BREAKINGBLOG NEWS: West End Home Owners Sue City
BUHDAG noted that the Council resolution did seem to indicate some receptivity on the part of Council but raised a concern that firstly the mediation may not be successful and secondly there was no real commitment by Council to work cooperatively with BUHDAG.
BUHDAG concluded, following discussions with their lawyer, Mr Ray Colautti, that BUHDAG should file an Application in the Ontario Superior Court requesting an order be issued to quash the seven by-laws and the Demolition Control and Interim Control by-laws. BUHDAG has concluded that all of these by-laws were passed by Windsor City Council with the intention of preventing obstructing and/or hindering construction of the second span of the Ambassador Bridge by not allowing the demolition of the boarded up houses .Windsor City Council has thus effectively taken the residents in the Indian Road and Edison Street areas hostage by perpetuating the existence of the boarded up houses which constitute an eyesore and a public nuisance and has resulted in the depreciation of our property values.
The City of Windsor has also inappropriately attempted to exercise a legislative authority that it does not have, namely to force an owner (the Bridge in this case) to reoccupy buildings and restore them to residential use and also to provide a future use development plan. In taking these actions the City has acted in bad faith.
1. The applicant makes application for:
i) An Order, pursuant to s. 273 of the Municipal Act quashing By-Law 20-2007, passed originally on January 29, 2007, and passed again on February 25, 2008, and most recently passed again on January 29, 2009 imposing and extending demolition control in the Sandwich Old Town Area;
ii) An Order, pursuant to s. 273 of the Municipal Act quashing By-Law 19-2007, passed originally on January 29, 2007, and passed again on January 25, 2008 (in the form of By-law 18-2008 until February 26, 2008 to provide an opportunity for public input at the February 26, 2008 Council meeting), and most recently passed on January 29, 2009, imposing and extending Interim Development control in the Olde Sandwich Towne Area;
iii) An Order, pursuant to s. 273 of the Municipal Act quashing By-Law 22-2009 designating 261 properties in the Olde Sandwich Towne Area as a Heritage Conservation District;
iv) An Order, pursuant to s. 273 of the Municipal Act quashing By-Law 23-2009 adopting Official Plan Amendment 68 to implement the Sandwich Heritage Conservation District Study;
v) An Order, pursuant to s. 273 of the Municipal Act quashing 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 situated in the Sandwich Heritage Conservation District;
vi) An Order, pursuant to s. 273 of the Municipal Act quashing By-Law 27-2009 which adopted the Community Improvement Plan for the Olde Sandwich Towne Community Improvement Project Area;
vii) An Order, pursuant to s. 273 of the Municipal Act quashing By-Law 28-2009 which adopted the Olde Sandwich Towne Community Improvement Plan Supplemental Development And Urban Design Guidelines;
viii) An Order, pursuant to s. 273 of the Municipal Act quashing By-Law 29-2009 which adopted Official Plan Amendment to implement the Olde Sandwich Towne Community Improvement Plan dated November 2008;
ix) An Order, pursuant to s. 273 of the Municipal Act quashing By-Law 30-2009, being a zoning bylaw amendment establishing regulations regarding residential areas in certain areas of the Olde Sandwich Towne Community Improvement Plan Area.
x) An order awarding costs to the applicants on a substantial indemnity basis;
2. The grounds for the application are:
i) In June, 2007, City Council was made aware of, through a presentation to City Council, that the owner of the Canadian half of the Ambassador Bridge (the Canadian Transit Company, hereinafter called “CTC”), planned an expansion or twinning (hereinafter referred to as "Second Span") of the existing bridge.
ii) The Ambassador Bridge, owned and operated by the CTC, is an international border crossing linking the cities of Windsor, Ontario and Detroit, Michigan.
iii) In January, 2007, Windsor City Council passed Interim Control By-law 19-2007 and Demolition Control By-law 20-2007. The stated nominal purpose of these by-laws were to freeze all development, redevelopment and demolitions concerning properties in the Olde Sandwich Towne Area pending completion of a Community Planning Study for that district, but its real object was to prevent the CTC from proceeding with its plans to construct a Second Span. The City of Windsor has taken the position that by prohibiting and/or hindering and/or obstructing the demolition of the houses owned by CTC along Indian Road and Edison Street in the City of Windsor, it will stop the advancement of the Second Span.
iv) On February 26, 2008, Interim Control By-law 19-2007 and Demolition Control By-law 20-2007 were extended for another year.
v) A Community Improvement Plan for Olde Sandwich Towne was adopted by City Council in November of 2008. An objective of the plan was to prevent the CTC from proceeding with its Second Span.
vi) On or about January 26 and/or January 29, 2009, Windsor City Council adopted several other by-laws as follows:
a) By-law 22-2009 which designated 261 properties in the Olde Sandwich Towne Area as a Heritage Conservation District;
b) By-law 23-2009, which adopted Official Plan Amendment 68 to implement the Sandwich Heritage Conservation District Study;
c) 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;
d) By-law 27-2009 which adopted the Community Improvement Plan for the Olde Sandwich Towne Community Improvement Project Area;
e) By-law 28-2009 which adopted the Olde Sandwich Towne Community Improvement Plan Supplemental Development And Urban Design Guidelines;
f) By-law 29-2009 which adopted Official Plan Amendment to implement the Olde Sandwich Towne Community Improvement Plan dated November 2008;
g) By-law 30-2009, being a zoning bylaw amendment establishing regulations regarding residential areas in certain areas of the Olde Sandwich Towne Community Improvement Plan Area.
h) By-law 19-2007, the Interim Control By-law for the Olde Sandwich Towne area, was again extended;
i) By-law 20-2007, the Demolition Control By-law for the Olde Sandwich Towne area was again extended.
viii) The objective behind all of these by-laws was to stop or hinder the CTC in proceeding with its Second Span, as the adoption of interim control and demolition control by-laws would be used as a tool to stop any work being done by the Ambassador Bridge on property owned by it. There were no other development projects being undertaken in the area, and that thus, the said by-laws targeted the CTC.
ix) The effect of several of these by-laws, particularly by-law 20-2007 was to subject all properties in the designated Sandwich area to demolition control.
x) In June of 2007, the CTC made a request to demolish six houses on Indian Road. Since that time, other requests by the CTC to demolish other houses acquired by it along Indian Road, and on Edison Street were also made but denied. 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 Sandwich area, have been frequently granted.
xi) 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.
xii) A standoff has therefore materialized between the CTC and the City Windsor. Numerous homes in the Indian Road and Edison Road area remain boarded up and vacant. These boarded-up homes are having a very deleterious effect on other properties, constitute an eyesore and a public nuisance. The Boarded-up houses negatively impact property values.
xiii) City Council has 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. For its part, the CTC has proposed grassing and grading of the area.
xiv) Surrounding property owners who are severely impacted by the boarded up houses are caught in the middle of this dispute. The applicants, who are members of an unincorporated association of area residents known as BUHDAG (Boarded Up Houses Demolition Action Group), consisting of property owners in the Sandwich Towne area, have attempted to request City Council for resolution to this impasse. BUHDAG has tried to persuade City Council to resolve the impasse by allowing the CTC to demolish the houses in question and to re-landscape the vacant land. BUHDAG has been advised by one or more City Councilors that the City would entertain issuing demolition permits provided that the CTC irrevocably committed itself to a plan for the future use of the subject properties. The issue is whether or not this is a valid condition that could be imposed by City Council. City counsel has refused to hear or deal with BUHDAG’s concerns.
xv) There are limits upon City Council’s discretion to refuse to issue a demolition permit. It must not act arbitrarily or capriciously. It must not, under the guise of demolition control, be exercising its discretion for an improper collateral purpose: to stop or hinder the bridge expansion. It must act fairly, and must not be seen to be prejudging the exercise of its discretion. It cannot impose prior restraints on the exercise of its discretion. It must exercise its discretion in respect of matters of valid municipal concerns, and must act fairly, openly, and impartially.
xvi) The City also had the authority, by designating and adopting a Community Improvement Plan respecting the Olde Sandwich Towne Area to construct, repair, rehabilitate or improve buildings on lands it acquired or holds, it has no authority to require any property owner to restore a particular property to a residential use by repairing, rebuilding or reconstructing the residential unit.
xvii) While the City has authority, under the Building Code Act, to direct that a residential unit be repaired pursuant to work orders issued under the relevant bylaw and Building Code Act, it has no authority to force an owner to reoccupy the building and restore it to a residential occupancy.
xviii) Although the City, therefore, has the power to order alterations or repairs, or to order the demolition of a substandard property, and has the power to effect the demolition and charge the property owner if the orders are not complied with, or to prevent the occupancy of the unit, there is no legislative authority which allows the municipality to force any property owner to reoccupy the subject unit as a residential unit and to put it back into the housing market.
xix) The purpose and effect of the aforesaid By-laws is to use demolition control as a means of interference directed at a specific property owner, in this case the CTC, with the aim of forcing the CTC to restore these properties to residential occupancy, or to block future Second Span. This is an improper purpose and this constitutes bad faith.
xx) Other affected property owners, such as the applicants and the members of BUHDAG, whose lives and property are affected by the continuing existence of these boarded up houses, and the public nuisance that they are creating, do have a legitimate interest in the resolution of the demolition permit issue. Consequently, the applicants as affected residents have standing to bring legal proceedings against the City to challenge the aforesaid by-laws. The applicants and the members of BUHDAG are property owners or occupiers who have been affected by the illegal purpose behind the aforesaid by-laws.
xxi) Municipal Act s. 273; Rule 14.05 (1), (2), (3)(d)(g)(h) of the Rules of Civil Procedure.
xxii) Such further grounds as counsel may advise and this Honourable Court may permit.
3. The following documentary evidence will be used at the hearing of the application:
a) The affidavit of Hilary Payne, sworn, and Exhibits attached thereto;
b) Transcripts of witnesses examined on this pending application, and Exhibits marked thereon;
c) Such further and other material as counsel may advise and this Honourable Court may permit.