A Brief Summary
The ongoing narrative of White Star
A BRIEF SUMMARY - FACTS AND TRUTH MATTER
A Brief Summary
The moment the City of Hamilton put White Star’s active rezoning application on hold for the purpose of pursuing its stadium plan and when it insisted on the decommissioning of White Star’s salvage yard operations, it created a significant private nuisance to White Star which resulted in significant disturbance damages over the next several years.
The White Star Compensation review has been in camera since Sept. 15 2010. Council members take the position that they are not at liberty to discuss and resolve the matter as long as it is in the hands of the Legal Department which has been using its disproportionate City powers to thwart procedural to subdue Marino Rakovac efforts to make the White Star companies whole again as they were before Sept. 15 2005 with a Licensed Salvage Yard operation and only $ 39,000.00 in mortgage debt.
Marino's position is that the City interference with the White Star business operations due the City contemplated Stadium land assembly expropriation efforts of which assembly the White star lands were an integral part of, resulted in disturbance damages to White Star in excess of $ 10 Million.
The Supreme Court of Canada has in the past ruled in favor of the Applicant under the Expropriation Act provision for "disturbance damages resulting from the interference by an authority where no land was taken".
After the 10 year of in camera delay and the City's refusal to engage with the White Star 2017 Application process before the Board of Negotiation process by the OMB the matter is finally before the LPAT Arbitration Board.
The City has been avoiding in arguing the case on its merits instead resorting to a procedural time limitations process in contrast to the available abeyance and tolling evidence.
Currently we are awaiting the LPAT decision as to whether they will agree with the City request to dismiss our application or permit us to continue with the matter before the pre arbitration conference in an attempt to settle our the compensation claim before engaging in the arbitration process.
A dismissal by the Board would then have to proceed to an Appeal process and eventually potentially before the Supreme Court of Canada.
The City position is that our case ought to be dismissed and not heard as the City claims we took to long to bring the matter before the Board.
The City took until 2017 to conditionally approve the White Star Site Plan Application.
The City in 2001 agreed in writing to keep our application in abeyance until the project is complete.
The City position by the Legal Department and the Council members is completely disingenuous.
Council members over the years stated that the City ought to have allowed White Star to run its operations until the stadium location issue was determined, however they state that they are not at liberty to deal with the compensation matter as long as the Legal Department has carriage of the matter.
Currently White Star is on the brink of loosing its lands due the the compounded mortgage debt since 2007.
KEY DOCUMENT LIST TIMELINE
1. Nov. 22, 1989 – Planning and Development Recommendation Report 28 Item 20
(a) (b) (i)and (ii) Appendix “G” re: Approval of the Central Neighbourhood Plan amendment to change the Tiffany Block from “Commercial-Industrial” into “Medium Density Apartments” and the decommissioning of the auto wrecking site – The OPA and Zoning Application ZA-88-98 be held in abeyance pending (i) (ii). TAB A3
2. May 16, 2000 – White Star Rezoning and OPA Application ZAC-00-18 TAB B1
3. August 21, 2000 – A. Powell letter re: confirmation of the City reconciliation of conflicting directions imposed by the waterfront plan and the neighbourhood plan and the confirmation that the White Star application will be held in abeyance until the reconciliation is completed TAB B5
4. Jan. 26, 2001 - letter from Mr. Paparella to Mr. Powell, where Mr. Paparella wrote that “As per your request, we (the City) will continue to hold Application ZAC-00-18 in abeyance until the project is complete.” TAB B9
5. White Star’s decision to proceed with its residential development plans and decommission its auto salvage yard where based on receiving equivalent value for its yard ($5 million) through $1.5 million in remediation monies (plus additional program monies) and 100% development credits of about $4 million.
6. Sept. 14, 2005 - Appendix A of City Report 05-012 outlining the residential development agreement with the City for 4 White Star properties including
specific environmental protection monies for the Tiffany project TAB C10
7. Feb. 15, 2006 – email received from Larry Friday stating that the development agreement would be in jeopardy should the dealership continue to run TAB C13
8. April 27, 2009 – Response to Notice of Motion including Affidavit of Brenda Khees re: application for status at the OMB hearings by White Star – City requests further delay, acknowledges the need for continued dialogue to encourage settlements, acknowledges the need for continued dialogue to encourage settlements and narrow down issues and acknowledges that the City has not advanced White Star’s residential development application and that the process of approval for White Star’s application would require many further and apparently lengthy approvals TAB D19
9. Feb. 24, 2010 – Council approves Report 10-008 Recommendations and the West Harbour is approved as the new stadium site and staff and Council are authorized to proceed to enter into Options to Purchase agreements for the required lands or proceed to take the necessary formal expropriation steps. TAB
10. June 8, 2010 – City Notice to White Star companies that City is ending acquisition discussions TAB G8
11. August 31, 2010 – City Report and Notice re: Tiger Cats organization indicates
that they will not discuss West Harbour Stadium TAB G10
12. Sept. 15, 2010 – City Council (presumably in its capacity as expropriating
authority) directs staff to Review Compensation for White Star with respect
to Setting Sail and stadium efforts
13. Oct. 12, 2010 – Report LS10017 Staff Report to Council held in camera and
White Star never advised as to compensation resolution
14. Oct. 5, 2012 – Out of frustration with the lack of compensation progress White Star’s solicitor initiates a Notice of Action against the City – White Star subsequently in 2019 was advised that the matters were not in the correct jurisdiction and should properly be heard before the Tribunal and not be before the Ontario Superior Court of Justice – the matter was referred to the Tribunal on Jan. 31, 2020 TAB M6
5. Dec. 27, 2012 – White Star Site Specific Zoning Draft Document for the OMB
mediation process approved TAB L4
16. March 17, 2012 – OMB Settlement Order issued TAB M2
17. August 2014 – City completed Barton Tiffany Urban Design Study using White Star’s building massing design as a template – this Study needed to be completed before White Star could proceed further as the Site-Specific Zoning was conditional on the completion of the Urban Design Study TAB N7
18. June 11, 2015 – Email letter from Larry Friday, City Director of Taxation to Ron Sabo, City Solicitor denying the existence of the development agreement and the existence of Report 05-012 TAB Q1
19. June 12, 2015 – City of Hamilton Planning Department confirms that they
received the Erase Application for soil remediation funds together with a cheque for the application fee. They declined to process the application due to ongoing litigation and returned the cheque TAB Q1.
20. May 3, 2016 C. Robertshaw, City Solicitor denies the existence of the development agreement, denies all the planning work done by White Star and denies the existence of the White Star planning application etc. TAB Q2
21. May 9, 2016 – Marino Rakovac locates Report 05-012 containing the outline of the White Star development agreement in the City archives with the help of Catharine Walker at the City Clerk’s office TAB Q3
22. May 13, 2016 – Powell letter to C. Robertshaw responding to her May 3, 2016
letter – correcting her and providing her the Report 05-012 and its contents TAB Q5
23. June 23, 2016 – A. Powell letter to C. Robertshaw -summary to assist with the
familiarity with the file – 11 City lawyers have dealt with the file and familiarity
with the facts is an issue – no one is there long enough to learn or understand
the file TAB Q7
24. July 5, 2016 – Examinations for Discovery of Larry Friday – Admission of the Development Agreement contained in Report 05-012
25. July 20, 2016 – A. Powell letter to City – re: Larry Friday’s admission of the “deal all along” and a request for a compensation resolution TAB Q9
26. April 4, 2017 Application to the Board of Negotiation Notice to the City and the Board TAB T1
27. Jull24, 2017 – Joanna Wice, City solicitor, confirms that the City does not agree to the scheduling of a hearing on this matter TAB T8
28.Nov. 20, 2017 – City Planning Department Notice of the conditional approval of the applied for Site Plan – environmental remediation remains the outstanding condition TAB S1
29. 2017 Second application for Erase program funding
30.Feb. 9, 2018 – Grant Brailsford, City solicitor, letter re: Erase program application not to be rejected and that a request be made to Council to hold the matter in abeyance until Council can consider the matter TAB Q 10
31. May 22, 2018 – Justice Lococo’s Order ordering the parties to provide a better Affidavit of Documents resulting from White Star complaining about the City not providing full and complete disclosure and grossly inadequate documentation TAB Q 14
32. July 4, 2018 – Ron Folkes letter to G. Brailsford re: detailed request for
documents that White Star was looking for – went unaddressed TAB Q 15
33. Feb. 19, 2019 – Civil case is administratively dismissed due to White Star’s
solicitor’s failure to update his new address with the Court TAB Q 17
34. Aug. 14, 2019 – G. Brailsford letter to Ron Folkes refusing to provide further
Setting Sail documents and Tiger Cat negotiation documents TAB Q 20
35. December 2019 - List of important documents uncovered by Marino Rakovac at the City Clerk’s office and other sources over the preceding months, all of which were not disclosed by the City in their sworn Affidavits of Documents TAB Q 21
36. Jan. 22, 2020 – Refusal to provide Staff compensation report LS10017 by the
City in response to a Freedom of Information Request – the City hides everything in camera TAB Q 23
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