Monday, March 11, 2013

A neighbourhood pays as a developer profits

Site Servicing and Grading Plan, April 2009

The Webster's Dictionary describes the word corrupt as, “changed from a sound condition to an unsound one, spoiled, contaminated, rotten.” Are we to accept the pessimist's view that man's greed is insatiable and therefore his nature to corrupt simply as fait accompli. Thankfully through the ages many have not accepted such defeat and have fought against oppression, and more recently for the very future of our Earth and its environment. But to change the “unsound” to “sound” again is not an easy task. In Canada the city of Montreal has had that painful task, one which has travelled with reverberations of shock and dismay.

St. Catharines Ontario a smallish city of some 130,000 inhabitants, sits as a gateway to the Niagara Peninsula. It is home to some of the incredible natural beauty with the Niagara Escarpment, and faces the same questions of survival in tough economic times as do many cities of varying sizes across North America. Change has become a necessity if decay is to be kept at bay.

In Merritton, a residential area of St. Catharines, once a small township of its own amalgamated into the greater city, long time residents woke up to an alarming situation in 2008. Severe flooding had hit homes, flooding basements, making backyards impassable and torrents of water running down driveways. Immediate complaints to city offices had been made. Many of the residents had lived in the area for decades some well into their sixties had been raised locally and lived their lives here. None had seen any flooding such as this prior to 2008.

City of St. Catharines engineers Mike Wilson and Ron Winterbottom inspected the flooding, in particular the home of Mr. Leeson where flooding damage was severe, leaving a hand written note by Ron Winterbottom City of St. Catharines engineer which stated “Drainage problem due to developer on Merritt St.” The City of St. Catharines had been made fully aware of the problems that hit an established neighbourhood. All the complaints made by residents of Pinecrest Avenue had become a matter of record.

Ron Winterbottom, City Engineer in his own handwritten note made it clear what residents already knew. He stated that the drainage problem was due to the development on Merritt Street, relating to a business that had moved its operation from its long-time location across the road. Sun Collision had been located on the opposite side of Merritt Street for a number of decades. Its owner Sam Demita decided to move the business across the road to a larger property. This property consisted of a portion that had been used as a commercial enterprise and a very large portion that was a natural ravine. Local residents who had played as children in the ravine had described it as a haven for local wildlife and a natural watercourse. The ravine stretched eastward hundreds of feet, approximately 100 feet wide and at depths of 25 to 30 feet, heavily wooded running parallel to Merritt Street towards the City of Thorold.

Owner and operator of Sun Collision decided to fill the ravine and turn it into what he would consider usable land. Dump trucks began to empty their loads in the dying weeks of 2007. A number of local residents had recounted how they heard bulldozers working under flood lights well into the dark of night. Other than the disturbing sound of machinery after dark little else changed in this neighbourhood till late February 2008.

Melting snows in February 2008 brought with them a meltdown of a neighbourhood. Torrents of water not only came rolling down driveways but also invaded basements and made a section of the local sidewalk equivalent to a rice paddy field. Floods of complaints to local authorities from residents brought out an inspection by City of St. Catharines engineers in early March 2008. As already stated a hand written note by one engineer confirmed what local residents had already became very aware of. Yet it was the apparent indifference to the plight of the residents by the City of St. Catharines that was most shocking. In a Notice of Decision dated April 2, 2008 the Committee of Adjustment issued this statement, “By applying site plan control measures the site will be considerably improved and will not have an adverse effect on the neighbourhood.”

Members of a Committee of Adjustment must visit the respective site which they are considering to approve applications on. In addition to the site visit engineering reports are provided and a minor problem such as numerous residents complaining about flooding would of been hard to ignore, or at least should of been hard to ignore. Yet the Committee of Adjustment for the City of St. Catharines had the audacity to state in writing “will not have an adverse effect on the neighbourhood.”

Throughout 2008 various residents of Pinecrest Avenue tried contacting the City of St. Catharines, others had contacted the Niagara Peninsula Conservation Authority and Trillium Railway. Each of these responded in a similar fashion, no care whatsoever. One resident was told by a representative of the Niagara Peninsula Conservation Authority that it was his problem and he should raise the level of his backyard. At the same time the dumping and filling also continued.

Finally April 1st 2009 brought an inspection by an Enforcement Officer from the Niagara Escarpment Commission. As a result of this inspection Niagara Escarpment Commission Compliance and Enforcement Officer Mathew Williamson provided in writing April 20th 2009 this statement: “The Niagara Escarpment Commission shares your concerns of the fill material being deposited without approvals from the respective agency(s).” Then in June of 2009 photographs of tonnes of asphalt dumped and within days buried. The Environmental Commissioner of Ontario approved an investigation which was conducted by the Ministry of the Environment.

Ministry of the Environment found Sun Collision and its owner Sam Demita in breach of Ontario Regulation 347. The Environmental Protection Act (EPA) Section 14(1) prohibits any person from discharging, or causing or permitting the discharge of a contaminate into the natural environment, where it may cause adverse effect. Under Ontario Regulation 34, “certain waste materials, including tires and asphalt cannot be buried or used as fill (whether or not an adverse effect is proven). Waste asphalt is regulated as a waste (whether or not it causes an adverse effect) unless it meets the exemption criteria in Sections 3(2)17 or 3(2)18 of O. Reg. 347.”

According to the official MOE report dated March 3rd 2010, Sun Collision, the site owner, was advised to remove tires, concrete with re-bar, asphalt and tree stumps that were uncovered during the excavation of the test pits. The report also stated that Sun Collision was required by the ministry to hire a qualified consultant to undertake a further assessment and undertake remedial actions if required. Although it was declared in the final report by MOE that “seven test pits in the fill deposition were dug at the site using a backhoe and sampled as directed by the ministry,” the report did not state where on the property the test pits were dug nor to what depth.

This was a critical question at the time, and still is. Photographs which showed large amounts of asphalt in huge chunks on the property were at the very end and were pushed over the edge by machinery. It was not a small amount of asphalt but a very large deposit. Also the ravine was in the shallow points at 25 feet deep to at least 30 feet deep and only later in 2010 was it made public that the test pits were only dug to a depth of 10 feet. Nothing made sense, in particular as it was the owner of the property who was “directed by the ministry” to do all of this. But MOE will say that is the usual procedure in an 'investigation'. Still a clean up was ordered.

Sam Demita began to park damaged vehicles along the fenced property line running alongside the disused railway line. Damaged vehicles have a tendency to be in less than perfect condition and the chances of leakage of hazardous materials in the least an issue to consider. The Environmental Commissioner of Ontario thought it was an issue and ordered the MOE to investigate. The local MOE on the other hand decided they would not. Ontario's Commissioner for the Environment had this to say, “The applicants did raise a legitimate concern that can receive too little attention: vehicles, damaged or not, leak fluids on roadways and parking lots. Precipitation runoff carries and deposits contaminates into rivers, streams and lakes. Brake fluid, antifreeze and motor oil, for instance, and petroleum distillates.” A very strong observation presented in the 2010/2011 Annual Report Supplement by the Environmental Commissioner of Ontario.

Ministry of the Environment on the other hand had their own opinion one less logical even somewhat farcical. In a written statement as a refusal to accept the ECO request to investigate MOE said, “As a general rule cars leak fluids at the scene of an accident and such fluids would be subject to clean-up at the accident scene. As a preventive measure, the property owner has already been advised to move the damaged vehicles away from the property line so as to lessen the potential for fluids to move off site and to clean up any spills detected in a timely manner.” To anyone who is well conversant with the English language the contradiction between these two sentences from the MOE reaches a new level of absurdity.

Generality only has a place in bar room conversations, reality and specifics are the science of environmental investigative decisions. An alarming reality is brought to attention in the report by the Environmental Protection Agency in the US. It clearly identifies the individual components for potential environmental adverse affect in relation to damaged or abandoned vehicles. This report was titled Developing an Abandoned Vehicle Cleanup Program and the issues are no different to damaged vehicles in a collision yard, perhaps even more time sensitive in nature. For those who found it hard to grasp this decision the EPA even prepared a cute picture. 

Sam Demita was instructed by the MOE to move the damaged vehicles in three separate and individual communications, this was confirmed by Assistant Deputy Minister Kevin French. Demita refused to abide by the ministry instructions and kept the damaged vehicles parked at the fence line for some two years without any consequence to date.

Sun Collision owner Demita had not moved any of the damaged vehicles from the property line for over twelve months after the MOE report of February 2011. It was difficult to understand how any business, in particular one as small as Sun Collision could simply ignore a ministerial instruction. Minister of Environment Jim Bradley was contacted in writing with dated photographs spanning a period of twelve months showing no vehicles had been moved. At first Minister Jim Bradley refused to respond then in the end he instructed the Director for Investigations and Enforcement Lisa Feldman to act on his behalf. This was confirmed in writing by Director Lisa Feldman on June 13th 2012. Director Feldman then upon apparent instructions of Minister Jim Bradley, altered details of the MOE report dated February 16th 2011 which had been copied and presented to the Environmental Commissioner's Office under MOE file reference ENV1180AC-2011-2 and EBRO File# 10EBR004.1

Director Lisa Feldman altered an official report presented as record by the MOE upon the instructions of the Minister for the Environment Jim Bradley. This was not a situation to be taken lightly, more so as Minister Jim Bradley proceeded to instruct a second director of the MOE to alter details of another official report. Director West Central Region Bill Bardswick in a letter dated June 21st 2012 confirmed in writing that he was acting upon instructions of the Minister, Jim Bradley. Director Bill Bardswick then continued to make statements which related to an official MOE report copied to the Environmental Commissioner of Ontario and presented as part of the ECO's annual report to the Legislative Assembly of Ontario. Director Bardswick in fact altered key points of the MOE report originally dated March 3rd 2010 reference number ENV1180AC-2009-100a and EBRO File# 09EBR004.1.

Sun Collision owner Sam Demita refused to obey official ministerial instructions. The MOE in return alter details of two official reports filed on record, even presented at the Ontario Legislature as part of the Environmental Commissioner's Annual Report, upon the instructions of Minister Jim Bradley.

To get the ball rolling, 'business man' Sam Demita filled a natural ravine without any permits, was caught in breach of the EPA Ontario's Regulation #347 burying hazardous waste material. All of this occurred from 2008 through to 2012, one would think this was a full dance card. Yet this story does not end here, fast forward to February 2013 and a new disturbing twist is added, with an official City of St. Catharines invitation to an Open House!

The Planning and Development Services Department is hosting an Open House about a proposed Official Plan (The Garden City Plan) Amendment and Zoning By-Law Amendment for lands located at 88 Merritt Street.” This proud announcement was delivered to homes in the affected area with Jessica Button, Planner of the Planning and Development Services Department for contact. Proposed for discussion at the Open House were two amendments for the 'subject lands' which are designated Mixed Use and Natural Area by the City's existing Official Plan, and a more critical point that the lands are zoned as Environmental Protection Area. Ms. Jessica Button did not plan to be thrown into the deep end of such a cesspool and she was out of her depth.

Regardless of what city, town or village one lives in zoning by-laws are simple, one simply has to abide by them. If any individual contravenes the zoning by-laws, whether a commercial enterprise or a private individual, that individual faces penalties, fines and an order to restore the area back to its original state. Then one can apply for permits and seek amendments and so on. Simple laws that all in the city have to obey. WRONG!

Sam Demita decided to fill a natural ravine running approximately 190 feet in length, 80-90 feet in width and at depths of 25-30 feet, without any permits. This land was zoned as Environmental Protection Area which made little difference to Demita's decision process. City of St. Catharines Mayor, Mayor Brian McMullan was fully aware of the situation. In fact Mayor Brian McMullan visited the site and defended Sam Demita in the local press. These were Mayor Brian McMullan's words in The Standard, April 29th 2010: “Sun Collision met all the requirements of its council approved site plan agreement when it moved onto the Merritt St. property.” Niagara this Week on May 12th 2010 wrote: “At Sun Collision, however, McMullan and company didn't find any serious problems, but he has told the staff to monitor the situation.”

The original Site Servicing and Grading Plan submitted to the City was signed by M. Wilson on April 20th 2009, even though engineer M. Wilson was fully aware of the situation with the local residents. This plan was also signed by Mayor Brian McMullan who would of been aware of the serious problems and the zoning. It is difficult to fathom how the city could with full intent and purpose permit Sam Demita to break the law so openly. Mayor Brian McMullan would be fully aware of the requirements to amend zoning regulations prior to any intended work. Mayor McMullan would also be aware of the seriousness of such a breach. Both City Engineering and Planning & Development would be fully aware of zoning by-laws and their enforcement. Finally members of the Committee of Adjustment had to physically visit the site whilst the dumping was in progress, yet they too permitted Demita to break the law.

As the Niagara this Week reporter wrote “McMullan and company,” the 'company' also included two of the Merritton Ward Councillors. Both councillors had numerous calls from local residents when the flooding hit homes, and neither councillor had anything to say to either of the reporters in 2010. Merritton Councillor Jeff Burch had been contacted by Mark Leeson who had some of the worst damage to his home. Mr. Leeson had even lost his household insurance due to these problems and made attempts to get help from his elected city councillors. Councillor Jeff Burch had this to say to Mr. Leeson as per a signed statement made by Mark Leeson on July 22nd 2009 and provided to both the ECO and MOE. “Jeff then told me that they know people in high places with the City of St. Catharines and this could be difficult.”

What was the intention behind this statement made by Councillor Jeff Burch? Was this a threat, or was it a warning? Councillor Burch did not contact Mr. Leeson after this phone conversation again. Merritton Ward Councillor Jennie Stevens went a little further than fellow councillor Jeff Burch. Councillor Jennie Stevens left a telephone answering machine message for Mark Leeson, in that message Jennie Stevens confirmed that Mayor McMullan had fixed a by-law fine for Mr. Leeson so he did not have to pay for it. She also spoke of the drainage ditch being dug in an attempt to alleviate the flooding, this was in May 2010.

By-law fines once issued cannot be forgiven, forgotten, nor can they be 'fixed'. It is breach of the Municipal Act and more. Still Councillor Jennie Stevens was proud enough that Mayor Brian McMullan had done exactly that and left a telephone answering machine message to prove it. But then laws seem to be of little importance here. Sam Demita was able to dump and fill a ravine without permits or any amendments to zoning by-laws. Mayor Brian McMullan was aware of it, City staff at two departments were aware of it, two elected councillors Jeff Burch and Jennie Stevens were aware of it, and even both of the local newspapers were aware of the facts and refused to report the facts in their articles. Both Niagara this Week and The Standard were made aware of Demita's breach of Ontario Regulation #347, of the illegal dumping without permits and of the zoning by-laws. Yet both newspapers ignored all the facts in their articles.

During the Open House of February 26th 2013 two very important issues became clear, other than the fact that Sam Demita's lawyer had lost control on several occasions. First of all, Sam Demita showed complete disregard even contempt for the environmental laws put in place to safeguard the community. His lawyer tried to argue the dangers of waste asphalt, and as any lawyer who argues on behalf of his client rather than on behalf of the truth, found himself forced to back down. In response to a statement that burying hazardous waste was illegal and potentially detrimental Demita said, “...what hazardous waste, I don't understand, you guys cost me a fortune, they found nothing.” Demita went on to say “I went with O'Hara, I dug 17 feet to just prove a point, and you know what happened I found two stinking tires with rims, which were thirty years old, the ministry, the ministry (here he took out his brown leather wallet waving it around the conference table) they find pieces like this too, so basically the ministry, you know why because that gentleman, he know who that is.” At the end here he turned and glared at me.

In the Niagara this Week article of May 12th 2010, reporter Alex Somerville wrote, “Demita showed off the land, which had been a focus point for the community, where there were 16 holes dug up, about 10 feet deep...” Was this outburst by Sam Demita at the Open House on February 26th, simply anger which he could not control, or was it something else?

The second point even more alarming as it proves that the City of St. Catharines has been fully aware of breaches of its by-laws and has permitted them to continue. In fact the City of St. Catharines now has put into place an attempted mechanism to cover up intentional breaches of the law.

One of the proposed amendments states “... permit a very limited amount of outdoor storage in the northwest corner of the site, as an exception to the Mixed Use policies.” At the Open House the individual who was there to explain the plans which have been proposed on behalf of Sam Demita had this to say. “Outside storage is one term used in the zoning by-law it's really the staging area for Sun Collision, Sun Collision needs some place to put the vehicles before they're taken in to the shop to be repaired to be sent on their way, right now they could put these automobiles that need repairing in the front yard, they could do that, but I think that's not appropriate.”

No city regardless of its size, or the size of a business man's wallet (Demita was not waving his brown one around at this time), can permit the intentional and wilful breach of its by-laws. Demita's representative made the point clear that Sam Demita had in fact done so for several years. As the questions were asked of Steven (the architectural representative) where were the vehicles placed at this point in time, Demita burst out with “I put them anywhere right now.”

The Ministry of Environment instructed Sam Demita in three separate communications to move the damaged vehicles with their report of February 2011. Assistant Deputy Minister Kevin French confirmed that fact in writing. Director of Investigations and Enforcement Lisa Feldman stated in her written report that the City of St. Catharines had been contacted on the issue regarding possible planning questions in 2012. Mayor Brian McMullan, City of St. Catharines Engineering and Planning and Development Services, City of St. Catharines Merritton Ward Councillors Jeff Burch and Jennie Stevens, have all been aware of the breaches of law by Sam Demita.

In the proposed amendments number 2 states “Amend the zoning by-law from Environmental Protection Area to Commercial Residential, with limited permissions for outdoor storage...” Sam Demita began to dump into the ravine in late 2007, Mayor Brian McMullan, Councillors Jeff Burch and Jennie Stevens, City Departments of Engineering, Planning and Development had all become fully aware of the situation by 2009! The 'rot' is deep and many questions need answered.

If we as members of our community do not stand up for the values we teach our children and fight for our own communities then under no circumstance can we rely on anyone else to do so. The City of St. Catharines City Solicitor, Planning and Development Department, and each of the twelve City of St. Catharines Councillors have been made aware in writing that an application to the Ontario Municipal Board (OMB) is being filed on this mater.

Sam Demita's lawyer at the Open House said “It is unfortunate we cannot take legal action against ... the complaints ....” Was this meant as some kind of warning or threat, one could argue it was possibly a simple loss of control by a 'legal eagle'. Regardless, there are serious questions to be answered here and they will be! 

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