Wednesday, January 6, 2016

City of St. Catharines' By-Laws, what's up with that?

Freedom and democracy are treasured ideals but without a finely worn matrix of rules and laws humanity would not be a pretty sight. This finely woven matrix finds itself criss-crossing jurisdictional authority between federal and provincial hands depending on the subject matter. Often the task of understanding our laws and their ownership of enforcement becomes more daunting with the language used in their structure. For us ordinary folks our daily lives thankfully are made more simple by the design of By-laws.

By-laws are mostly the domain of municipal governments. The official City of St. Catharines website explains By-laws as such, “The office of the City Clerk is responsible for the care and control of by-laws. By-laws set standards for matters affecting private land owners, public health and safety.”

Safety is definitely an issue when anyone thinks of our roads and how we use them. For this reason we have Parking By-laws to ensure the safety of all drivers and pedestrians, and to keep things moving in an orderly fashion. Again quoting from the official City website, “The City of St. Catharines is committed to providing high quality and available parking to enhance the quality of life for our residents and visitors. Tickets may be given to owners or operators of motor vehicles who fail to obey parking by-laws.”

All of this sounds official, reassuring, and yet clear and simple. In addition to these comforting words from the City, there is also the City Solicitor for the City of St. Catharines, Nicole A. Auty. Nicole Auty was the co-lecturer at a forum called Advanced Creating & Enforcing Municipal By-laws, January 29th and 30th 2015. Their bio there states “Nicole A. Auty is the City of St. Catharines Solicitor/Director, Legal Services. She has served on the Executive of the Municipal Section of the Ontario Bar Association. She is the co-author of Canadian Forms and Precedents: Municipal Law and has experience drafting a wide rage of municipal by-laws.”

Now if all the simple and clear rhetoric from the City's official website is not enough to keep the residents feeling safe and cozy, then such an expert at the helm of legal services must. Yet how is it that By-laws matter so little in the City of St. Catharines? This is not an attack on government, rather a legitimate question when one examines the information and evidence provided.

One might ask why not approach the elected Merritton Ward City Councillors? The two current Merritton Ward Councillors are Jennie Stevens and David Haywood. Jennie Stevens is a familiar name to Mayorgate with the infamous telephone answering machine message. David Haywood is a new or first term councillor elected in 2014, with a background as a security guard for the Niagara Falls casino. Haywood had previously attempted to enter municipal politics in 2010 but failed and as far as political experience stands, David Haywood's is greatly limited.

Photographs of a city garden overgrown with weeds reaching three feet in height, and other plantings well into eight feet, obstructing the safety of an intersection, were posted publicly on Facebook and on the Mayor's Fan Page. Mayor Walter Sendzik responded in a dignified manner; Councillor David Haywood took another approach, he became openly belligerent and then came up with this gem. “As for starting something I cannot finish bring it on!!!!” Whether this was to be taken as a threat of some kind or a public challenge, one point is clear, that Councillor David Haywood has still to learn how to behave in public.

So let's “bring it on!!!!,” as per Haywood's own words. Apparently bus stops have been moved all over the City of St. Catharines. Bus drivers have told me that some of the new locations are nothing short of insane. One such move was on Glendale Avenue, a stop that had stood at its location for years was moved to within eighteen feet of the shoulder and a four-way-stop at Glendale Avenue and Bessey Street.

Glendale Avenue is a major road in the City of St. Catharines. It takes one to an outlet mall on one end and to the Pen Centre, the region's major shopping mall, at the other. Bessey Street is used by locals to avoid traffic back-ups at Glendale and Merritt if they need to proceed to Thorold (the neighbouring municipality) or to Hartzel and Queenston Streets. Looking at the photographs of how buses are forced to stop to either pick passengers up or to allow passengers to leave the bus, one wonders how safe was this?

If a bus driver stops at the bus sign as the rules require then half of the bus hangs into and across the intersection. The number 11 bus passes along Glendale five days a week beginning at 6:05 a.m. and ending with the last run at 6:05 p.m. approximately. During this twelve hour period the route is serviced every thirty minutes, presenting twenty-four potential instances for a catastrophe depending on how often passengers get off or on at this stop.

The city's own Parking By-laws prohibit this insanity. “By-law 202.01 Shoulder and Boulevard Restrictions: Unless otherwise provided in this By-law, no person shall stop, stand or park a vehicle or permit a vehicle to remain stopped, standing or parked on any shoulder and boulevard contrary to the prohibition or restriction applicable to the adjacent roadway as provided by this By-law.” By-law 203.02.04 Stopping Prohibited – Specified Places with signs: “Within fifteen metres (15m) of an intersection, and By-law 205.01.01 Parking Prohibited: within ten metres (10 m) of an intersection.”

Above the bus sign is a 'No Parking' sign. Each and every bus, as it pulls up to the stop, has half of its length across the intersection. Vehicles that follow the bus are either stopped in the middle of the intersection or try to move around the bus in the middle of the intersection, with oncoming traffic from the opposite direction. Some bus drivers refuse to pull up at the bus sign, they would rather break their own rules and risk their supervisor's wrath and pull at least a full bus length past the sign. Potential passengers then are forced to hurry and now go back to reach the bus; during winter that could add even more potential risk.

One bus driver had said that he had raised the issue of this intersection with his union representative but was told that the union couldn't do anything about it. Apparently this was a City move and there were several other stops that were as questionable. Drivers know this is not safe, passengers know it is not safe, then who decided to move the bus sign and for what reason?

Every bus driver is forced to break the by-laws of this city and commits an offence each time under the Provincial Offences Act. An email with photographs had been sent to Mayor Walter Sendzik and to the Director of Transportation and Environment Services, Dan Dillon. The questions asked were simple. First, why was this bus sign moved to a position putting at risk both passengers and drivers? Equally as important, who made this decision and on what information or review was this decision based? Any response received naturally would be published.

Mayor Walter Sendzik received the email approximately at 4:11 p.m. on December 8th. First there was an automated response, then on December 9th at 7:25 a.m. Mayor Sendzik responded with a personal message. He had looked at the photos and had taken action. Later that same day the Mayor's Administrative Assistant, Julie Hughes, confirmed that the stop had been moved to its original location, safe and clear from the intersection. Mayor Sendzik had shown care about a situation, was able to view the photos which clearly explained the need for a remedy and took immediate action. This shows how local government can work together with members of the community and make things work. Thank you to Mayor Walter Sendzik for his concern and quick response. Dan Dillon on the other hand decided to ignore the issue that was brought to his attention.

The next issue is somewhat more complex yet still dealing with the same principles of By-laws and a simple concept that all the laws in our society are equal to all the citizens. After all that is what the Charter of Rights and Freedoms guarantees. There is no small print in the Charter that says this guarantee is only applicable to the big laws like the Criminal Code or Income Tax law. In St. Catharines that concept of supposed equality is somewhat lost.

It all begins with a business on Merritt Street, not a big business at that, only employing ten or less individuals. Owner Sam Demita had faced Ministry of Environment investigations and he had breached the By-laws of this municipality for some five years. This city and its staff were quite aware of the breaches of law and finally announced that the By-laws were going to be changed to suit Sam Demita and his business Sun Collision, resulting in an Ontario Municipal Board hearing. 

As expected the OMB supported the City and ruled that the By-law amendments should proceed, and they did. The City of St. Catharines wrote up the new by-laws, threw in some spit and polish and Sam Demita broke the new shiny by-laws made especially for him from the first day. Two By-laws were written, as an OPA, Official Plan Amendment via By-law 2013-138, and the other a rezoning By-law 138-39.

Prior to the By-laws being written and the whole OMB fiasco, the cleansing or absolution of Sam Demita was pitched at a City of St. Catharines Council meeting on April 29th 2013. As usual the meeting was presided over by the mayor of the day, Brian McMullan. One of the Councillors for Merritton at the time, Jeff Burch, made his statements, lied to protect Sam Demita, later being investigated by the Integrity Commissioner. It was a mess, and in addition to all of this the Director for Planning & Development Services for the City of St. Catharines, James Riddell, presented his Corporate Report #PDS-103-2013, File: 60. 2.30 dated April 3rd, 2013.

This report is fifteen pages long and a great deal of it in language which attempts to cover all the supposed angles for the City. Yet several passages stand out and are worthy of being quoted. On page 7 of 15, paragraph two begins: “Section 12.1(viii) of the Garden City Plan does not permit automotive related service facilities in the Mixed Use designation. The applicant is proposing to amend the Official Plant to permit outdoor storage in conjunction with the adjacent automotive repair shop. Permissions for this small outdoor storage area will assist in the day to day function of Sun Collision.”

Now on page 8 of 15, under the heading Outdoor Storage: “Section 6A 2.1 of the Zoning By-law 2004-263 does not permit outdoor storage in the Commercial-Residential zone.” Then it continues in the next paragraph, “The subject lands have and continue to be used for outdoor storage. This use is in contravention of the zoning by-law.”

The real gem comes on page 9 of 15, second paragraph under the heading Planning Analysis Conclusion; “Staff note that the existing use of the site for outdoor storage is not consistent with the proposed amendments. Staff will be pursuing enforcement of the Zoning By-law, once the proposed amendment takes effect.” One may ask what does all that mean? Firstly, James Riddell and his bunch, City Solicitor Nicole Auty, the Mayor at the time Brian McMullan, and Merritton Ward Councillor Jeff Burch all knew Sam Demita breached the by-laws at will. Now that the by-laws were being amended to suit Sam Demita and provide absolution, a promise was made to enforce the new by-laws.

That was in April 2013. The OMB through the hands of Member or Adjudicator M.C. Denhez whitewashed everything for the City and the new by-laws came to life. Sam Demita did what he had done for some five years, he broke the new custom designed by-laws from the first day. According to Mr. OMB, M.C. Denhez and his final report of November 2013 #PL 130734, page 3, paragraph 14: “The OP designation and zoning of the back northwest corner (abutting the railway tracks and Sun Collision) was named 'Area B,' and authorized for car storage.” James Riddell in his report on pages 8 and 9 of 15 stated, “the proposed location and size of the storage area are limited...,” and “A limited amount of outdoor storage in the north-west corner of the site...”. Limitations and law are not exactly Sam Demita's concern.

That northwest corner was for damaged cars only; within weeks of the new By-laws coming into force, the whole yard was covered in vehicles. All the wrecked vehicles in fact were parked opposite the permitted area running adjacent to the fence line on Merritt Street. New vehicles waiting for detailing filled the site in the hundreds, and mini storage containers took position on almost all the empty spaces.

On September 2nd 2014 three emails were sent with photographs attached to the attention of M.C. Denhez at the OMB, City Solicitor Nicole Auty and Director of Planning & Development Services James Riddell. As expected James Riddell didn't bother to reply, after all what more could he say. Nicole Auty responded with the line that staff will be looking into the matter, what that really meant is anybody's guess.

Everything remained the same till sate Spring 2015. After which the new vehicles had disappeared and almost all of the mini storage units. The damaged vehicles were left on the opposite side of the site in contravention of the custom made By-laws of 2013.

An announcement came to the residents along Pinecrest Avenue and a sign was attached to the fence of 186 Merritt Street, Sam Demita's property. Once again an Open House was conducted on September 24th 2015. An “Information Meeting Regarding A Proposal To Redesignate,” it went on to say, “Amendment to Official Plan and Zoning By-Law to Permit a Mini Self Storage Facility to be located within the existing Mixed Use Designation and Zone.”

Now tough guy Councillor David Haywood and his threat of “bring it on,” may try to use the excuse of how much he doesn't know, but this time it won't wash. During the Facebook exchange a link was provided to the issues surrounding Sun Collision and Sam Demita. David Haywood was also contacted by Mr. Mark Leeson, a resident of Pinecrest Avenue. In addition to all of this Councillor Haywood was present at the Open House on September 24th 2015 with his fellow Merritton Ward Councillor Jennie Stevens. Councillor Haywood did not bother to contact Mr. Leeson again after the Open House, according to Mr. Leeson during an interview on December 5th 2015.

There are some serious questions about how much the law is worth in St. Catharines. In 2013 the former Mayor, Brian McMullan and former Merritton Councillor Jeff Burch did their thing. Now it will be interesting to see what Mayor Walter Sendzik and Councillor David Haywood will do. So who and what is Sam Demita? How can one man mangle, abuse, and spit on the law and have City Officials cover up for him?

Mayor Walter Sendzik replied with a simple referral to his Director of Development Services James Riddell on December 18th 2015. Previously James Riddell refused to acknowledge any questions when an email was sent to him in September 2014. This time he had little choice, obviously Mayor Sendzik instructed him to respond. James Riddell on December 21st via email confirmed once again that he is fully aware of the breach of law by Sam Demita. Once again James Riddell and the City of St. Catharines will do the clean up for a habitual law breaker. Mayor Walter Sendzik is no different to the former Mayor Brian McMullan after all. Mayor Sendzik has shown little care for the law, for its equality, or for its reason to exist, at least that is what can be interpreted from his actions in this situation.

As far as Councillor David Haywood, well this time he ran for the hills. He refused to reply to the email and questions sent to him. There are no more threats or challenges, public or private from Haywood.

Were does this leave the law and the Charter of Rights in St. Catharines? How does any individual reconcile the concept of equality before the law when they are charged and/or fined for a breach of By-law regarding development, property standards, or any other supposed infraction relating to both commercial and residential properties? The reality is simple, the City of St. Catharines has set a legal precedent for any defense lawyer to argue on behalf of his or her client. If Sam Demita can break the law at will with full knowledge of City officials, who then simply fix and change the law to suit Demita, then no regional municipality has legal right to penalise any other individual. That is what the Charter of Rights guarantees, equality before the law!

On the very last day of 2015, Mayor Walter Sendzik had his Administrative Assistant, Julie Hughes, send an email relating to the breach of law at 186 Merritt Street by Sam Demita. The email states, “In the meantime the owner has used the site for various outdoor storage uses, contrary to the zoning by-law. The City's inspection team has been out a number of times over the past years seeking compliance with the zoning by-law. The site has improved with the removal of numerous sea containers however the outdoor storage of vehicles remains an issue.”

Mayor Walter Sendzik admits to full knowledge that Sam Demita is breaking the law daily. Sendzik admits that Demita has no desire to abide by the By-laws fixed by the City for him in 2013. The mayor further admits that James Riddell is fully aware of the intentional breaches of law, now going on for six years by Demita, and has done nothing about it.

The Municipal Act under section 429 provides for fines to be levied to ensure compliance. Special fines above the maximum of $100,000 and for continuing offenders fines of $10,000 a day are levied. It is time for Mayor Walter Sendzik to remove James Riddell from his overpaid public position and conduct an investigation. It is time to ask Nicole Auty the City Solicitor some serious questions, as she is such an expert on By-laws. Yet Mayor Sendzik will do nothing, as the former Mayor Brian McMullan did nothing. The most recent photos taken only a few days into 2016 prove that Mayor Sendzik's statement in the email, “The site has improved with the removal sea containers,” is simply a lie. Is it possible that James Riddell simply decided not to provide all the facts to Mayor Walter Sendzik? After all the City's “inspection team has been out a number of times.” Who's inspection team but one sent by James Riddell.

This City has threatened and destroyed lives over simple noncompliance, yet here one individual appears to have the power to tell the City to …. off and do as he pleases without consequence for over six years! Mayor Walter Sendzik provide an honest and concise answer as to how this is possible.