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Councillors ignore $20K legal advice on condo

The Ridgeway Herald special web release

Not even the opinion of an independent legal professional at a cost of $17,000 plus disbursements could sway three Fort Erie town councillors from their determination to stop the Bay Beach condominium project.

After a four-hour closed door session March 21, Bob Steckley surrendered while John Hill, Don Lubberts and Paul Collard stuck to their guns and voted to risk a multi-million dollar lawsuit and relegate Bay Beach to a state of limbo for years while lawyers make a lot of money.

John Mascarin, a partner with the law firm of Aird and Berlis of Toronto, an expert in municipal law and co-author of five books on the subject, briefed councillors on his 30-page report in the closed meeting.

His report reiterated in excruciating detail the town solicitor’s opinion. The four councillors didn’t believe Heather Salter in February, so they engaged Mascarin for an independent opinion.

“I’ve been opposed to this project from the beginning,” Steckley said. I’m still opposed to this project. I think it’s a bad deal for the Town of Fort Erie.”

“Everybody who knows me knows I’m a bit of a gambler, but I only gamble with my own money. I’m not going to gamble with the town’s money,” he said.

“There isn’t going to be any rejoicing in the Steckley household tonight.”

Lawsuit likely

Mascarin’s report said the agreements with the Molinaro Group are binding and the Town would most likely be sued for breach of contract if it unilaterally backed out of the deal or took any steps to prevent completion of the project.

“It is very likely that the Molinaro Group will sue the Town for breach of contract if Council chooses to proceed with any of the options to abandon the project. Based on the relevant legal principles and case law, in our view, the chances that the Molinaro Group would be at least partially successful in a lawsuit against the Town are good,” the report reads.

“In all likelihood, any lawsuit by the Molinaro Group against the Town will not be limited to a claim for breach of contract. As a general rule of practice, litigation counsel will sue on multiple and alternative grounds and, in some cases, by instituting multiple proceedings.”

Mascarin also wrote that councillors could be personally exposed to legal action “on the grounds that one or more council members were biased and ought not to have participated in the vote.”

Mascarin wrote that councillors generally are immune from liability as long as they acted in good faith, but a litigant could show that they “acted in bad faith for a whole list of reasons, including voting in favour of ‘repealing’ bylaw 26-10 without any legitimate planning justification, being biased, ignoring the advice of Town staff, breaching valid contracts, and exposing the Town to a large claim for damages and costs.”

Faced with no choice

Faced with this opinion, Steckley was visibly emotional.

“Changing my mind on this issue, I’m not happy about. I feel like I have no choice. I don’t like having no choice. I think (the project) sets a dangerous precedent for waterfront property. I think what we’re going to see down the road is something we’re not happy about.”

Hill was also emotional as a motion to proceed with the project was put on the floor for a vote.

“I’m ashamed that I put so much effort into this and we’ve come to this. We have given up a tremendous amount. It’s not the waterfront. It’s not about putting in a 12-storey condominium project on one of our most pristine pieces of property that we have. It’s about listening to the people.”

“I hope if this passes that we do not see condominium towers going down around the loop to Point Abino because I will fight as a council member a second condominium tower.”

“I came to this council because people put me here because they wanted to see us collectively do the right thing, to probe, to ask questions, to turn over rocks, to make sure this is an effective council that works for the people that put us here.”

Collard defended his decision to change his mind on the endorsement of the project and support the proposal to reverse the zoning bylaw and stop the project.

He said that councillors were not afforded enough time during a special closed meeting held after budget deliberations on Feb. 9 when they voted to proceed with Molinaro project.

Less than a week later on Feb. 14, Collard introduced a motion to repeal the zoning bylaw and stop the project which ignited a firestorm in the community.

“When I considered what I had done then, I had the courage to say I didn’t do all I can do and I moved to reconsider it,” he said.

“I stand by my vote to reconsider and to go down and change this development. I did it because I thought we could look at every option and maybe work out alternatives,” he said.

Lubberts said the public will lose access to the beach.

“I will never, ever say that this is a good project. I can see what’s going to happen in the future. We are not getting a piece of property on the other side. The east side of this development is not going to be open public space according to the agreement. Mr. Molinaro is getting all of the property on the south side of Erie Road and access is going to be over top of an underground parking garage.”

“I hope I’m wrong on that, but that’s the way I see the contract,” he said.

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