Heritage Lawsuit

If the Bridge Company sues the City of Windsor for bad faith in how the City has treated them and if they are successful in a judgment, I would expect that the damages claim including punitive damages would be gigantic.

I trust that the Company would take pity on the taxpayers at Windsor. After all, we did not appoint Eddie as the Voice of Council. It is not our fault if the Councillors have forgotten what their legal obligations under the Municipal Act are.

If the Company sought cash for their claim, there is no doubt that our taxes could rise dramatically since insurance might not be available if the coverage is for "negligence" only. Perhaps instead they could be convinced instead to take over

• the City’s interest in the Tunnel because the City certainly has no idea how to run or,
  
• perhaps they could take over the 400 Building so that we could finally see the Audit of it or,
  
• perhaps they might seize the East End Arena so that they could get a building that will ultimately cost $ (fill in the blank with your guess) million but which the City would claim is right on budget.

Or, if we are really lucky, they will take all those assets so they will no longer be a burden on taxpayers.

I mention this because of the shocking resignation by former Chair of the Heritage Committee, Greg Heil. I happened to see the story on the online Windsor Star very late on Thursday evening. To put it mildly, I almost fell out of my chair when I read the story.

• “The longtime chairman of the city's heritage committee has resigned, saying the Olde Sandwich Towne heritage study is being used as a weapon in council's fight to stop the Ambassador Bridge from building a twin span.
  
  "I have a grave concern about potential political influences tainting the outcome of this study, which may jeopardize the heritage welfare of Sandwich," Greg Heil said in his resignation letter.
  
  I'm also concerned about the likely vigorous litigious fallout to which I could find myself personally exposed if I participate…
  
  "I feel it was tainted by ulterior motives, tainted by the role of the bridge company."
  
  Heil said the city should be consulting with senior government in its fight with the bridge, "not using heritage as a way to stall off the bridge and create tremendous inconvenience for residents of Sandwich."

What he said frankly is hardly a surprise. The fact that someone in a position of knowledge had the guts, the courage and yes, the honour to do so in this City was.

In case someone may think that Mr. Heil is a friend of the Bridge Company, I can tell you from personal experience that he is not. He and I have exchanged some very interesting e-mails over some of the things I have written. Accordingly, his charge of “political influences” has to be taken extremely seriously.

In passing, the timing of the Report is very interesting as well. Wasn’t last week the weekend of the Olde Sandwich Towne Festival?

• “The 19th Olde Sandwich Towne Festival has a lot to celebrate this year -- not the least of which is winning the latest battle to preserve the historic area from wrecking crews building the next border crossing.”

Why did I start off this BLOG about litigation? Why is Mr. Heil concerned about litigation? Tell me once you have read what I am Blogging below if you see a pattern emerging that the lawyers for the Bridge Company can use in any litigation. I do take some comfort in my perspective after this comment by Councillor Halberstadt on the Interim Control and Demolition Bylaws:

• “There are those who insist that the freeze is in effect for the sole purpose of blocking attempts by the Ambassador Bridge to build a new plaza to provide access to a second span. I would not argue that theory. Certainly, by providing exemptions to Flood and Bushman, more precedents could be set.”

Let’s go right back to the first Schwartz Report. I still remember Sam on stage at the Cleary meeting saying that he was independent and that he had his reputation to protect. To be honest, that gave me a great deal of comfort at the time. However, that was shattered when I read this story in the Windsor Star:

• “Estrin drafted $2.2M plan:
  Windsor Star 08-25-2005
  
  A document obtained by The Star in which Estrin outlined his border "work plan and budget" shows how he originally planned to tackle the province and federal governments' "nine-point plan" -- which focused on making E.C. Row Expressway a border truck route -- and fight off proposals by the Ambassador Bridge and DRTP.
  
  He told council his hiring of a transportation planner and government/media relations expert were vital to help council achieve its objectives.
  
  The transportation expert would come up with a traffic bypass plan, he told them, while the media expert was needed to ensure council's position was well presented locally, provincially and federally, according to the document.
  
  A few weeks later, council approved the plan and retained Estrin for $50,000.
  
  Estrin soon after hired New York traffic expert Sam Schwartz to come up with a bypass plan…”

What conclusion would you draw from that story? Was Mr. Schwartz directed to come up with the result that he did? If so, was this a step taken by the City to block the Ambassador Bridge?

Let’s go forward to October, 2006 and the Council meeting about the Olde Sandwich Towne Community Planning Study. Consider this comment by one of the delegations as shown in the Minutes:

• “…resident, appears before Council as a member of the Olde Sandwich Towne Community Task Force, requesting that consideration of the Olde Sandwich Towne Community Planning Study be deferred, as she personally feels that process was not properly followed in terms of notification and receipt of a draft copy of the Planning Study, and concludes by suggesting that the Study being presented before Council is highly influenced by Administration and not a true product of the Task Force.”

I remember her being "dismissed" by a certain Councillor who should have known better. She also said to end her speech, something that Mr. Heil echoed in his remarks:

• "I know it won't matter what I say and I don't care. This report is not mine it's an administrative report. One thing I learned though: don't get involved. It's not our city anymore. All we are is windowdressing. Everything has been planned for us and if we don't like it, too. bad."

Take a look at my BLOG “Monday, October 16, 2006 “Sandwich Community Planning Study” and you will understand better her complaint:

• “Naturally, if you are involved in the process, you'd like to be able to see the draft and be able to comment on it BEFORE it is presented. Seems only fair. On AUGUST 25, Administration wrote:
  
  "your Chair has asked that we circulate for your comment/input, a draft Sandwich Community Planning Study before we submit it to City Council. In order to meet our deadline to submit items for the October 30, 2006 Council Meeting, you must be prepared to receive & review the draft study, and reply with any comments to us, all by email within the period of October 11-13.
  
  Please be aware that if the volume of comments received by Oct 13 exceeds our staff's ability to amend the draft CPS report by Oct.17, the report will be delayed for submission to the Nov 6 Council Mtg [i.e. the last one before the municipal election]. Also, this time frame means that any comments received from individual Task Force members will not be able to cross referenced by other Task Force members at a meeting, before they are considered for inclusion in the report."
  
  So far so good EXCEPT for one thing....the draft Report was never sent out to all members!"

Of course, Council approved the Planning Study. And guess what came next out of the blue:

• “City blocks bridge plans: Legal battles ahead for city;
  Windsor Star 01-30-2007
  
  City council effectively shut down the Ambassador Bridge's plans for a $20-million plaza expansion by passing a bylaw Monday that forces all construction activity to stop in the city's west end until a community improvement plan is developed.
  
  One councillor described it as "a declaration of open warfare" against the Ambassador Bridge.
  
  "We've been fighting with them and this accelerates it," said Coun. Alan Halberstadt, who voted against the bylaw. Halberstadt says he sees legal battles on the horizon. "We're going to have to have deep pockets."
  
  The controls that were approved -- called an interim control bylaw and a demolition control bylaw -- will be in effect for one year and may be extended to two years while a community improvement plan is completed.
  
  The bylaws will not permit the construction of new buildings or structures or the demolition of old ones, and will ensure that the area's attributes and physical features are not negatively affected or destroyed.
  
  The move was vehemently opposed by the company that owns and operates the Ambassador Bridge. "It's a disguised method of being able to thwart the efforts of the bridge," said Leon Paroian, the company's lawyer…
  
  A community improvement plan for the Olde Sandwich Towne Community Planning Study Area is the tool that is required to revitalize the area and preserve its heritage. It's a process that's been in the works for nearly two years, Coun. Ron Jones said…
  
  Several councillors refused to support the motion because it came out of right field. Councillors Bill Marra, Drew Dilkens and Halberstadt voted against the bylaw.
  
  "I'm a bit offended how it came forward," Halberstadt said.
  
  "I think Mr. Paroian is right, if it walks like a duck and talks like a duck, it's probably a duck."

After the one-year initial term of the Interim Control Bylaw it was extended

• “West-end land freeze stays; Council extends bylaw halting demolitions until January 2009;
  02-26-2008
  
  “The bylaw has been extended for another year until end of January 2009 to impose interim control on uses of land designated within the Olde Sandwich Towne Community Planning Study Area…
  
  The decision was supported by city council despite objections from Paula Lombardi, lawyer for the Ambassador Bridge company, who said the city had no legal or planning basis to extend the bylaw.
  
  "The sole basis is nothing more than bias against the (bridge company)," she said. "What is the reason for such a draconian tool other than its anti-competitive nature."
  
  The boundaries of the study area are not supported by any prior city planning or consistent with any historical boundaries, Lombardi said. "This proposed extension is nothing more than a backhanded way to delay plans of the (bridge company)," she said…”

Let’s take a look at the Heritage matter and it is not free from controversy either. I wrote before in September, 2006:

• “The City's Heritage Planner heard from a number of possible contractors that the City's $50,000 limit on the contract was too low. It looks like none of them bid. The bid from Stantec was at $77,400 which is over the limit although the 2006 work was under the limit at around $40,813. Nevertheless Stantec was recommended by Administration.”

The contract went to Stantec where Sam Schwartz’s former assistant went to work although I do not think that he was involved in the file. Remember the brouhaha that arose in May/June, 2007 when he made some negative comments about how they Mayor handled the border file in the Windsor Star and in Chris Schnurr’s and Councillor Halberstadt’s BLOGs. A commentator on Chris Schnurr’s Blog claimed that he had to

• “face some music Wednesday by Stantec for upsetting the mayor’s office.”

I mention this because of the comment made by Mr. Heil

• “Heil on Thursday said the study was done by an outside consultant with no connection to the heritage committee…”
  
  He said he is fed up with what he perceives to be disrespect shown to the committee by city council and senior administration. He accused the city's CAO John Skorobohacz and councillors of using the committee to carry out political agendas instead of protecting the city's heritage.”

I am in no position to determine what the truth of any of this is. Only someone who has access to City documents and can interview the parties involved would be able to do so. However, what I can see causes me a great deal of concern. Because of Mr. Heil's resignation, I am more suspicious now that reports that are supposed to be independent may well have been tainted for political purposes, namely to stop the Ambassador Bridge Company. If so, the lawsuit will be a very messy one and the consequences to taxpayers considerable.

It is not just BLOGGERS or NAYSAYERS who are pointing out the problems but Councillors, a citizen member of a City committee and now a Chair of a committee directly involved.

I talked about "defining moments" in another BLOG. Here is another one for Councillors. What will they do about it?