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.
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