Windsor has six weeks to respond to LPAT expropriations ruling that could cost millions

City of Windsor officials have about six weeks to appeal a decision delivered by Ontario's Local Planning Appeal Tribunal (LPAT) related to an expropriations matter that could cost several million dollars. 

Without an appeal, the city is expected to pay at least $2.8 million, plus 6% interest dating back to 1997

Should the city choose not to appeal the LPAT's decision, Windsor will need to pay at least $2.8 million to the Paciorka family. (Jonathan Pinto/CBC)

City of Windsor officials have about six weeks to appeal a decision delivered by Ontario's Local Planning Appeal Tribunal (LPAT) related to an expropriations matter that could cost several million dollars. 

The LPAT's Feb. 7 order, written by Richard G.M. Makuch, represents the latest legal decision concerning the City of Windsor's acquisition of 187 lots within the Malden Planning Area owned by Paciorka Leaseholds Limited. The area is located east of the Ojibway Prairie Complex. 

The city expropriated the Paciorka family's land in three phases, in 2004, 2005 and 2008, "for the purpose of preserving a natural heritage area known as the Spring Garden Complex," according to the LPAT's ruling. 

Jason Beitchman, a Toronto-based lawyer who represented the Paciorka family in the most-recent LPAT hearings, said the family is "obviously very happy" by the decision. 

"It's been a long journey," he said. "Personally, I'm very pleased for them. Speaking for myself and dealing with clients of all stripes who have short and long legal battles, I always like to see a decision that may be a full and final resolution."

As per the Makuch's Feb. 7 decision, the city owes the Paciorka family approximately $2.8 million in compensation, in addition to six per cent interest per year dating back to August 1997.

It's been a long journey.- Jason Beitchman, Lawyer representing Paciorka family

The city and the Paciorka family began legal proceedings before the LPAT in 2008, after both groups were unable to agree on the amount of compensation owed to the family. 

Windsor city solicitor Shelby Askin Hager explained that the crux of the issue was the valuation of the land expropriated by the city. 

"The value of property varies wildly based on what it can be used for or what it can't be used for," she said. "The city's position is that this was undevelopable land, based on provincial determinations and identification of significant features around there that made it undevelopable."

In contrast, the Paciorka family took the position that the land's best use was for residential development, and worth more than undevelopable land, according to Askin Hager.

In 2009, a different LPAT board ruled in favour of the Paciorka family, leading to a Court of Appeal for Ontario decision that culminated in a new LPAT board being asked to review the matter. 

According to Beitchman, the Ontario appeals court wanted the LPAT to take into account two provincial policy statements that provided insight into the "developability of the subject lands."

Read the LPAT's Feb. 7 decision:

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"It asked the parties and the tribunal to go back and look more closely at the impact that the provincial policy statement had on these lands and their assessment of developability and value," he said. 

The Court of Appeal also determined that the LPAT made a mistake by awarding compensation to the Paciorka family based on the loss of market value of the remaining lands, rather than just the expropriation by the city. 

Askin Hager says the city's legal department is reviewing the LPAT decision, and is working on legal recommendations to present to city council.

Windsor city solicitor Shelby Askin Hager says the municipality's legal department is currently reviewing the Feb. 7 LPAT decision. (Rima Hamadi/CBC)

She said that any potential decision to appeal the ruling will be made by city council, adding the recommendations will be presented during an in-camera session. 

"I'm not able to make a comment because a decision hasn't been made yet," she said.

CBC News has reached out to Windsor Mayor Drew Dilkens' office for comment. 

LPAT's decision could influence other landowners

Speaking with Afternoon Drive host Chris dela Torre on Tuesday, Beitchman said there are a number of other landowners who were waiting on the LPAT's latest decision to decide how to move forward with their own expropriation dealings with the city. 

"They'll be interested to know what the final number is so that they can go and resolve their land values with the City of Windsor as well," he said.

Listen to lawyer Jason Beitchman talk about the LPAT's decision with Afternoon Drive host Chris dela Torre:

Askin Hager said landowners whose expropriation dealings "have already been addressed" won't be able to use the Feb. 7 LPAT ruling to retroactively ask the city for more money. 

However, those landowners whose expropriation dealings remain unaddressed could come forward and say, "This is the value I'm basing my claim on," according to Askin Hager. 

With files from Sameer Chhabra


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