OVERVIEW
BAY BEACH DEVELOPMENT PROJECT
Background. The Fort Erie Waterfront Preservation Association (FEWPA) is a coalition of local organizations, businesses and individuals who believe that public waterfront land should be protected for future generations to enjoy. FEWPA strongly opposes the development of a 12-storey condominium tower in Crystal Beach (the previous limit was 2.5-storeys). The high-rise is to be built on a beautiful stretch of publicly-owned waterfront property known as Bay Beach. A substantial portion of this land will be transferred to the Molinaro Group (a Burlington-based developer). Although the beach will remain public, much of its natural beauty will be destroyed and nearly half the public parking spaces for beach-goers will be eliminated.
Bay Beach lands are rezoned to permit a 12-storey building. Ignoring the public’s long-standing opposition to privatizing our waterfront parkland, the previous Town Council embarked on a public-private partnership with the Molinaro Group. Key decisions involving the Bay Beach project were made behind closed doors and the public’s views were sought only after a course of action was already decided upon. On March 1, 2010,the Council passed By-law 26-10 to rezone the property despite the fact that over 90% of the people who spoke at a Council meeting, submitted a public comment, or signed a petition or proxy were opposed to the project. By-law 26-10 increased the height and density permitted on the property in exchange for certain “community benefits” the public does not need (such as a meeting room in the condo building). In response to this vote, 13 appeals to the Ontario Municipal Board (OMB) were filed, including an appeal by FEWPA. As a result of the OMB appeals, the final disposition of By-law 26-10 was delayed several months until after the municipal election in October.
Council votes to transfer public land to the Molinaro Group. In June 2010, the Council approved a Purchase & Sale Agreement to transfer Bay Beach waterfront lands valued at $2.7 million to the Molinaro Group. The P&S Agreement stated that after certain conditions were met (including the issuance of an MNR Permit to protect the Fowler’s Toad), construction of the 12-storey condo tower would begin. The accompanying Community Benefits Agreement limited Molinaro’s expenditures for the “community benefits” and also recognized the Town’s right to amend or repeal By-law 26-10 at any time.
New councillors elected in October. In the municipal election held on Oct 25, 2010, the incumbent councillors for Crystal Beach and Ridgeway who supported the condo project were soundly defeated, getting only 20-25% of the vote. Altogether, four councillors were elected who share FEWPA’s view that public waterfront lands should be protected. The mayoral race was extremely close – the candidate who shared our view lost by only 5 votes out of nearly 10,000 votes cast! Fortunately, the new Council is very different from the previous one – a majority of the seven Council members have stated publicly that they oppose the Molinaro project and the construction of any high-rises on the waterfront.
OMB rules the new Council is not fettered. FEWPA’s legal team led by Ontario barrister and solicitor Eric Gillespie presented a strong case against the Molinaro project at the OMB hearing held on Nov 1-10, 2010. Board Member Reid Rossi announced his Decision on Jan 28, 2011. Although he concluded that the proposed development did not violate land use planning policies and dismissed the appeals, he also ruled that the new Council was “unfettered” and has the absolute legal authority and right to change the zoning for the Bay Beach property if it so desires.
New Council decides to repeal rezoning of Bay Beach lands. On Feb 14, 2011, the new Council voted 4-3 to begin the process of repealing By-law 26-10 in order to return to the former zoning of 2.5 storeys. This change would prevent the Bay Beach property from being transferred to the Molinaro Group.
Council learns taxpayers will NOT be liable for millions in damages. Also during February, FEWPA hired Ontario barrister and solicitor John Keenan who has practiced complex corporate and commercial litigation for many years. When he spoke to Council in late February, he explained that the contract between the Town and the Molinaro Group is a contingent contract. Whether or not the terms of that contract ever become legally binding depends on the possible occurrence of a number of conditions sometime in the future. FEWPA’s lawyer cited case law showing that the Molinaro Group is not entitled to any damages if By-law 26-10 is repealed. The controlling case law is Pacific National Investments Ltd. v. Victoria, 2000, SCC 64, a decision of the Supreme Court of Canada. He stated unequivocally that Fort Erie taxpayers will not be liable for millions in damages if By-law 26-10 is repealed.
Council reverses decision to rezone Bay Beach lands. In a surprise move on March 21, 2011, the new Council voted 4 to 3 to proceed to build a 12-storey condo tower on the Bay Beach parkland in partnership with the Molinaro Group. People were stunned when they learned that the motion to reverse Council’s recent decision was introduced by a councillor who had opposed the Molinaro project for years. He said he was convinced to change his mind after listening to the lawyer from the third party law firm even though the lawyer who met with Council in closed session was not an experienced courtroom litigator.
FEWPA files motion to appeal OMB Decision. On March 24, 2011, FEWPA’s OMB lawyer Eric Gillespie filed with the Divisional Court a motion for Leave to Appeal the OMB Decision. FEWPA’s position is that the Ontario Municipal Board committed errors of law in reaching its Decision. Specifically, the condo development is to be built on the shoreline of Lake Erie on land which is properly classified as a Dynamic Beach Hazard. Provincial and Regional policies clearly state that no new development should occur within a Dynamic Beach Hazard area because there is a potential risk to public health and safety and risk of property damage. Although we knew judges rarely overturn OMB decisions, FEWPA thought it was worth filing a Leave to Appeal motion because the Town-Molinaro plan to build a 12-storey condo at the 100-year flood line would set a dangerous precedent.
Fort Erie taxpayers file lawsuit to have Bay Beach condo project declared illegal. On April 20, 2011, a group of taxpayers filed a suit with the Ontario Superior Court of Justice against the Town and the Molinaro Group. The plaintiffs’ Statement of Claim states how the Town went beyond its statutory authority and it asks the Court to grant a permanent injunction to prevent the Town from conveying the deed to the developer. FEWPA is not a party to this lawsuit but it is supporting the fundraising for the legal challenges. On May 7, the Council voted 4-3 to put a $50,000 cap on the amount the Town could spend to defend against the Statement of Claim; the Council also prohibited the Town from providing a legal defence on behalf of the Molinaro Group. The case will be heard in Toronto on Feb 8, 2012.
Town finally reveals the truth – we’ll lose more Bay Beach lands. At an overflow Open House on August 24, 2011, the Town finally confirmed that nearly 3/4 acre of prime lakeshore parkland and sandy beach (worth over $1.3 million) will be permanently roped off to help the Molinaro Group obtain a required permit from the Ministry of Natural Resources (MNR). The taxpayers will have to maintain the area as a protected habitat for the Fowler’s Toad (an endangered species living on the condo site) and risk paying large fines if any toads are hurt. The MNR permit application (initially filed in July 2010) was kept hidden from the public and councillors until a FEWPA supporter obtained it through a Freedom of Information request. We were astonished to learn that the Town had posted false information on its website for over a year. The beautiful Open Space parkland and recreational area we were promised (badminton, ice skating, park benches, etc.) will be replaced by artificial sand dunes that the public will be forbidden to walk on.
Judge declines FEWPA’s request to appeal OMB Decision. Judge Peter Hambly agreed with FEWPA that the Leave to Appeal case involved a significant issue (public safety) and extended the hearing to two full days in August 2011, which was very unusual for this type of case. He ultimately decided not to grant FEWPA’s request to appeal the OMB Decision, citing the importance of a Holding Provision in an amended version of By-law 26-10 that the Town’s lawyer introduced during the hearing (which had never before been made public). The Judge concluded that the Holding Provision ensured that the Niagara Peninsula Conservation Authority (NPCA) would be able to determine if the final plans for the building and shore wall are sufficient to mitigate the Great Lakes Hazards.
Large condo storm drain will dump water on Bay Beach. In early Nov 2011, the public learned that Town Staff had agreed to let the Molinaro Group build a large storm outlet (drain) that will dump water directly on the sandy beach. All the water running off the condo roof and podium plaza and all water being continually pumped out from around the “underground” parking garage will be directed to the beach rather than the municipal storm sewer. In addition to causing significant beach erosion, it could certainly have a harmful effect on the beach-goers and the Fowler's Toad. The type of stormceptor to be installed is specifically not recommended for public beaches and swimming areas because there is a risk that contaminated water will be discharged after heavy storms.
Council is pressured to grant Site Plan Approval. On Dec 12, 2011, the Council voted 4-3 to authorize the execution of a Site Plan Agreement after several weeks of strong pressure by the Mayor and Staff. The developer’s planner threatened to appeal to the OMB if the Site Plan wasn’t approved immediately, even though the Molinaro Group did not yet own the property and the Site Plan was incomplete. The Council agreed to let the Town Solicitor draft the final Site Plan Agreement and the Mayor execute it, in violation of By-law 26-10 which requires the Council to approve the final Agreement. In granting Site Plan Approval, the Council gave up land worth over $4 million to help a commercial developer make a profit!
Public outcry about proposed Toad habitat. In response to a public notice posted on the Environmental Registry, more than 35 Bay Beach supporters submitted comments to the MNR voicing their concerns about the Town’s proposal to construct an artificial habitat for the Fowler’s Toad on public lands. A permit is needed because the 12-storey condo tower will destroy an important part of the endangered species’ natural habitat. The numerous comments submitted by experts, environmental groups, and the general public explained how the proposed plan would introduce major risks and could annihilate the small Toad population living in our area. If an MNR permit is not issued, the deed cannot be transferred to the Molinaro Group.
HELP US SET THE RECORD STRAIGHT
Bay Beach is KEY to the future economic success of Crystal Beach, a unique waterfront community with a rich tradition. The Bay Beach parkland can easily be enhanced by using the parking revenue that's generated by the tens of thousands of tourists who visit our community each year. People are searching for a place to unwind and relax with their family ... they want to get out of the city to experience the other side of life -- small-town charm, warm people, and great entertainment. If sound strategic planning is done that includes a good marketing plan, Crystal Beach will flourish. It will be known as a place that values nature, a wonderful place to live, and the best place to open a business.
The Molinaro project will cost taxpayers a bundle! At a minimum, we'll lose over $4 million of prime waterfront property and we’ll be saddled with up-front costs that could amount to hundreds of thousands of dollars. The 87-unit condo will bring in less than $70,000 a year in tax revenue (which is unlikely to cover the annual maintenance costs). Here’s why – In addition to losing about $40,000 in parking revenue, the Town agreed to pay all the future costs to maintain the toad habitat and pay any fines imposed by the MNR if the permit is violated. Taxpayers will also have to pay for the regular inspection, cleaning, and maintenance of the large storm outlet (stormceptor) that will dump water on the beach. The existing washroom facility will be removed and a replacement will be built much closer to the lake in a flood hazard zone on the beach (which is likely to be damaged every winter). When the deed is transferred to the Molinaro Group, the Town will not receive a penny! Perhaps most importantly, the Town will lose its most valuable asset (the Bay Beach parkland) which will make it very difficult for our community to experience significant economic growth in the future.
This is a great deal for Molinaro but not for us. Under the signed Purchase & Sale Agreement, the Molinaro Group has no obligation to construct anything on the Bay Beach lands for years, including any community benefits. Yet Molinaro will have total ownership and control of the waterfront property. If Molinaro does not pre-sell a majority of the condo units by Dec 31, 2013, he may simply walk away from the project with very little financial loss to his company and no obligation to the Town of Fort Erie or its taxpayers. If that happens, he will still have a “right of first refusal” to repurchase the property during the next five years. If this is such a good project, why is the Molinaro Group unwilling to invest any real money in it? Why do they prefer to invest the money of the taxpayers of Fort Erie? This is a truly one-sided contract that we believe is invalid.
Fort Erie is definitely open for business, contrary to the aggressive PR campaign being waged against the people who want to save Bay Beach. FEWPA is proud that all of the information we distribute is accurate. We believe that everyone should know the truth. We are not against development to encourage new businesses and job opportunities. We are for smart development that will help Crystal Beach and all of Fort Erie. We welcome businesses that are willing to invest their own money in our community.
STOP IT NOW OR IT’S FOREVER!
The Molinaro project is just the beginning. It will serve as the precedent-setting catalyst for a host of other 12-storey high-density buildings all along the waterfront. Other communities are acquiring more waterfront lands for the public’s enjoyment, not privatizing their public parks.
Please help us out. After years of intense effort to stop the Bay Beach development project, we are now in the final stretch. FEWPA raised approximately $93,000 for the OMB appeal but those funds have been spent. More money is now needed for the Statement of Claim lawsuit to save Bay Beach. This final support will help our legal team obtain a permanent court injunction to prevent the Town from conveying the deed to the developer.
With your help, we stand an excellent chance of winning. If you care about keeping the village character of Crystal Beach and protecting our waterfront, please make a generous donation today! |
