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The Bay Beach sideshow

(June 21 12) Any discussion at town council about the Bay Beach condominium project is just a sideshow.

Short of ripping up the agreement with the Molinaro Group, it is out of the hands of council for now.

At this stage in the development process, it’s up to the Ministry of Natural Resources which is currently reviewing an “overall benefit permit” application for preservation of the Fowler’s toad.

[Note: The MNR has since approved the overall benefit permit.]

When the permit will be drafted is anybody’s guess, said Joad Durst, regional area supervisor for the MNR.

This is a complicated case and quite a lot of feedback has been offered by the public during the comment period, he said.

There is no schedule or timeline the MNR must follow – it’s done when it’s done, he said.

Fowler’s toad is an endangered species in Ontario where it lives in a handful of small areas on Lake Erie. With its miles of sandy shore, Fort Erie is one.

Some of the land retained by the Town in the project will be given over to a protected habitat approximately where the Schooley Road allowance is located, north of the current concession stand.

There will also be a narrow strip of naturalized habitat along the shorewall.

These are the main points of the permit application. Now, biologists are studying it.

Here’s a recap

Ontario Municipal Board extensively examines the project and rejects the appeal of the zoning amendment.

An appeal of the decision to the OMB chair is rejected. A judicial appeal of the OMB decision is rejected.

Councillors Don Lubberts, John Hill, Paul Collard and Bob Steckley make first moves to back out of the Crystal Beach Gateway Project deal with the Molinaro Group early in their term of council in February 2011.

They engage an outside lawyer who tells them what the Town solicitor has said: they are in for a million-dollar lawsuit if they renege.

Councillors narrowly vote to affirm the project. Steckley changes his mind and casts the deciding vote.

A group of six people sue the Town and Molinaro, claiming the proposed land transfer is illegal.

Lubberts accuses the mayor, the clerk and the Town solicitor, Heather Salter, of changing the zoning bylaw amendment before it was presented to the OMB. Lubberts apologizes for this in two separate Town council meetings in December 2011.

Molinaro begins process of registering land as “title absolute” so it can move forward with a condominium plan Unknown parties contest this formality.

Lubberts seeks a document from the Town solicitor – a survey document that he says shows the Town does not have clear title to the Bay Beach lands.

He is told he must file a Freedom of Information request because the document does not directly pertain to an issue that requires council action, and he therefore has no more right than an ordinary person for access to confidential information.

Council goes into closed session in April 2012 and a week later, Salter is relieved of duties.

Ontario Superior Court judge completely rejects the lawsuit filed a year earlier and orders costs against the plaintiffs.

Plaintiffs file notice of appeal.

On with the sideshow

Most recently, Lubberts referred to the survey document he wanted – and was given – from the Town. He says it proves two things: the Schooley Road allowance is not closed; and an additional private road exists on the property.

These issues nullify any deal with Molinaro to develop the property, he said.

He calls it “municipal survey 751” and has not shared the document with other councillors or the public. He says it is dated 1927 and signed by the minister of the department of lands and forests.

Acting CAO Ron Tripp said the survey is one document from several boxes in a file that Salter had accumulated to prepare a written report in response to Lubberts questions at council meetings this winter and spring.

Now that she is gone, a lawyer has quoted the Town a fee of $26,000 to complete the work to answer the question of the Schooley Road allowance and a further $10,000 to deal with the private road issue.

“There’s been statements put forward by councillor Lubberts as fact and that’s simply not true,” he said.

“Specific reference is made to particular documents in points of time but don’t bring together the century of surveys and identification of roads associated with this location,” Tripp said.

“It’s really quite simple for this council: either accept the advice and recommendation by (Salter), or get further analysis from another solicitor.”

Lubberts said he had stated numerous times that he would never support the Town spending any more money on the development project.

With the legal cost of the two issues combined with a surveyor’s fee, “that brings you to like $39,370 which would bring you to around $40,000,” Lubberts said.

“So I don’t know how this motion got forward with this here report because I would never support the Town spending any more money on the Bay Beach project,” he said.

On that point he agreed with Tripp – at least the acting CAO’s recommendation against retaining a lawyer for this matter.

On the interpretation, however, of Lubberts’ request a week previous to have Tripp report on the implications of “municipal survey 751” – that’s where they disagreed again.

At the June 11 meeting, Lubberts wanted to know why the draft conditions for the Toad permit made no mention of the Schooley Road allowance and the private road that he insists exists and how the Town was “going to deal with these two issues”.

Tripp said an MNR lawyer told him on the phone that “their position is it’s got nothing to do with them. It doesn’t need to be referenced.”

Lubberts didn’t believe him.

Tripp also said that he got an estimate of the cost from a lawyer who specializes in this type of matter.

“In recent months I’ve been doing research in terms of how we can definitively demonstrate to everybody, which we haven’t been able to do because our opinion hasn’t been accepted, the status of Schooley Road and the balance of the Bay Beach lands,” he said.

“Perhaps council could consider a motion to retain those services tonight.”

Steckley, who chaired this portion of the meeting, asked him, “could you have that report ready by next week?”

“I could,” said Tripp.

Steckley: “That’s a week councillor Lubberts. Can we wait for next week and we’ll have a report.”

Lubberts: “That’s exactly what I was going to ask for. Thank you, Mr. Tripp. Thank you Mr. Chair.”

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