editorial viewpoint
Floods Swim Upstream To Snare $151,000 Prize By Alan Halberstadt If you would like to comment on my article, please post it under my column in the CITY section of BizXmagazine.com
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hen I learned the details of the epic battle Kevin Flood and his wife Anne-Marie Laniak recently waged against the City of Windsor hegemony, the classic 1966 rock song “I Fought The Law,” invaded my mind. I prefer a delicious twist to the couplet, and it goes like this: “I Fought The Law, And The Law Lost.” If you have the fortitude, resources and knowhow of the Floods, you CAN fight City Hall. Unfortunately, precious few citizens have those attributes. On August 26, 2016, the City of Windsor agreed, in a mediation session, to pay $151,000 to the Floods, culminating five years of excruciating red tape and legal wrangling. The Floods filed suit against the city on November 28, 2014, alleging that the actions and inactions of City Hall planning and building department officials, dating back to mid-2011, caused the loss of a lucrative 20-year Ontario Power Authority (OPA) solar microFit contract at 357 Indian Road. The Floods, mavens of west-end student housing, acquired the derelict duplex under power of sale in 2009, with the intention to renovate the building and install money-making solar panels on the roof. Thus began a tortuous odyssey to gain approval from layers of City Hall politicians, swivel servants, legal beagles and subcommittees imitating three-toed sloths. Essentially, the Floods became caught in a fierce political crossfire between the city and the Ambassador Bridge, which had purchased dozens of houses on and around Indian Road with a mind to demolish them and build a truck plaza. The city balked, passing an interim control bylaw in 2007 that was extended, and eventually led to the designation of Sandwich as a Heritage District. The designation finally occurred in 2009, placing stringent requirements on how vacant houses needed to be restored, rather than demolished. When the Bridge appealed the designation to the Supreme Court, implementation was delayed until the appeal was dropped in August of 2012. The heritage designation on ramshackle Indian Road residences is a major stretch in the first place, but since City Council could vote to exempt certain projects, the Floods made a gallant application to extensively renovate a simple duplex, add solar panels, and ultimately wade through a regulatory minefield.
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357 Indian Road, still abandoned and derelict.
A building permit application to change the façade was denied by City Council on September 19, 2011 because the plaintiffs would not agree to the demands of senior planners. Thom Hunt, Director of Planning, demanded imitation cedar shakes, which he suggested could be purchased cheaper in Detroit. From Senior Planner Kevin Alexander came a dictate to raise the porch wall on each side by approximately 2.5 bricks and require two fancy oak doors. Not wanting to lose some $225,000 in OPA solar revenue, the Floods decided to re-apply and give the planners everything they desired. Kevin Flood submitted drawings on June 11, 2012 to the building department after serving notice to city officials that the deadline to start operations on the winding-down OPA program was December 8th of that year. “The application did not move forward,” Flood contended in his statement of claim, noting the drawings sat in the building department for two and a half months. He says Chief Building Official Lee Ann Doyle was on record as saying the timeline to get applications to City Council was four to six weeks. But, Doyle then prematurely demanded interior design drawings, which were exempt under Green Energy bylaws and later Heritage District rules. That took a month. An agonizing year passed before the Heritage Committee, the Planning Advisory Committee and ultimately Council, on June 13, 2013, all approved the exterior drawings. Former Councillor Percy Hatfield asked that night why it had taken a year to process the application and received no good answer. By that time, the solar contract had long since been pulled and the Floods had no intention to move forward with the project. Flood had warned city officials long before that the project was not viable without the solar revenue. It took another year and a half before the B IZ X M A G A Z IN E • M A R C H 2 0 1 7
Floods filed the statement of claim. Toiling night and day, they did virtually all of the legal legwork themselves to make the ensuing law suit affordable. They did all the pleadings to receive binders of emails, many of them internal exchanges between city officials. Lawyer Ray Colautti conducted the examinations for discovery and the case finally went to mediation before Superior Court Justice Richard Gates on August 26, 2016. The closed door mediation ended with the city’s London lawyer and a City Hall risk management official agreeing to settle the case for $151,000 with the city paying all mediation costs. Flood says in excess of $100,000 was compensation for losing the projected solar revenue. The rest was used to pay Colautti and ancillary costs. The action was discontinued, on consent, against defendants Doyle, Hunt, Alexander, Manager of Urban Design Neil Robertson, Senior Heritage Planner John Calhoun and Senior Building Inspector Roberto Vani. “It is difficult to prove bad faith in a civil suit,” says Colautti. “The standard of proof is very high in Section 427 of the Municipal Act.” Flood says he sued the individuals, in addition to the city, because he wanted their testimony in Colautti’s examination for discovery. The city’s statement of defence blamed the Floods for all the delays and obstructions, and failure to submit completed applications in a timely manner. The Floods contended that the Green Energy Act, 2009, had minimized the City’s authority to regulate projects, particularly in the Interim Control By-Law area of Sandwich, yet “city planners devised improper, time consuming demands.” They stalled bringing forward approvals for months, until the heritage designation kicked in. That gave the city the power to review renewable energy projects. It seems Alexander wanted 48 panels on the roof, rather than 53. Of the delays, Flood says: “These are not the Keystone Cops. This was planned brilliantly by them.” Today, 357 Indian Road sits abandoned, soon to be repossessed for back taxes unless the city grants a demolition permit. The Floods, who pay roughly $115,000 a year to the city on more than 30 properties, have on principle not paid taxes on 357 Indian Road for three and a half years. Says Flood: “Hunt is refusing to accept a demolition application unless we are willing to bring forward at our cost a report from a heritage planner and a landscape architect. Don’t hold your breath.” If the city takes his property, and determines the only way to dispose of it is by demolishing the home first, the city can expect more legal action, promises Flood. “All of this over five lousy panels,” he cringes. City of Windsor Chief Administrative Officer Onorio Colucci declined comment on the Flood settlement.
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