further states "that the citizens of
Sandwich Towne are not supportive of the way the Bridge Company has bought up the
homes on Indian Road and allowed them to deteriorate." (Page 19 of amendment 68).
Dr. Greg Hanaka is the Chair of the Citizens Advisory Group and he should be
representing the "will of the property owners."

On a more personal note; I have been the property owner and a resident of 377 Rosedale
Avenue for the last 12 years. I personally feel that my "will" has been incorrectly
represented at this meeting. This leads me to wonder how I may have been
misrepresented at other meetings about issues and topics that I am not aware of. I work
many hours and spend much time out of the country. Prior to this I have been part of the
silent majority. I may have been silent but I am not invisible. I and the residents of this
area should have been contacted. This does not forgive, those who have taken on the
responsibility to represent me, this lack of communication. I pay city taxes & you have
 129

my address. Along with that I have 3 phone numbers and 4 e-mail addresses; there is not
excuse why I have not been informed of this Heritage Study or more importantly the
"presumed" results of the study, within the three years that it has been in progress. I also
believe the citizens should have been personally contacted prior to the creation of the
bylaw. Hilary and I have managed to contact roughly 90% of the property owners within
a two week period and we didn't have the resources which are available to the city. We
are living in a democratic society yet this misrepresentation or assumption of the
desirers of the residents of Sandwich Towne clearly proves otherwise. In light of this
misrepresentation, I request that these bylaws be deferred[sic] until we are properly
represented."
 130

Appeal to OMB

94. The Notice of the passage of the By-law, Exhibit 40 hereto, stipulated that a Notice of
Appeal had to be filed with the City Clerk by April 1, 2009 in order to appeal the by-laws to the
Ontario Municipal Board.

95. Now shown to me and marked as Exhibit 43 to this my affidavit is a copy of the package
of materials that I filed on behalf of the owners or residents of 129 affected property owners.
Each of the property owners appealing signed the appeal forms.

96. A public meeting was held by opponents to the by-laws at the College Avenue
Community Centre on March 18, 2009 to provide a forum for property owners in the District to
obtain information concerning the appeal. It was attended by some 70 people and the media.

97. By letter dated February 23, 2009, the CTC appealed the City By-laws respecting the
Official Plan and Zoning By0law Amendments associated with the Sandwich Heritage
Conservation District Study dated July 2008.

Now shown to me and marked as Exhibit 44 to this my affidavit is a copy of the letter
and attached appeal to the Ontario Municipal Board. The letter states, in part, as follows:
"… proposed Sandwich Heritage Conservation District and the associated policies
subject to this appeal. On January 26, 2009 Council of the City of Windsor adopted
Official Plan Amendment 68 (Zoning By-law 23-2009) to implement the Sandwich
Heritage Conservation District Study, and passed Zoning By-law 24-2009 to add a
supplementary section to the by-law establishing Commercial and Residential Overlay
Zones and regulations for the Sandwich Heritage Conservation District. …

A comprehensive review of the houses along Indian Road demonstrates the impact that
the student housing conversion has had on the debilitation of the character and quality of
the Indian Road area. There are numerous vacant houses that are not in full compliance
with the minimum requirements of the Ontario Building Code or the Ontario Fire Code.
These houses are impacting the character of the area, and represent a potential safety
risk to the public. The houses along Indian Road have reached the end of their useful,
economic life.

It is a misuse of the word "heritage" when applied to the housing of Indian Road. The
designation of t Indian Road as part of the heritage conservation district seems
 131

disingenuous. The inclusion of Indian Road within such a heritage conservation district
means the local residents will be led to believe that it is a historic area because of its
architectural qualifications. This is a misrepresentation. Really, it becomes nothing
more than a matter of integrity and intent: the houses along Indian Road do not meet the
tests imposed on such a designation by the City of Windsor Official Plan or the Ontario
heritage Act.

The houses along Indian Road consist of a mishmash of housing types and styles that are
common to may [many] other (undesignated) neighbourhoods in the Windsor area as
well as to contemporary neighbourhoods in urban centres across south-western Ontario.
Applying the heritage conservation designation to the Indian Road houses perverts the
significance and devolves the importance of real heritage conservation districts in the
City of Windsor and Ontario. The buildings situated along Indian Road and the Detroit
Rive waterfront are of no architectural interest, are not consistent in character, do not
add to the streetscape character and are of no historical relevance.

There is no justification as to why the lands along the Detroit River waterfront and
Indian Toad warrant inclusion in The Sandwich Heritage Conservation District
Conservation plan when in Phase 1 of the Sandwich Heritage Conservation District
Study these lands were examined and determined to not warrant inclusion, nor were they
even identified as an "Area for Further Study and Refinement." … the Sandwich Heritage
Conservation District Plan contradicts Phase 1 of the Heritage Conservation District
Study that was presented to, and adopted by, Windsor City Council.

The Sandwich Heritage Conservation District Conservation Plan outlines several

options for the houses along Indian Road. Thee options range from preservation of all
buildings and vegetation to demolition without building replacement. Several of the
options, including the demolition of the houses contradict with statements made that the
area is architecturally distinct. …"

98. By letter dated February 23, 2009, the CTC appealed the by-laws passed by City Council
respecting amendments to the Official Plan and Zoning By-law amendments associated with the
approval and implementation of the Olde Sandwich Towne Community Improvement Plan.

Now shown to me and marked as Exhibit 45 to this my affidavit is a copy of that letter
and attached Notice of Appeal, to the Ontario Municipal Board. In the letter the CTC notes that:
"The City of Windsor, in adopting and enacting those by-laws for the Olde Sandwich
Towne Area has failed to take into account the safety, security and strategic importance
of the Ambassador Bridge bode crossing are ultra vires the jurisdiction of the City of
Windsor."

and further that:

 132

"… The City of Windsor lacks the jurisdiction to incorporate such statements into a local
planning document."

99. By letter dated February 24, 1999, the CTC appealed By-law 22-2009 designating
properties within a Heritage Conservation District.

Now shown to me and marked as Exhibit 46 to this my affidavit is a true copy of that
letter.

Halberstadt Comment

100. Alan Halberstadt is a City Council member for Ward 3. In the February, 2009 edition of
"Biz-X Magazine" he made the following statements in and editorial that he write that magazine,
which is attached hereto and marked as Exhibit 47 to this my affidavit:
"…You might expect that this turn of events would set off widespread sentiments of
euphoria. Unfortunately, the celebrations were muted by a nasty sideshow between the
Canadian Transit Company (CTC), owners of the Ambassador Bridge. and the City
Council majority.

Council, in a 6-4 vote, designated some 53 boarded up CTC-owned homes on Indian

Road as heritage properties that cannot be demolished without a plan to rebuild them.
The heritage value of the house is dubious, and many residents in the neighbourhood
concur with the Bridge's contention that the city has trumped up the heritage argument to
thwart CTC's plans to build a span to replace/twin its current octogenarian structure.

… At this writing, I fully expect the Canadian Transit Company to file an appeal to the
Ontario Municipal Board on the Sandwich Towne designations. Following that, a law
suit against the city would not be unexpected, and could tie things up for years.

The CTC has no intention of rebuilding the Indian Road homes and will continue to let
them rot. This will further ghettoize the residential neighbourhoods, ultimately
triggering an expropriation fight with the city. …

This current circumstance seems to be fine with the Council majority, who are more
intent on staring down the CTC than saving Sandwich Towne's southwest district.

Council rejected an offer from CTC on Jan. 12th to join a partnership with the city, the
University of Windsor Green Corridor group and neighbourhood stakeholders, to flesh
out and finalize a green buffer plan to replace the Indian Road homes.

The plan, conceived by the highly-respected Green Corridor group, calls for wetlands
 133

stormwater remediation, an eco parking lot, a green gateway opportunity and bike paths
and berms."
 134

Council Demands Control over Future Development of Land in Perpetuity

101. At the Council meeting fro March 2, 2009, the following resolution was passed by City
Council:
"Communication No. 33:
Moved by Councillor Jones, seconded by Councillor Hatfield,
M89-2009 That the correspondence from Dan Stamper, President, Canadian
Transit Company, dated February 26, 2009 respecting "Vacant Edison Street House
Fire" BE RECEIVED, and further, that a letter of invitation BE EXTENDED to the
Canadian Transit Company to submit a formal and detailed plan for the property it owns
surrounding the bridge plaza, and for its proposed Green Corridor project, along with
stipulating definitive timelines for implementation and ongoing upkeep and maintenance,
together with sources of funding in support of their plans, all of which are to be enacted
in perpetuity.
Carried."

Council Grants Permission to Demolish Re: Other lands in Area

102. At a City Council meeting March 9, 2009, Council entertained and granted a request to
demolish an existing building made by the Buschante Development Group.

Now shown to me and marked as Exhibit 48 to this my affidavit is a copy of a transcript

of part of the Council meeting pertaining to that request.

Public Meetings of Property Owners Convened: Hanaka Statements

103. As I have deposed to above in this my affidavit, I chaired a public meeting of property
owners at the College Avenue Community Centre on March 18, 2009, to discuss the then
proposed appeal to the Ontario Municipal Board. At that time, many property owners spoke out
against the erosion of their property rights and their frustration with boarded up homes on Indian
Road and Edison Street. Many of them expressed their fears of bureaucratic red tape and
significant costs for eve minor improvements to their homes which would have to be approved
by Council. Some persons present did speak out in support of the heritage designation. Notably,
Dr. Gregg Hanaka, who served on the Steering Committee for the Heritage Designation and was
Chairperson for the Citizen Advisory Group for the Community Improvement Plan, said that, the
heritage designation was a sacrifice residents had to make to stop the Ambassador Bridge.
 135

The Mayor’s “5 Point Plan”

104. On May 21, 2009, Dan Bebbington and I met with Mayor Frances and Councillors
Caroline Postma, Ron Jones and Ken Lewenza. At that time, the Mayor proposed a five point
plan to solve the problems associated with the Indian Road boarded up houses. That plan
included the following points:
i) The Bridge would come forth with details of the Green Corridor Plan
which they referred to at a Council meeting on June 11, 2007.

ii) The City would review the Green Corridor details and advise the Bridge of
the City's requirements.

iii) An agreement in writing would be entered into between the City and the
Bridge concerning implementation of the Green Corridor Plan including
time limits.

iv) The agreement would be ratified by City Council.

v) The City would issue demolition permits for buildings on Indian Road
concerned with the implementation of the Green Corridor Plan.

105. Now shown to me and marked as Exhibit 49 to this my affidavit is a copy of an email
and my notes documenting that meeting.

Petition to City Council

106. In May, 2009, Dan Bebbington and I organized a petition calling upon City Council to
demolish the boarded up houses on Indian Road and Edison Street. Over 230 residents of the
Sandwich area signed the petition. It was submitted by me to City Council.
 136

107. At the May 25, 2009 City Council meeting, Councillor Postma advised that she was
withdrawing the following Notice of Motion:
"Councillor Postma's Notice of Motion

Councillor Postma advises that she is withdrawing the following motion that she gave
notice for at the May 11, 2009 meeting of Council, advising that the petitioners have
agreed to continue meeting with the Ward Councillors and the Ambassador Bridge:

Moved by Councillor Postma, seconded by Councillor .

Whereas, the Ambassador Bridge Company owns approximately 75 properties

along Indian, Edison, College, Bloomfield, Felix and Mill; and

Whereas, the properties have become an extreme eyesore and a hazard to the
neighbourhood, and the area is currently under a demolition freeze; and

Whereas, the residents and property owners have handed in a petition to

demolish these homes with over 230 names on it; and

Whereas, a letter of invitation was sent to the Ambassador Bridge by the City in
March inviting them to present a greening plan or green corridor for the homes
along the Bridge and the City has never defined an acceptable greening plan for
all of the properties owned by the Bridge company;

Therefore be it resolved, that Mayor and City Council meet with the Ambassador
Bridge Company to discuss acceptable plans for their 75 properties throughout
Sandwich Town and clearly define greening plans for the properties to ensure
the residents are no longer living near boarded up abandoned homes and restore
the safety, security and aesthetic looks of their neighbourhood."

108. At this point, I was rather hopeful that a solution to the Boarded Up Houses problem
could be worked out. However, that was not to be. The problem was this: in a meeting I had
with Councillor Jones in September 2009, it became clear that he and council was looking for
some sort of agreement from CTC that would bind the Ambassador Bridge in perpetuity to a
specific future use of their property along Indian Road and Edison Street. He wanted a statement
as to what he future use of the property would be and when that use would commence. I asked
him what by-law was the authority for such a condition, which I viewed as a sort of restrictive
covenant. He could not say, but promised to email me the by-law.

Now shown to me and marked as Exhibit 50 to this my affidavit is a copy of an email I

sent to the other BUHDAG members detailing my discussions with Mr. Jones.
137
 138

Conditions Sought by Council Unlawful

109. The condition that these Council members and the Mayor were seeking seemed to me
unreasonable. What the City was asking CTC to do, as a condition of allowing the demolition of
the boarded up houses on CTC property, was that CTC bind itself in the future, in perpetuity, not
to develop the property otherwise than in accordance with the proposed "memorandum of
understanding". I became concerned as to whether or not this condition was one which could be
sought or imposed by a municipal government under its statutory powers. It was clear that the
property owners and residents who make up BUHDAG were being held hostage by a dispute
between the City, who was refusing to entertain or issue building permits, unless CTC gave up
and bound all its rights to develop these properties in the future, and the CTC who was seeking
simply to demolish these houses, grade and seed the lots and keep them as a buffer zone for the
future planned replacement span for the existing bridge. The impasse, and particularly Council's
imposition of the interim control and demolition control by-laws in the first place, had created an
intolerable situation for property owners in the area. Something had to be done to break the
impasse.

Requests for Demolition Shows Discrimination

110. I have reviewed a history of requests to City Council for demolition of buildings in the
Sandwich are and other areas under demolition control. The following chart sets out a history of
those demolition requests:
History of Demolition Requests - Sandwich Area & Other Areas Under Demolition Control

Date Request

June 11, 2007 Request of Demolition - 686, 718, 738, 750, 778 and 774 Indian Road - Denied
Councillors Postma, Dilkens and Brister voting in favour of demolition

June 11, 2007 Replacement Span Presentation before Council - 10 minute limitation
- 10 minute presentation permitted. Mayor Francis refused to allow an extension of time
- Green corridor model brought to Council

Feb. 25, 2008 Extension of Interim Control By-law 19-2007 and Demolition Control By-law 20-
2007
 139

April 14, 2008 Council establishes Process for Building and Demolition Permit Issuance
- Administration recommends that all requests for exemption form the by-laws be reviewed in
accordance with the purpose of the by-laws and could include but are not limited to:
: Emergency order issued under the Building Code
: Situations where a fire may have occurred
: Imminent danger to public safety
: Interior renovations or alterations with no heritage or archeological impacts

May 12, 2008 Request for Demolition - 2919 Connelly Street (Kevin Flood Property) - Deferred
- No discussion

May 20, 2008 Request for Demolition - 2919 Donnelly Street (Kevin Flood Property) - Granted
- Kevin Flood informed Council that he has no intention of building right away and that the
building cannot be rehabilitated.
- City Building Officials conclude that the building is structurally sound and could be
rehabilitated.
- Hatfield indicates that he rehabilitation of the building will be costly and that the lot should be
cleared up to avoid debris being dumped in the area.

Request for Demolition - 591 St. Joseph Street - Granted

- Matt Buschman request to demolish to construct a fourplex unit for student housing

Dec. 8, 2008 Request for Demolition 772 Indian Road - Denied

- Fire damaged house on Indian Road
- Engineering report from GS engineering indicating it would cost more to rehabilitate than to
demolish and rebuild
- This represents the 20th request for a demolition permit in the area approximately half of the 20
requests were filed by CTC and all were denied
- The building department stated that 772 Indian Road had been subject to a fire and water
damage - concluded that the building is not structurally unsound and can be
rehabilitated - acknowledged that it would e costly to rehabilitate
- Hatfield's comments focused on increased noise that would result from the removal of the
building
- Halberstadt in support of the demolition and the greening of the area. Indicates that the refusal
would be inconsistent with Council's decision on the Flood property
- Jones' requests a greening plan be submitted for the entire area

Dec. 22, 2008 Mayor Francis discusses demolition on Face-to-Face with John Fairley
- Mayor Francis refers to discussions with the Ambassador Bridge about the houses along Indian
Road. Indicates that he met with Ambassador Bridge on several occasions and that the
Mayor and Council have consistently said "show us the plan" for the entire area

Jan. 26, 2009 Request for Demolition 666 - 668 Chatham Street East - Denied
- Property located in Glengarry-Marenteet [sic] Neighbourhood
- City's comments relating to the purpose of the Property Standards by-law and Building Code
Act is to ensure the safety and security. For that reason, the security aspect has
required the Buildings Department to require the windows be boarded upon vacant
houses. "But for empty buildings, because of the sheer number of issues we have with
 140

vandalism, to secure the neighbourhood, to ensure the safety of residents living in the
area, so it precludes people from going in, breaking through the Windsor, starting fires
and doing other kinds of nuisances that create problems for the neighbourhood."

Feb. 26, 2009 Ltr. to Mayor and Members of Council - Request to Demolish Edison Road
- On Sunday, February 22, 2009 Edison Road boarded up house subject to an accidental fire
-CTC requests that the City of Windsor work cooperatively with CTC to resolve the issues
relating to the board up houses
- Motion by Council asking the bridge to prepare a "greening plan" and go before Council

March 9, 2009 Request for Demolition 556-558 Chippawa - Granted

- Proposal to demolish and construction a 4-unit duplex building

March 18, 2009 Ltr to Mayor and Members of Council - Request to Demolish 6-storey apartment
building
- Request for demolition of 6-storey apartment building located at the corner of Mill Street and
Felix Ave
- Letter never circulated or included as a council communication

March 23, 2009 Request for Demolition - 547 Dougall - Granted

- Administration concluded that building difficult to rehabilitate because of extensive fire damage
- Demolished for safety reasons because the fire made it an unsafe building
- Condition that all debris re removed immediately from the site and that it be graded and
landscaping proceed within a period of one month.

March 30, 2009 Request for Demolition 2605 King Street - Granted
- Claim sewage and mould issue
- Administration considers the building to be structurally sound and can be rehabilitated at a low
cost
- Bank and CMHC who holds the mortgage is requesting that it be demolished as they cannot sell
the house due to mould issues
- Trow Engineering report concludes that the sewage in the basement caused damage
- Conclude that it is not a sellable house.

111. It therefore appears that, in regards to past request for demolition permits, there is a clear
bias against any request made by CTC since June 2007. That bias against CTC is directly
impacting the quality of life of people who own or reside in the area of these boarded up houses.
Something had to be done to address this issue with City Council.

112. I sought a legal opinion. I obtained it from our present lawyer. The basis of that opinion
has become the grounds on which we have brought this application to quash the specified by-
laws.
 141

CTC Prepared to Demolish Boarded-Up Houses

113. In November of 2009, I went to the CTC and spoke to them about the boarded up houses.
I asked the CTC if it were permitted by the City of Windsor to demolish the boarded up houses it
owned, could it do so and what were its conditions, if any. I received a letter from Dan Stamper,
President of the CTC dated November 23, 2009.

Now shown to me and marked as Exhibit 51 to this my affidavit, is a copy of that letter.
In his letter, Mr. Stamper states:
"You have contacted us to ask when the Canadian Transit Company (CTC) would initiate
the demolition of houses if permitted by the City of Windsor. As indicated in our
discussions CTC would initiate immediate demolition of the boarded up houses as soon
as permitted. The grassing of the area is dependant on weather conditions and would be
initiated as soon as practicable.

Contrary to statements being made in the Windsor Star, CTC has submitted numerous
demolition permit applications that were denied by Windsor City Council.

On June 11, 2007 CTC's request for demolition of 686, 718, 738, 750, 778 and 774
Indian Road was denied. On December 8, 2008 CTC requested demolition of 772 Indian
Road that was damaged due to a fire that was also denied by Windsor City Council. On
February 26, 2009 we sent a letter requesting that Windsor City Council permit the
demolition of a home on Edison Road that was subject to an accidental fire. This letter
was not considered by Windsor City Council. Further on March 18, 2009, we again
wrote to Windsor City Council requesting demolition of the 6-storey apartment building
located at the corner of Mill and Felix Streets. This letter was never circulated nor was
it included as a Council communication.

The City of Windsor has refused to consider any requests for demolition submitted by
CTC in the Sandwich Area. However, while refusing the demolition requests of CTC, the
City of Windsor has issued demolition permits for 2919 Donnelly Street, 592 Joseph
Street, 556-558 Chippawa Street, 547 Dougall and 2605 King Street."

First OMB Pre-Hearing Conference and Mediation Discussions

140. On Tuesday, December 1, 2009, we appeared along with our legal counsel before the
Ontario Municipal Board at a pre-hearing conference. At the pre-hearing conference, we
requested and received party status on the OMB appeal respecting the Heritage District
Designation and participant status on the appeals lodged by the CTC and others concerning the
Community Improvement By-laws and other associated Official Plan and Zoning By-law
 142

amendments respecting Olde Sandwich Towne.

Now shown to me and marked as Exhibit 52 to this my affidavit is a copy of the Order
issued by Mr. Denhez, Board Member, respecting that pre-hearing conference.

115. One of the things that was discussed at the pre-hearing was the possibility of the parties,
including me and the BUHDAG group, of participating in a mediation concerning the boarded
up houses and the OMB appeals. On our part, we were willing to engage in a mediation process
provided that it took place as soon as possible. A March time frame was discussed, but no
definite dates were arranged. We were asked to defer our request to appear before Council on
December 7, 2009.

116. In order to facilitate mediation in accordance with the request which had been made, and
in order to show good faith, I asked my legal counsel to write a letter to the City Clerk on
December 3, 2009, asking that Councillor Postma's motion and our request to appear as a
delegation concerning it be deferred to Monday, December 14, 2009 in order to allow for more
discussion concerning the request for mediation.

Now shown to me and marked as Exhibit 53 to this my affidavit is a copy of Mr.

Colautti's letter of December 3, 2009.

Mayor Francis Public Letter to CTC Published in Local Media

117. Unfortunately, at this point, Mayor Francis did something that led us to seriously
question the good faith of the City in resolving the boarded up houses. Mayor Francis wrote a
letter to the CTC on December 3, 2009. Apparently, this letter was sent and published in The
Windsor Star before it was sent to CTC. In this letter, the Mayor states, in part:
"… For the reasons set out below it is important that CTC commit by December 16, 2009
that CTC will, by mid-January, meet with Council to provide its plans and its proposal to
implement them.

It is important that CTC provide its plans and implementation commitments given that
 143

CTC has continued to acquire homes in Olde Sandwich Towne. We understand that as of
the present time CTC has acquired many residential properties along the west side of
Indian Road, and residential properties on Rosedale Avenue, and on Mill, Peter,
Wyandotte, Donnelly, Patricia, Felix and Edison Streets.

It is also important that CTC provide its plans and implementation commitments in the
very near future given that residents of Olde Sandwich Towne are increasingly upset
with the negative impacts they incur as a result of CTC choosing to abandon and board
up the majority of these CTC owned houses. The abandoned condition of these houses
has had a destabilizing effect on the neighbourhood. Another term that come to mind is
"blockbusting". …

CTC ownership of these properties has created blight in this neighbourhood in the view
of City planners, and this blight has obviously negative impacts for property values,
property assessment and the ability of this area to function in future as a viable
residential neighbourhood. Moreover, letters from area residents to Council complain
that the abandoned homes are creating a public nuisance: the abandoned homes are
causing area residents serious concerns for their health and safety., due to increased
vermin sheltering in the abandoned houses., he abandoned houses sheltering vagrants
who are seen as a threat to residents, and the increased risk of fire through illegal
occupancy of the abandoned homes by vagrants (in spite of security patrols by CTC).

Not surprisingly, area residents have asked City Council to take steps to have this
unacceptable situation resolved. Some residents suggest that all these problems could be
solved by Council issuing demolition permits to allow CTC to go forward with its
redevelopment plans that they believe are being held up by the City's planning controls.

However, City Council has not held up any redevelopment proposals by CTC. Rather,
CTC has chosen to not provide the City with any specific redevelopment plans for the
City's consideration. If CTC has plans for these properties that would involve anything
other than continuing the already permitted residential use, it must seek an amendment
to the Official Plan. Again, CTC has not made any application to the City to amend the
Official Plan.

Some other residents appear to believe that, regardless of any CTC plans, it would be
best to have all of CTC's abandoned home immediately demolished, without worrying
about the consequences of the area.

However, City planners are concerned that demolition without appropriate commitment
by the CTC to replace the housing stock or undertake other appropriate uses will result
in much worse than "blockbusting". They point to areas around the Detroit side of the
Ambassador Bridge where the Bridge Company/DIBC bought up and the abandoned
homes, subsequently demolished, which resulted in desolate and unfortunate
"moonscape", a result which Windsor ahs no desire to replicate.

City planners are concerned that demolition of significant areas of residential homes will
not solve, but actually exacerbate, safety issue for remaining residents, by reducing the
number of people who can monitor their neighbourhood and produce a "no man's land"
much worse than the existing boarded up homes. They are also concerned that
 144

demolition of houses on Indian Road without any replacement or buffering could expose
remaining residents along Indian Road and Rosedale to greater noise, air contaminants
and fumes from the Ambassador Bridge traffic. City planners are also concerned that
the abandonment of homes could potentially destroy significant neighbourhood heritage
resources.

… CTC has never provided the City with specific plans or commitments regarding its
purchase and abandonment of the increasing numbers of residential properties. Does
CTC propose to replace existing housing? If not, what else does CTC propose?

In short, the City's demolition control by-law has not held up any CTC plans to redevelop
the abandoned homes, because CTC has not made any specific proposals for such action
or taken any steps to indicate it is seriously interested in any redevelopment. …

In closing, I am asking on behalf of City Council that CTC forthwith commit to publicly
present its plans for redevelopment of its abandoned homes in this neighbourhood,
including CTC's plans for a Green Corridor or other land use features, and that CTC's
timing or doing so and actions required to implement these plans be included. …"

Now shown to me and marked as Exhibit 54 to this my affidavit is a copy of that letter.

118. In an article in The Windsor Star dated December 4, 2009, Mayor Francis is quoted as
stating "This is one final attempt. If the Ambassador Bridge doesn't want to sit down with us and
work on a solution … we will not stand by and see a neighbourhood destroyed."

Now shown to me and marked as Exhibit 55 to this my affidavit is a copy of that article.

119. On December 7, 2009, the CTC responded to the Mayor's letter. In his letter, Mr.
Stamper, president of the Detroit International Bridge Company states, in part that:
"We would like to remind you that CTC did make a presentation to Windsor City Council
at which time we had our consultants from the Green Corridor with a model of our
proposal. Council refused to extend time for our presentation and refused to hear form
our consultants."

And further that:

“The Canadian Transit Company (“CTC”) appealed seven (7) by-laws adopted by
Windsor City Council on January 26, 2009 to the Ontario Municipal Board. These seven
by-laws implement the Olde Sandwich Towne Community Improvement Plan and
Sandwich Heritage Conservation District Study along with the interim control by-law
prohibits CTC from demolishing the boarded up houses and grassing and grading the
area. We note that prior to these by-laws being adopted, the City of Windsor approved
 145

numerous demolition permits brought by the CTC in this exact area. Notwithstanding
the adoption of these by-laws and their appeal to the Ontario Municipal Board
(“OMB”), the City has proceeded to grant numerous exemptions to these by-laws
permitting the demolition of houses absent requirement that another structure be
constructed.

On Tuesday December 1, 2009 at 11:00 a.m. in the City of Windsor Council Chambers,
the OMB held a prehearing relating to the numerous appeals filed on the seven by-laws,.
At that prehearing, the City’s legal counsel, Mr. Chris Williams from Aird & Berlis
agreed that the parties would cooperatively establish an issues list by the next
prehearing scheduled for March 23, 2010. The parties agreed that the OMB hearing
would be scheduled for nineteen days starting September 7th to October 1st, 2010. The
OMB member Mr. Denhez clearly advised the City that by agreeing to this timeline the
status quo, being the existence of the boarded-up houses, would remain until the decision
of the OMB was rendered after the hearing starting September 2010. The City of
Windsor’s legal counsel agreed to the timeline established by the OMB.

At the prehearing, on December 1, 2009, a representative from CTC asked the City of
Windsor’s in-house legal counsel if there was a possibility that CTC and the City of
Windsor could agree to engage in mediation with a mediator agreed upon through the
OMB process once the issues had been established, The City’s legal counsel requested
that the CTC discuss the possibility of mediation with representatives from BUHDAG
group and requested that CTC ask this group not to appear at City Council on December
7, 2009.

In good faith CTC approached legal counsel and representatives for BUHDAG to
discuss the possibility of engaging in mediation with the City and CTC through the OMB
process. This is what prompted BUHDAG to defer their appearance at City Council for
a one week period to consider the benefits of an OMB endorsed mediation.
Unfortunately, the City’s letter along with statements made by the City in the press
merely two days after the OMB prehearing questions the City’s motivation in requesting
that CTC discuss mediation with BUHDAG.

We remain optimistic that the City will acknowledge CTC’s legal rights to appeal the
seven by-laws as they apply to its lands and follow the proper statutory process in
resolving the issues.”

Now shown to me and marked as Exhibit 56 to this my affidavit is a copy of that letter.

Going Back to City Council

120. I believe that Mayor Francis' letter was not written in good faith. As I have deposed to at
great length above, the impasse had been created by City Council itself in passing the interim
control and demolition control by-laws and the Heritage District Designation, CIP, and
 146

associated Official Plan and Zoning Bylaw amendments. The CTC has always indicated its
willingness to tear down these houses and grade and seed the lots. CTC attempted to present its
plans to City Council in June 2007, but was rebuffed. It was clearly the City's actions that were
preventing this from happening, because the City was insisting on a condition concerning
restricting further development in perpetuity. I felt we had to get the matter back before Council
so we could tell City Council that they were responsible for this state of affairs.

121. Consequently, we requested to appear again as a delegation before City Council on

December 7, 2009. I instructed our legal counsel to send a letter dated December 4, 2009 to the
City Clerk, again asking that we be put on as a delegation to appear before City Council.

Now shown to me and marked as Exhibit 57 to this my affidavit is a copy of Mr.

Colautti's letter, which states in part:
"In view of the Mayor's provocative, unwarranted and bad faith statements in the
Windsor Star this morning, I am instructed to withdraw our request for deferment and
ask that this matter be put on the agenda Monday night. I wish to advise that the
residents of the BUHDAG group will be fully prepared to proceed and appear before
counsel on Monday night."

122. On December 7, 2009, we again attempted to appear before Council. We asked to be

listed as a delegation on Councillor Postma's Notice of Motion. At that time, the City Solicitor
was requested to advise on Councillor Postma's motion seeking to rescind the Demolition
Control By-law 20-2007 to permit demolition of the boarded up houses. The City Solicitor
advised that, since there were pending appeals to Heritage District, CIP, Official Plan and
associated Zoning By-law amendments to the OMB, that it would not be advisable and no useful
purpose would be served by hearing from our group. Our legal counsel was asked whether our
group was prepared to participate in a meditation, to which he replied yes.

Now shown to me and marked as Exhibit 58 to this my affidavit is a copy of page 8 of

the Council Minutes of December 7, 2009 respecting that item.

123. Council voted to defer Councillor Postma's Notice of Motion to a time period after
 147

mediation. The following is the text of Councillor Postma's Notice of Motion and Council's
deferral of same:
"… Moved by Councillor Halberstadt, seconded by Councillor Lewenza,
M413-2009 That the following Notice of Motion presented by Councillor Postma BE
DEFERRED to a time period after mediation on this issue respecting the appeals before
the Ontario Municipal Board:

WHEREAS there are boarded up houses along Indian Road, Rosedale, Edison,
Mill, Felix, Bloomfield, Donnelly, College Av., Brock St., Peter St. and University W.;
and
WHEREAS the properties are an extreme eyesore and a hazard to the
neighbourhood, and the area is currently under a demolition freeze; and
WHEREAS the residents and property owners have handed in a petition to
demolish these homes with over 230 names on it;
THEREFORE BE IT RESOLVED that the Mayor and Council agree to
RESCIND Demolition Control By-law 20-2007 to permit demolition.

Carried.
Councillors Postma, Hatfield and Marra voting nay."

Report to Council on Means to Control Blight

124. On January 4, 2010, a report was made to City Council by the City Solicitor commenting
on a legal opinion which the City had received from external counsel, Mr. Stanley Makuch from
the firm of Cassels, Brock, concerning the issue of urban blight.

Now shown to me and marked as Exhibit 59 to this my affidavit is a copy of the staff
report from the City Solicitor to Council on January 4, 2010 with attached letter from Cassels
Brock dated November 26, 2008 and an attached Appendix "B" being administrative comments
about that letter.

125. In the Cassels, Brock opinion letter, Appendix "A" to the City Solicitor's report, the
author, Stanly Makuch, makes the following statements:
"B. THE PROBLEM

The problem of vacant and abandoned properties is not a unique one, although it may
not be as common in Canadian as in American cities. It is, basically, a problem of
vacant land and buildings not being used. This failure to use properties for the purposes
 148

for which they were constructed can cause numerous problems including: (10 wasted
resources and lost revenue; (2) declining property values; (3) adverse effects on
community and neighbourhood aesthetics; (4) adverse effects on public heath and safety
due to rodent infestation, fires and toxic waste; and (5) the creation of sites for illegal
activity. …

… There may well be numerous causes, I am informed, for example: that a desire by
some to improve the access to the Ambassador Bridge, (the merits of which is clearly
beyond the scope of this opinion) results in speculation with respect to properties near
the Bridge which in turn results in blight; …
[pgs. 1 - 2]

… in a system of private ownership, there is a serious tension between the public interest
in preventing blight and the private property owners' right to use their property as they
wish.

Our planning system is largely based on the premise that owners wish to benefit from
their property and use it, rather than leave it in an unproductive state. Therefore, the
decision about how to use their lands is generally theirs to make unless they are
constructing new buildings or proposing new uses.

The Planning Act

Zoning by-laws assume someone will wish to develop his/her land and thus, place largely
negative restrictions on land use to prevent adverse impacts. There is no basis in zoning
to regulate land if there is no action taken to use or develop it. Similarly, more detailed
planning requirements, such as site plan control under s. 41 of the Planning act (the
"Act") are dependent on persons developing their land, and using it for new, more
productive, purposes. … that section only comes into play if development occurs, which
is defined in part in s. 41(1) as "the construction, erection or placing of one or more
buildings or structures on land or the making of an addition or alternation to a building
or structure which has the effect of substantially increasing the size or usability thereof
…". The appearance of land or buildings, landscaping, garbage storage, and parking
for a building cannot be controlled unless development is occurring.(Emphasis added)

This is reflected appropriately in the City of Windsor's Official Plan, which has
numerous provisions referring to the policies to be applied when a "proponent"
"proposes" to develop. This is very sensible and predictable given the regulatory tools
found in the Act. Unfortunately, such policies do not prevent blight as they rely on
individuals proposing to develop and not on those individuals simply allowing property
to lie in a state of "non-use or abandonment".

Moreover, because of private property rights, the Act focuses on a process of procedural
safeguards and appeals, which make it very difficult to implement controls to prevent
blight even where some authority is given to do so.

There are only two provisions in the Act specifically directed at the control of land use
when development is not occurring. One is s. 28, which provides for a Community
 149

Improvement Plan to be adopted and allows positive action to be taken by a municipality

to acquire, develop and sell property in accordance with at Plan. But the procedural
safeguards in the provisions related to a Community Improvement Plan make its use
slow and cumbersome. …

The other section is the demolition control provisions of s. 33. This provision is limited
in scope, in that it can only prevent demolition of residential buildings where a building
permit for a replacement building ahs not been obtained, and any application for a
demolition permit acts as a stay in any proceedings under the Building Code Act
related to property standards and maintenance. Therefore, this section is of very limited
use and cannot be used to prevent abandonment and non-use. (Emphasis added)

The Building Code

There are also provisions under the Building Code Act for action to be taken respecting
unsafe or dangerous buildings and respecting property standards. With respect to
unsafe or dangerous buildings the provisions found in s. 15.9 and 15.10 or limited to
when: (1) a building is unsafe, that is, structurally inadequate or when it is hazardous
to persons using it, persons outside it or those whose access is not prevented. An order
may be issued requiring the building to be renovated, repaired or demolished or
requiring any other action necessary to protect the public; or (2) persons are in
immediate danger. An order can be issued to eliminate the danger. This authority does
not solve the problem of vacant and abandoned buildings unless they create a hazard
or immediate danger to human life and, in some ways, exacerbates the problem by
allowing for the boarding up of unsafe or dangerous buildings so that they are no
longer a danger to the public and are unoccupied. (Emphasis added)

… property standards are found in s. 15.1 - 15.8. … The use of property standards is
indeed a very slow process, in my experience, and requires time consuming inspections
and other administrative obligations, as well as court appeals, with the result that the
property standards provisions are not very helpful in preventing blight as it can occur
and spread quickly and widely.

The tension between public and private interest manifests itself in other ways besides:
(1) the failure of planning legislation to grant authority to municipalities to control the
"non-use" of land when development is not being undertaken; and (2) the requirement of
significant and time consuming procedural safeguards, which add substantially to the
cost of enforcement and reduces the efficiency of any programme. …

… The demolition of blighted building merely exacerbates the problem as significant

areas can be rendered vacant, which contributes to the social and economic
degeneration of an area. Moreover, the landscaping of empty lots does not address the
issues of safety, social cohesion and loss of tax revenue. The problem is one that
requires much more than the power to demolish, as indeed, virtually all American cities,
which have addressed the problem, have found.
[ pgs. 3 - 6]

3. Private Property Rights

 150

… This can be done by providing for: determination by a City official as to whether a

property is blighted; the ability of the City to clean up, repair and maintain the property;
and the right of the City to take title to the property from the last registered owner within
a short period of time. this can be done with limited appeal rights, which still meet the
standards of fairness and natural justice. After this has been done, the City should be
able to deal with the property as it wishes.

… the City's Official Plan ahs numerous policies recognizing and supporting the need to
take action against blight, including the first basic policy of the Plan "Developing and
Strengthening Neighbourhoods is the foundation for Land Use Planning in Windsor". …

Aside from the issue of appeals, there is the issue of compensation to the owner for the
taking of the property. It is difficult at this time to determine if compensation is
necessary or appropriate. It can be argued that since the property is vacant and
abandoned, that it is worthless and no compensation should be paid. On the other hand,
if the property is being held for speculative reasons, it may well have significant value. n
my opinion, the provisions of the Expropriations act would apply so that the owner could
seek the opportunity for hearing of necessity and a hearing respecting the termination of
the value should the owner so desire. …
[ pgs. 10 - 11]

E. LEGAL AUTHORITY FOR THE BY-LAW

In my view, virtually all of the requisite authority for the City to enact the proposed by-
law may be found in the Municipal Act, 2001, while other aspects of the proposed by-law
may require the enactment of provincial legislation to specifically address those issues.
…

It is possible to argue that there is sufficient authority for almost all of the provisions of
the proposed by-law provided in the general municipal powers set out in the Municipal
Act sections 8 through 10 and the fee provisions ins. 391. … posers have been strictly
interpreted, and unless a specific poser was provided for in the enabling legislation, the
action taken by a municipality was found to be ultra vires, or outside of municipal
authority. …

The Municipal Act provides in s. 8(1) that "the powers of a municipality … shall be
interpreted broadly so as to confer broad authority on the municipality to enable the
municipality to govern its affairs as is considers appropriate and to enhance the
municipality's ability to respond to municipal issues". … s. 10 of the Municipal Act. that
section provides that a single tier municipality "may provide any service or thing the
municipality considers necessary or desirable for the public" and "may pass a by-law
respecting … [the] economic, social and environmental well-being of the municipality
[and the] health safety and well-being of persons". The prevention and amelioration of
blight would certainly seem to be a purpose which falls within the purview of this section.

… broad powers in the Municipal Act should be interpreted to allow a municipality to

address the issue of urban blight.
 151

[ pgs. 11 - 12]

… It is clear that the City has the authority to acquire land and thus expropriate land
under the Expropriations Act and, therefore, can take title to blighted land. …
[ pg. 13]

126. In the Administrative Comments in Appendix "B", the following statements appear:
"… there was little administrative support for the solutions as proposed by the Makuch
Report and draft by-law. …
[ pg. 1]

… The Makuch Report notes on p. 3 that the 'planning system is largely based on the
premise that owners wish to benefit from their property and use it" and also that "there is
no basis in zoning to regulate land if there is no action taken to develop it.'

Comments

Agree with the comments in the Makuch Report that the planning Act does not provide
municipalities with tools to control non-use of property.

Agree with comments that using community Improvement Plan provisions of the
Planning Act can be a slow and cumbersome process.
[ pg. 2]

(3) Flexibility for City to take action

(a) On p. 8 of the Makuch Report there is a suggestion that the program provide the
City with power to take various actions such as repair and maintenance to standards but
that this be separate from the Property Standards B-law or Building Code.

Comments

… s. 15.4 of the Building Code Act specifically provides the municipality with exactly
these powers once a property standards order has been confirmed and the work has not
been done.

…s. 15.4 of the Building Code Act provides the municipality with the right to enter the
property without a warrant, indicates that there is no liability to municipality for the
repairs or demolition done pursuant to the order and allows the costs of the work to be
added to taxes, and forma lien on the property with priority lien status.

(b) On p. 8 of the Makuch Report there is a suggestion that the City prohibit
demolition of privately owned buildings.

Comments
 152

There is no legislative authority for such a suggestion. Furthermore the Makuch Report
does not suggest that the City obtain such authority.

Currently there is limited legislative authority for the prohibition of demolition of

buildings in the Planning Act. S. 33 of the Planning Act authorizes municipalities to
designate areas of the municipality as areas of demolition. … demolition of residential
property only, in those areas is prohibited unless the council approves the demolition. S.
33 of the Planning Act does not apply commercial, industrial and institutional buildings.

(c) On p. 9 the Makuch Report suggests that the City take title to the property,
demolish it, and dispose of it or use it for any purpose.

Comments

…The question of whether blight is a municipal purpose for the purposes of the
Expropriations Act, has not been tested before the courts. …

Demolition of buildings over large areas of land causes its own problems. Large
expanses of vacant lands in the urban setting has a sterilizing effect on the subject lands
and the surrounding lands.

The rehabilitation rather than demolition of buildings is a preferred solution from a

municipal perspective. It may cost less to rehabilitate a building, it preserves the
municipal tax assessment base and preserves capacity in the landfill.
[ pgs. 4 - 5]

Comments

Although this Makuch Report suggests that the authority of the municipality to pass an
anti-blight by-law is found in the Municipal Act, the municipal taking of private property
is not governed by the Municipal Act. The municipal taking of private property is
governed by the provisions of the Expropriations Act. The process under the
Expropriations Act is neither quick nor inexpensive. It also requires a municipal
purpose for the taking.

Furthermore the Municipal Act does not authorize the municipal taking of private
property as a penalty for the contravention of a municipal by-law.

Also on p. 10 under this heading the Makuch Report indicates that 'in the united
Kingdom, for example, municipalities can, under Empty Dwelling Management Orders
('EDMO's') seize a property if it is left empty more than six months" (Housing Act, Ch.
34, (Eng.)).

Comments

There is no such comparable legislation in Ontario. Nor does the Makuch Report
suggest that Windsor seek such private or public legislation. …
 153

Comments

The suggestion that 'legislation would be required to remove this requirement', being the
combined effects of s of s. 15(1) of the Municipal Act and s. 2 of the Expropriations Act is
an extreme understatement.

The combined effects of s. 15(10 of the Municipal Act and s. 2 of the Expropriations Act
reflect legal principles enshrined in both Ontario and Canadian law. These principles
are that there can be no expropriation without compensation, and that in order to
expropriate there is a process of checks and balances that the expropriating authority is
statutorily bound to follow."
[ pg. 7]

Second OMB Prehearing Conference March 23, 2010 and Statutory Notice Issue

127. A second pre-hearing conference respecting the various by-law appeals before the OMB
was held on March 23, 2010. Prior to the pre-hearing conference, counsel for the City of
Windsor circulated a draft procedural order which contained an issue list.

Now shown to me and marked as Exhibit 60 to this my affidavit is a copy of the draft
procedural order and issues list.

128. I am advised by my lawyer and verily believe that he sent a letter dated March 17, 2010
to legal counsel for the City of Windsor concerning two further issues which he wished to add to
the issues list.

Now shown to me and marked as Exhibit 61 to this my affidavit is a copy of that letter.
Mr. Colautti, in this letter, states, in part, the following:
"…A major concern of the Mr. Payne's ratepayer group with the process that led to the
HCD by-law, was the lack of notice to affected property owners of meetings which led to
the adoption of the HCD Plan and its promulgation as a by-law. Consequently, we
would ask that the following issues be added to the list:

1. Were property owners, whose property rights may be affected by the HCD plan,
given appropriate notice of same at any time prior to the passage of HCD by-law 22-
2009?

2. Was there full and fair opportunity given to affected property owners, whose
 154

property rights, land uses and business interests would be most impacted by the adoption
of the HCD, to participate in the HCD process prior to the passage of the aforesaid by-
law?

It may well be that these two sub-issues are subsumed in one of the more general issues
framed on the issues list. For instance, it may be that they fall within issue 1(i), 4, 5(iv)
or 10. If you would confirm that is so, then I am content. If not, then I wish to go on
record to request that these matters be added to the issues list. …"

129. I am advised by my lawyer, and do verily believe, that between March 17, 2010 and
March 23, 2010, he exchanged emails with legal counsel for the City of Windsor over the
inclusion of these issues in the appeals to be heard by the OMB.

Now shown to me and marked as Exhibit 62 to this my affidavit is a copy of the

exchange of emails.

130. As is apparent from this exchange of emails, the City took the position that the issue as to
whether there was adequate notice to affected property owners of the intention to pass the
Heritage District Designation by-law, and/or adequate notice to the affected property owners of
public meetings to consider the associated planning and heritage studies was "irrelevant" to the
OMB's consideration.

131. I attended at the OMB prehearing conference on March 23, 2010. My legal counsel
made a request of the OMB prehearing officer, Mr. Denhez, that these issues respecting the
adequacy of notice be added to the issues list. The OMB Member, after considering the issue,
made a ruling that these issues which relate to a statutory requirement, for public participation in
the process leading up to the passage of a Heritage District designation, would not be added to
the issues list. However, he ruled that this was without prejudice to my right to bring a motion
challenging the jurisdiction of the OMB in respect of the fulfillment of the statutory requirement
for public participation prior to the passage of the impugned by-laws.

132. Section 41.1(6), (7), (8), (9), (10) and (11) of the Heritage Act, R.S.O. 1990, c. O.18 is
the statutory provision which requires reasonable notice to the given to affected property owner
 155

prior to the passage of a Heritage District Designation By-law. Those subsections provided as
follows:
"Consultation

(6) Before a by-law adopting a heritage conservation district plan is made by the
council of a municipality under subsection 41 (1) or under subsection (2), the council
shall ensure that,

(a) information relating to the proposed heritage conservation district plan, including a
copy of the plan, is made available to the public;

(b) at least one public meeting is held with respect to the proposed heritage conservation
district plan; and

(c) if the council of the municipality has established a municipal heritage committee
under section 28, the committee is consulted with respect to the proposed heritage
conservation district plan. 2005, c. 6, s. 31.

Notice of public meeting

(7) The clerk of a municipality shall give notice of a public meeting to discuss a
proposed heritage conservation district plan in such manner as the council of the
municipality determines is appropriate and to such persons and bodies the council
believes may have an interest in the plan. 2005, c. 6, s. 31.

Time of public meeting

(8) The public meeting shall take place 20 days after notice is given under subsection (7)
or at such later time as may be specified in the notice. 2005, c. 6, s. 31.

Oral representations

(9) Any person attending the public meeting shall be given an opportunity to make oral
representations with respect to the plan. 2005, c. 6, s. 31.

Information provided at meeting

(10) The council of a municipality shall ensure that information is provided to persons
attending a public meeting explaining that, in accordance with subsection 41 (8), a
person who does not raise objections to the adoption of a proposed heritage
conservation district plan by making oral representations under subsection (9) or written
submissions under subsection (11) may be later denied an opportunity to appeal the
passing of a by-law adopting the plan under subsection 41 (1) or under subsection (2).
2005, c. 6, s. 31.

Written submissions
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(11) Any person or body may make written submissions with respect to a proposed
heritage conservation district plan to the council of a municipality at any time before the
by-law adopting the plan is made. 2005, c. 6, s. 31."

133. As I have deposed to above, I did not ever receive notice of, nor was I aware, prior to the
passage of the Heritage Conservation District By-law of any opportunity to voice my objections
to the passage of such a plan which severely and substantially impacts the two houses which I
own in the District. Furthermore, I am aware by going door to door in the district with Dan
Bebbington, that none of the other property owners and/or residents who signed the notice of
appeal were aware of or given notice of the public meetings which preceded passage of the by-
law. I only became aware after City Council had passed the HCD By-law when I receive, in
March, 2009, a registered letter containing notice of the passage of the by-law and my right to
appeal to the OMB, as I have deposed to above. Had I been aware I would have made every
effort to mobilize the affected property owners and appeared before the Heritage Committee, the
Planning Advisory Committee, and City Council to vigorously oppose these extraordinary
restrictions on our property rights.

Conclusion

134. The property owners and residents of the Olde Sandwich Towne district, particularly
those owners and residents who live close to the boarded up houses, are outraged about the
unacceptable state of affairs that have resulted from the continuation of the impasse between the
owners of the Ambassador Bridge and City Council. As I have deposed to at length in this my
affidavit, a careful and painstaking review of publicly available documents has shown that the
existence of the boarded up houses is entirely due to the passage by City Council of the aforesaid
interim control and demolition control by-laws initially, and then by the passage of Community
Improvement and Heritage Conservation District by-laws and the associated amendments to the
Official Plan and Zoning by-laws. A predominant purpose behind the passage of these by-laws
was to stop or hinder the owners of the Ambassador Bridge from proceeding with future plans
for a replacement span in favour of a new bridge downriver from the existing bridge. Some of
the by-laws such as the HCD plan and the CIP statutorily require public notification and
participation. It appears that affected property owners like me were not given adequate notice
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prior to the passage of these by-laws.

135. It will be up to this court to determine, on this application, if the impugned bylaws were
passed in good faith, or whether they were motivated by improper considerations and constitute
an abuse of power, all to the detriment of affected property owners like me.

136. This affidavit is made in support of an application to quash certain by-laws, passed by the
City of Windsor and for no other or improper purposes.

SWORN BEFORE ME at the City of)

Windsor, in the County of Essex )
this "12th" day of May , 2010. ) "H. Payne"
HILARY PAYNE

"Gail Lee-Woodcock"
A Commissioner for taking affidavits, etc.
Gail Anne Lee-Woodcock, a Commissioner, etc.
County of Windsor, for R.G. Colautti Law Professional
Corporation, Barrister and Solicitors,
Expires August 25, 2011