Bay Beach Condo Opponents Vow Not To Let Court Ruling Bury Them

By Marcia Carlyn

(Marcia Carlyn is one of many residents in Fort Erie, Ontario who have been fighting a now approved plan to build a condo in front of a publicly owned beach in the Crystal Beach area of the municipality. Opponents of the condo recently lost a court bid to overturn a January 2011 Ontario Municipal Board decision in favour of the 12-storey condo. 

The condo plan received the support of Fort Erie’s mayor, Doug Martin, and a majority on the town’s council more than two years ago, and also has its share of support from citizens in the community who believe it could help stimulate some economic growth in a Crystal Beach they say has been stagnant since the old amusement park by the same name closed two decades ago. The mayor, who hopes the May 2 Ontario Superior Court ruling will finally bring an end to the long battle over the condo, has argued from the beginning that he believes the development will help save the town-owned Bay Beach for the public rather than restrict access to it.

Niagara At Large is posting the following reaction to the court ruling from Marcia Carlyn.) 

Dear friends of Bay Beach … Very disappointing news.

A file photo of Bay Beach along the shores of Lake Erie on a hot summer day.

Yesterday the Ontario Superior Court of Justice rendered its decision on our Statement of Claim case which was heard on Feb 8th.  The Court dismissed the lawsuit filed by a group of Fort Erie taxpayers, giving the Town the go-ahead to proceed with its plan to transfer a large portion of the Bay Beach Lands to the Molinaro Group for the construction of a 12-storey condo tower. 

The decision is especially disappointing because we know we had a strong case showing why the Town’s contract with Molinaro is illegal.  John Keenan, the Ontario barrister and solicitor who represented the plaintiffs, presented excellent written and oral arguments.  It could not have been done better.

We respect the decision of Justice Hainey, however, we were surprised that his decision did not address our legal arguments in any depth.  For example, the judge concluded with little explanation that there was “no obvious or undue advantage being conferred upon the Molinaro Group by the Town”.  No obvious advantage?  The developer will be getting $2.7 million of prime waterfront land without having to pay a cent for it!  When the deed is transferred to Molinaro, the Town will receive nothing in exchange for the Bay Beach property .  And there is no guarantee we’ll get any of the so-called “community benefits” (most of which are actually “condo benefits” because they are required components of his condo project).  I’ll be glad to send you a copy of the 11-page decision if you’d like to review it yourself.

A computerized rendering of the condominium as it would look on Bay Beach in Fort Erie, Ontario..

Are the courts protecting the public interest?  Unfortunately, it appears from recent cases that the courts are moving toward granting almost total deference to the decisions of municipalities, even when those decisions do not seem to be in accordance with the law.  Although there is case law going back to the 1850s in Ontario showing there is a process for taxpayers to obtain justice under the law, recent court decisions seem to make it nearly impossible for the public to get a fair hearing on the legal merits of a case.  This raises a fear that the judicial system (the chief protector of our legal rights) is being eroded … just as Bay Beach will certainly be eroded when the condo tower is built.

Despite this news, our quest to save Bay Beach is not over!  Another group of taxpayers who feel strongly about this issue have filed formal objections to the Town’s application for Absolute Title of the Bay Beach Lands.  The Town filed this application because Molinaro needs Absolute Title in order to construct his condo.  The taxpayers have a strong case because they have long-standing rights to access a Private Road that runs next to the seawall on the Town’s Bay Beach Lands.  Additional objections were also filed based on the newly discovered municipal road allowance that runs from Erie Road to the water’s edge (which has never been closed).  Both the artificial toad habitat and part of Molinaro’s “underground” parking garage will be built on the Private Road and the municipal road allowance, which would violate the rights of these taxpayers as well as the general public.  The Director of Titles has the authority to grant Absolute Title but a hearing must first be scheduled to hear the objections and the Town’s responses.  I’ll let you know when we hear more.

We’re giving careful consideration to all our options, including filing an appeal.  Right now, we need to help the six plaintiffs who were very courageous in taking on the “powers-that-be”.  Please contribute to our legal fund at the secure website www.fewpa.org.  We’re all in this together.

Thanks so much for your support throughout this long struggle … we’re not throwing in the towel!. 

Marcia Carlyn is a resident of Fort Erie, Ontario.(Niagara At Large invites our readers to share their views on this post below. Please remember that we only post comments by people who are also willing to share their real first and last names. We also reserve the right not to post comments considered to be uncivil or that resort to over-the-top personal attacks against individuals.)