Wednesday, June 8, 2016

Are By-laws Real? Not In St. Catharines.

The issue of law, its equality and the fairness of enforcement has brought about not only demonstrations by the people of nations, but revolutions. Modern democratic society thrives on a foundation of such equality. Here in Canada we draw refugees from lands torn by tyranny with a promise of equality and justice. Our Charter of Rights and Freedoms guarantees such equality for all Canadians regardless of their origins. At least as a concept, as an ideal, it sounds reassuring. The reality is somewhat different.

Today society does not labour under the blinds of naive faith in Canada's justice system. The recent Duffy trial and the scandal facing the Senate was enough to blow any self-righteous bubble of equality. Well paid lawyers use their tongues to weave and maneuver around all the concepts of equality and justice. Loopholes and corridors, language and semantics are the tools for these practitioners of 'justice for all,' and no one can be surprised where their loyalty lies. That being said, do the people of this country have a right to expect that those who are elected into public office at all levels, and those paid to enforce the laws and legislation with public monies, have a loyalty to the concept of equality and justice?

In the City of St. Catharines those concepts appear to have been long forgotten, or worse – exchanged for something else. Throughout this country municipalities formulate a variety of by-laws under the jurisdiction and authority granted by the relevant Municipal Acts. These regulations regulate zoning, building and development, remediation of soil and landfill requirements, even parking on the streets of the city or town. Without these by-laws our cities would look more like carnival sideshows than pleasant environments to live and grow in. As with any law in Canada these by-laws are equally enforced in the community so that no one individual has privilege over another.

On April 18th 2016, The City Council for St. Catharines heard a proposal to amend the Garden City Plan and Zoning By-law 2013-283, to permit indoor storage at 88 Merritt Street. The owner of this property is identified on city records as 418159 Ontario Limited; it is a business called Sun Collision owned and operated by Sam Demita. On April 18th every concept of equality of law was swept aside by elected members of council and the city mayor, Walter Sendzik.

This property has a long history of abuse of law and legislation, its owner has shown not only disregard for the law but an apparent total contempt for it. Prior to this council meeting Sam Demita stood before council and requested amendments to both the Official Plan (file# 60.30.310 Vol. 2) and Zoning By-law (file# 60.35975 Vol. 2), on April 29th 2013. At that meeting, as with the council meeting of 2016, a Corporate Report was prepared by the City's Planning and Development Services, and presented to both the council and public by its Director James Riddell.

James Riddell, Director of Planning and Development Services, presented his corporate report #PDS-103-2013 and page 3 of 15 had this to say: “In recent years, the site has been occupied with outdoor storage (sea container units and vehicles) on the majority of the site. This use is not permitted in the existing Environmental Protection Area (EPA) zone, nor would it be permitted by the proposed amendment. At the time of writing this report, the outdoor storage remains in place on the majority of the site.”

The property titled 88 Merritt Street was zoned as an Environmental Protection Area and did not permit outdoor storage or dumping of mounds of asphalt and other material. Originally this site was a natural ravine which had been filled with material that had no documentation. So at the time when this report was prepared and presented the City knew of the intentional abuse of law by Sam Demita. No one at City, not the Mayor of the time Brian McMullan, Director of Planning and Development Services James Riddell, acting City Solicitor Christopher Cooper, the CAO Dan Carnegie, nor City Clerk Bonnie Nistico-Dunk could deny this fact.

Further, page 9 of the 2013 Corporate Report states, “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.” Why would Planner I, Jessica Button, who prepared the report bother to put these words in? Judy Pihach, Manager of Planning and Building Services, approved this report, and James Riddell as Director of Planning and Development Services in his monotone voice presented the report to council and knew that “enforcement of the Zoning By-law” was not going to happen.

The years between April 2013 and April 2016 found no change in the actions of the owner of Sun Collision nor were there any attempts at enforcement by City. Mayor Brian McMullan was gone from office after the Municipal Elections of 2014. In addition to a new mayor being installed some of council saw change as well. New mayor Walter Sendzik was contacted via email with photos provided of the site, that exchange resulted in an email from the Mayor's office on December 31st 2015. It stated, “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 few 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 Sendzik lied with those words and the photographs proved he lied. The mayor also said the City had been “seeking compliance” over the past few years. Words to a politician as to a lawyer are of extreme importance and when used improperly carry the burden of serious consequence. Does Walter Sendzik know what seeking means? It means the City of St. Catharines came with a hat in hand attitude to an individual who breaks the law daily and pleaded with him. The email further stated that, “The Manager of Planning is arranging an inspection of the site again based on the most recent photos provided.”

Judy Pihach is the Manager of Planning and Building Services, so it was Pihach who submitted and approved the 2013 Corporate Report and did so again in 2016. She has been fully aware of the apparent contempt exhibited for the law, and as a senior member of city staff is conversant with the Municipal Act, at least that is an expectation.

How can it be possible that the law be set aside for one individual as a meaningless collection of words on a piece of paper? This question had been asked of James Riddell, Director of Planning and Development Services, without an answer or explanation in response. The same question was asked of Mayor Walter Sendzik, he responded admitting to full knowledge of the abuses of law and then lied. Who is Sam Demita? He is the owner and operator of Sun Collision, a small business with 10 or less employees. Demita is listed as a Director and Secretary for Merritton Developments Inc. in a Corporation Profile Report together with Nino Donatelli as President and Director.

No answers appear on the surface to any of the questions and on April 18th the farce began again. James Riddell in an email dated December 21st 2015 said, “The owner has used the site for various outdoor storage uses and our inspection team has been out a number of times over the past years inspecting the site. The result has been the most recent planning application. If you wish to be notified of the upcoming meeting please provide us a mailing address. Thank you for inquiring about this site,” Riddell simply ignored every question raised of him.

At the April 18th Council Meeting Sam Demita was a no show and was represented by Stephen Bedford of Stephen Bedford Consulting Inc. As in 2013, a corporate report was prepared by Jessica Button, submitted and approved by Judy Pihach, and once again it was presented to council by the monotone voice of James Riddell. On page 3 the report states, “In recent years the site has been occupied with outdoor storage (sea container units and vehicles) on the majority of the site. This use is not permitted in the existing Mixed Use (MI) zone, nor would it be permitted by the proposed amendment.”

Reading this statement brought feelings of dėjá vu, here again the City of St. Catharines, through its Planner Jessica Button and her Manager Judy Pihach, admits to full knowledge of the abuse of law. Only this time there are no false promises of enforcement once the amendment is approved.

Several local residents brought forward their objections not to the new development plans but to an issue that began with the filling of the massive ravine. In 2009 hundreds of truck loads of fill with no documentation was dumped into a natural ravine, which is what the city keeps referring to now as, “The site has been graded and is relatively flat.” Prior to that illegal dumping of fill this neighbourhood had never experienced any flooding, and the most common term used by these residents is that they “never had any problems prior to Demita's dumping.”

One resident, Mr. Minnes, produced photos of his backyard under water, flooded in 2016 when the area experienced one of the mildest winters on record. He brought to public attention the empty promises from 2013; how the city would work on the flooding issue, and how the city had done nothing. Councillor Jennie Stevens for Merritton stood up, all surprised at the inaction of the City and all kinds of motions began to fly around the chamber. David Haywood, the second Merritton Ward Councillor, fumbled over and over with empty words till Mayor Sendzik finally interrupted him, asking what was his point.

Mayor Walter Sendzik's email of December 31st 2015 was read out on record, and the issue of law raised in relation to equality and Demita's continuous abuses without any consequences. As the email was read, Sendzik visibly buried his face in his hands, while other councillors either showed a lack of interest or a snickering grin like that of Councillor Elliot. The result was simple: the law and its equality was swept away once again.

At the end of this presentation Councillor Carlos Garcia stood up to raise some questions regarding the issue of the city's lack of enforcement. Councillor Garcia's voice sounded as if his performance was a purely perfunctory response for the audience. Director of Planning and Development Services, James Riddell answered Garcia's questions that “there have been site visits and discussions with the applicant.” As more questions were asked Riddell simply washed it away with, “we try to work with the applicant but we will be vigilant. It's been a difficult challenge situation and our philosophy is to work with the applicant.”

Once Riddell finished and Councillor Garcia had sat down with only a whimper displayed, Stephen Bedford came forward to present the grand plan. At first Bedford fumbled with his button attempting to impress the audience with images of the site's history. He finally opened with the past incarnation of this site as a building supply yard with bricks and other materials. Then a photo of the leveled and graded site as it is today. Stephen Bedford avoided, in fact intentionally omitted, to show photos of the natural ravine which had been filled illegally.

Bedford continued his presentation to council admitting to the fact that some “outdoor storage which is illegal is on the site” and then quickly added, “the owner could not develop this property in the manner he wished.” This last statement was somewhat difficult to understand, as he did not elaborate any further.

As his trump card, Bedford brought forward a planned water management pond that will be established on the property. According to the plan, “all the water that is dropped on this property, it will end up in the water management pond. The pond will only deal with the water that falls on the ground, it will not deal with the water that is underground as it's fairly flat, that surface absorbs water.” Depending on which end of the property this “water management pond” is located then a glaring question demands answering. What happens to the water at the other end of it? Such a pond as described, intended to catch surface water, is simply only a comical waste and potentially a public health issue with breeding mosquitoes.

Regardless of how ludicrous this “water management pond” may be Councillors' eyes lit up. Both Councillor Stevens and Haywood seemed to be excited by such a proposal. Their questions made it appear that such a “pond” would have the potential to alleviate flooding problems that had damaged homes, yards and the public park. All in all it became an opportunity to divert attention from the real issues brought to public notice.

The gems to remember from this council meeting come from Director of Planning James Riddell and Stephen Bedford of Stephen Bedford Consulting Inc. Riddell in his presentation of the corporate report said, “literally we are just adding a use by removing the site storage use, there is some open storage on the site that is proposed to be removed once the amendments are approved.” Then Stephen Bedford said during his presentation, “when I walk the site, there is what I would call a ravine, it's still there.”

Here we have a situation where the representative of the owner of the property admits to “illegal” use, the Director of Planning and Development and Manager of Planning and Building Services, James Riddell and Judy Pihach, admit to illegal use of the site. Mayor Walter Sendzik admits in writing of problems and illegal use of the site, and yet the amendments are passed. Throughout this farce both of the city's newspapers were represented. Scott Rosts from Niagara this Week tweeted some points, The Standard's Karena Walter, who had documentation sent to her prior to the council meeting, completely avoided the issue of law. Journalism at its best; even the email by the mayor was not found newsworthy.

Riddell had said at the end of his presentation that “this proposal does not offend any of that area.” The council meeting was on April 18th 2016 and the amendments were approved in favour of Sam Demita again. These photos were taken showing the site in its present day condition.

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