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Councillors take toads hostage to stop condos

Toad habitat overlay

The main elements of Bay Beach and the protection zones for Fowlers toad are overlaid on an aerial photo. Click to enlarge. (Edited Mike Cloutier)

(Sep0512) Since almost all discussion about the Bay Beach condos over the past 20 months has been absurd, there was no reason to expect a special meeting of town council on a sunny Friday afternoon on July 27 would be any different.

The sideshow this time centred around the Ministry of Natural Resources’ approval of the Fowler’s toad protection plan.

The stated purpose of the meeting was to officially acknowledge the MNR’s decision. There was a 10-day comment period after which the permit would be final. The period would end two days later on Sunday. No action was required of council unless there was an objection to the permit.

The unstated purpose was to provide a forum for yet another round of condo bashing, staff bashing, consultant bashing and lawyer bashing.

The usual assortment of opponents recited variations on the same old themes — the biologists are wrong, the engineers are wrong, the lawyers . . .

MNR issues permit

An overall benefit permit (OBP) was issued by the MNR to the Molinaro Group, the Town’s partner in the 12-storey beachside condo project.

The OBP grants an exemption to the Endangered Species Act and allows destruction of the toad’s habitat as long as alternate hiding and hibernation space is provided.

The toads live and hibernate in the soft sand below the shorewall and can be found in areas of Fort Erie other than Crystal Beach.

Toads relocated for construction

Before construction, the toads living on the site will be captured and transplanted nearby to other Town-owned beach land. Fences will keep them out of the construction zone.

Special habitat areas will be constructed as part of the permanent development. They will be roped off from people and educational and interpretive signs will be posted.

The largest protected area will be north of the existing beach above the shorewall that is intended to be a safe winter hibernation zone. The existing berm will be cut down, beach sand deposited and some vegetation such as shrubs and grasses planted.

The toad’s preferred habitat now is the foundation of the dance hall because it’s not usually disturbed by human beach-goers.

Areas protected for toads

Strips of land around the planned shorewall and revetments where the dance hall foundation currently stands will also be protected zones.

It’s expected that the toads will naturally migrate to the protected zones when the fences are removed.

Councillor Don Lubberts wondered where the captured toads will be placed. He figured there was no area that wouldn’t infringe on public beach space or private property.

“How are we going to make a habitat for the toad during the construction if it’s on this site because, I don’t know about any other councillor here, but I don’t know of any other property that we own, that the Town of Fort Erie owns, on Bay Beach.”

Always a rich source of absurdities, Lubberts provided many of the major examples.

Lubberts unaware of Town land

“If we’re going to relocate the toad towards the Ashwood entrance,” he continued, “that’s private property.”

The councillor for Crystal Beach, Don Lubberts,  was unaware of the extent of publicly-owned beach land in his ward.

He continued: “The people that own that property, are they going to be aware of this is what we’re doing, so be careful, for them, to ask them, to be careful. Or are we just going to let these people roam around and not know that, you know, we’re using this as a toad habitat in the meantime while we’re doing this construction. That’s my concern, not whether we can move them there and I don’t agree that we can’t do that. I’m just saying we need to make sure we let the people know what’s happening around the area so that when we’re doing this thing that people are aware of it and that they’re a little bit more cautious to the toad while the construction’s going on.”

Acting CAO corrects him

Perhaps realizing what it was that Lubberts did not know, acting CAO Ron Tripp ended discussion on this one [of many] tangents over the four-and-a-half hour meeting.

“I would hope that Councillor Lubberts doesn’t think that’s privately-owned. The beach is Town-owned. There are adjacent private properties above the shorewall, but the beach is ours and toads already exist there.”

The Town owns 1,000 feet of beach from the Nowak fence at the westerly limit all the way past the Ashwood Avenue entrance, nearly half way to the pier.

Director of planning Rick Brady said the MNR biologist has identified suitable places for transplant during construction, but the locations will “be kept quiet” to prevent harassment of the toads, he said.

Councillor Bob Steckley, who was chairman of the meeting, said there are “passionate people on both sides of this issue . . . some that love the toads and some that hate the toads because of the delay it has caused the development.”

The capture and relocation of toads will be under the supervision of an MNR biologist.

For 10 years after construction, the toads will be monitored by the Town and reports filed for the MNR. Molinaro has paid $50,000 toward this cost which is expected to be a “few thousand” per year.

The Town will maintain the toad zones but it’s not expected to cost more than it does now to maintain the land.

Council urged to breach contract

The first two hours of the meeting was dedicated to public delegations. A handful of people were each allowed five minutes to speak, but the questioning of a few speakers dragged it out.

Mostly Americans spoke against the permit and urged council to breach the Town’s agreement with Molinaro and refuse the conditions of the permit.

Marcia Carlyn, a resident of Virginia and organizer and fundraiser for various anti-condo initiatives, said breaching the contract would be no problem for the Town.

She said the purchase and sale agreement states disputes will be decided by an arbitrator and Molinaro has no recourse with a lawsuit.

“That’s my understanding,” she said. “The lawyers have told me that.”

Councillor Stephen Passero asked her who they were.

“I ask that because the last time your side of the issue presented us a lawyer, he told us the same thing . . . and he didn’t do too well.”

Passero was referring to John Keenan who represented a group of six people in a lawsuit to stop the development. The plaintiffs lost the case and were also ordered to pay costs.

“I’d rather not say,” said Carlyn, “but it’s been at least two lawyers that said that.”

Among other things, she also said a road allowance that is marked on a 1927 survey still exists and the toad habitat will cause people to lose their “common law right of access” on the allowance.

This survey — as explained by Lubberts — shows a different location of Schooley Road and another road allowance running parallel to the lake over a number of properties.

“I’m not a lawyer,” Carlyn said, “but I’m quite sure anybody could take a court action for access to the road allowance.”

Lawyer provides legal opinion

John Mascarin is a lawyer. He has been working on the Molinaro file since 2010 and has been making regular appearances at council meetings ever since the Town solicitor was fired in April.

“I would suggest to you the experts have spoken,” he said. “You have it in writing and you have what staff have determined is an acceptable overall benefit permit that has been signed by the minister.

“To not accept it at this time after the minister has considered all of the consultations, submissions and reports that have been submitted would, in my view, lead to the potential for legal action against the Town.”

If there is a road allowance and if it is necessary to close it, the council can — and must, by virtue of the agreement with Molinaro — simply close it by bylaw, Mascarin said.

“Everything that I’ve seen, and including the documentation by the former Town solicitor, indicates there was legal opinions from not one, but two legal firms that have done independent title searches and have provided a written opinion,” he said.

“Based on those opinions, Ms. Salter also indicated it was her legal opinion that the road allowance was closed,” he said.

“I have not seen anything that’s definitive, cogent and determinative evidence that the road allowance is still open,” Mascarin continued.

“I’m having difficulty understanding how the issue can still be brought forward when there’s nothing apart from some comments that someone has asked someone and that the road allowance is still open. That is not a fact. Everything I’ve seen points to the direct contrary of that.”

Councillor John Hill did not accept Mascarin’s explanation, nor Tripp’s nor Salter’s, which was provided before she was fired.

“We’ve heard that councillor Lubberts’ conclusion is inaccurate — based on the research that he had done and has provided this council. But other than a verbal, we haven’t seen anything to the contrary to say that councillor Lubberts is, in fact, wrong,” he said.

“I am somewhat taken aback in the fact that we don’t have a written opinion, whether it be from Ms. Salter or otherwise, with regards to this particular issue and, who knows, other issues. I don’t know. I don’t want to make a comment on that,” Hill said.

Previously in July, council refused to hire a lawyer to sift through Salter’s research and prepare a written answer on the road allowance issue and decided that no further action be taken.

“I’ve said it in the past,” said Tripp. “There isn’t a simple piece of written material that I can give to council to demonstrate the answer to the question that continues to come up.

“You were given that answer verbally by Ms. Salter. She had done all the research. Another legal firm had done all the actual work concerning actual title, and it was part of the analysis that Ms. Salter did,” Tripp said.

‘Salter is no longer with us’

“No I cannot provide that to you because it wasn’t written and Ms. Salter is no longer with us,” he said.

Hill insisted that there should be something registered on title and that it would be simple to produce.

“That’s what I believe to be correct,” said Tripp. “It’s definitely not on title. We have the title as published by the land registry office and it’s not on title.”

On and on like this it has been since February when Lubberts introduced the road allowance issue. Indeed, every matter dealing with the $30 million partnership between the Town and Molinaro Group has been like this.

But it wasn’t the only dead matter — concluded business, as Tripp calls it — that squirmed its way into the discussion as these things do frequently during regular meetings of council.

Lubberts interprets case law

Lubberts, who wanted the Town to hire Keenan for independent advice in February 2011, referred to a court case in British Columbia where the council changed its mind on a public development project.

The city lost the case and was ordered to pay damages, but only because facilities were built, he said. In the Bay Beach situation, nothing has been built, so there’s no damages to pay if the Town quits the agreement.

“You can correct me if I’m wrong, but that’s the way I read that case,” Lubberts said.

Lawyer interprets case law

Mascarin corrected him.

The Pacific National Investments case “actually took a good chunk of my opinion back in March 2011 and the erroneous interpretation put on it by Mr. Keenan who purported to advise certain members of council that a municipality has an unfettered discretion to do anything — that it can get out of any deal without any consequences.

“That is absolutely, factually, legally, logically wrong. The Supreme Court of Canada (in the PNI case) says municipalities will be bound by their business contracts. They will not be free to break them on a whim. They will have to pay compensation to the other party, barring an expressed provision denying any form of compensation or damages.”

Lubberts threw himself in front of everything. As the meeting approached the fourth hour, the tempo increased.

“I don’t care if they are experts, and they’re leaders in their field,” he said about the permit. “You had experts put this thing together. There are experts that commented on this and said this is not the right way to go. So now, like councillor Hill says, you end up with a stalemate.”

‘Does the toad know that?’

His point ostensibly was about the revetment structure near the hibernation zone. A shallow sloped wall buried in sand that the toads are expected to climb.

“I had a telephone conversation from a member of the MNR and I questioned the fact that the revetment wall, the rocks get closer to the surface of the sand as you go farther away from the lake.

“The comment from the expert at the MNR was, ‘I don’t have a problem with that’. And he also said, ‘Don, you have to understand the toad isn’t going to hibernate there. He has to go past the wall.’ And I asked, ‘Does the toad know that?’

“That is the response I got from the MNR and I’m talking to people that work in their office,” Lubberts said.

After a few minutes of lecture in that vein, he launched back into the road allowance.

“Mr. Mascarin, you can say what you want. Nobody has shown me that it has been closed. Nobody has shown me that it is open. Which way do you want to go? It works both ways.”

Then he suggested the whole matter of the permit be deferred “and give time for everybody to bring their evidence that either the road allowance is open or it’s closed.”

Mayor Doug Martin reminded council that to defer the matter would have the same effect as accepting it.

Lubberts then informed council he would make a motion to reject the terms of the overall benefit permit.

Chairman Steckley informed Lubberts that a motion was already on the floor and that’s what the councillors have been debating. It must be dealt with first.

“Well if we’re going to go that way,” said Lubberts, “I’d like to make an amendment to the motion that’s on the floor.”

The motion on the floor was simply to acknowledge the MNR’s decision to grant the permit. The permit allows the Molinaro Group to continue on with the project, which is what Lubberts wants to stop.

In his amendment he wanted the Town to add an additional condition on the land sale to include a clause that the Town must first close the road allowance shown on the 1927 survey.

‘Nonsensical’

Calling it “nonsensical,” Mascarin said the agreement is signed and executed. The Town can’t change it, but Molinaro could be asked to accept a new condition.

“It’s four o’clock,” said Lubberts. “We could give Mr. Molinaro a call. If he agrees to amend, then we’ll amend” before the comment period on the permit expires.

The audience was amused. “Please, please,” Steckley said to the gallery for the second or third time during the meeting.

Eventually, Lubberts withdrew the amendment — only to revive a version of it later.

Benefit permit ‘saddens’ Hill

After giving their summation speeches, councillors voted to accept the permit, and Lubberts promptly put his motion on the floor — the earlier defeated amendment.

Councillor Paul Collard asked what he thought were probing and insightful questions.

Hill made another speech.

“I’m saddened that we didn’t see the benefit” of rejecting the permit, he said. “I also continue to be saddened by the fact that I don’t believe that we will be moving forward and that there will be continued disparaging comments made to members of council.”

Lubberts, Collard and Hill have continually voted against everything about the Bay Beach project that has come to council since they were elected.

“This is one more attempt to delay this process,” said Passero. “It’s 4:30 on a Friday afternoon and I’m going to be voting no. This is ridiculous.”

Martin’s exasperation was obvious — exasperated that Lubberts kept hammering, exasperated that Hill and Collard encouraged him, exasperated that Steckley was not controlling the discussion.

“This is a decided matter,” he said. “This motion is out of line. It doesn’t make sense, asking us to agree on something we don’t know exists. I find this motion to be totally out of order.”

Allowed to speak again, Lubberts wanted to argue with Mascarin. “To say (the road allowance) doesn’t exist and you don’t believe it ever existed and there even was an original road allowance. That’s what the original road allowances are called. This is an original road allowance that was laid down by the Crown and this is a certified copy . . .

Martin: “We are continuing to go back to the same path of the road allowance that has been determined to be off-topic.”

Lubberts: “Point of order, point of order, point of order. I have the floor.”

Steckley: “Councillor Lubberts, you put a motion forward. We’re not debating the road allowance. That’s not going to happen. We’ve been through the road allowance. We’re not debating it. You’ve got your motion on the floor. I’m going to allow the vote to happen. You don’t need to sit there and try to convince us it’s open. Staff doesn’t need to convince me it’s closed. That decision has happened too many times already. Any further comments without trying to convince me it’s open or closed?”

Lubberts: “Let me remind you that I don’t appreciate that Mr. Mascarin can make all the comments that he wants on municipal survey 751 and I’m not allowed to make any comments at all.”

Steckley: “You did make comments.”

Lubberts: “I’d like to comment on what Mr. Mascarin said about municipal survey 751’s existence.”

Steckley: “And you did.”

Lubberts: “It is registered on title.”

Steckley: “You said that. You’re on record as saying that.”

The vote was called and the motion lost. Meeting duration was four hours and 34 minutes with a 10-minute break.

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