Wednesday, January 3, 2007

A new lawsuit for a new year

According to the London Free Press, city council is ushering in a new year with a threat of a lawsuit against London developer Vito Frijia unless he removes concrete barriers on his property that block vehicle access between his shopping centre's parking lot and a smaller parking lot serving a Wendy's and a Bank of Montreal. Frijia has been given until January 15 to comply with the city's order to remove the barriers, after which the city plans to take him to court. Having already dismissed one less threatening order in early December, Frijia's lawyer Alan Patton is bluntly letting it be known that his client has no intention of conceding to the city this time either.

The merits of the city's legal position are contestable, at least so far as can be made out from the Free Press report (minutes from council's December 18 meeting on the subject are predictably still unavailable on the city's website), but its political position is that "the barriers should go because they aren't contemplated in the plan for the site approved by the city." Patton contends, on the other hand, that the site plan requires an agreement on access between Frijia and Jim Hevey, owner of the smaller property — which has obviously not been reached — and adds further:

"There's no authority for a court to order the barriers removed," Patton said. "The city can't require access without a legal agreement signed by the property owners."
If Patton is right, city council is using the threat of legal action to intimidate a property owner into compliance with its own interpretation of its own authority — a beguiling proposition for any politician, as Coun. Susan Eagle attests in her vote to issue a litigious demand:
"It reflects badly on the city that we're not enforcing (our rules)."
Instead of reflecting on the enforcement of legally contentious rules — London taxpayers will have to foot the bill for the legal resolution of the contention either way, even if the city uses its spectacularly unsuccessful in-house counsel for a change — councillors would be remiss not to reflect on the rules themselves. As above, whether Patton is right or not, city politicians are in effect attempting to force an agreement on access on private property owners simply for the sake of protecting and advancing its own authority in these private matters — and damn the costs that they will not have to pay anyway. It is difficult to even imagine an overriding public interest, let alone a demonstrable public obligation, in forcing a settlement over private property use in this case.

The city, for as much as it will bother to suffer any excuse apart from the gratuitous enjoyment of exercising its authority, is apparently allowing its demand as a matter of public safety. Dave Postowoj, owner-operator of the Wendy's franchise that has vehicle access already from both Wonderland and Southdale roads, has an obvious pecuniary interest in as much access to his restaurant as he can get, and flatters the regulatory impulses of council with anecdotal evidence that "motorists who find their path blocked often turn around aggressively, nearly hitting pedestrians and other cars," a rather bizarre claim that means, in other words, that there has been no actual accident to support his contention. But that's enough kindling for the administrative fire, as Controller Gina Barber adds thrillingly that "'[t]he hazard will worsen if there's another snowstorm.'" As the Free Press notes, however, the most likely collision will be "a collision of a legal sort."

In the ordinary course of private disputes such as these, Postowoj's grievances would be served either by exhorting the owner of his lot to reach an agreement with Frijia or, if he were bold enough or persuaded enough by his conviction, by testing their merits in civil litigation. Postowoj has discovered, however, that profit and getting one's way are acquired much more easily from a politics that depends not on merit but on sentiment… starting first and foremost with the self-serving sentiment of politicians that they can and ought to do something about anything, even as the tools of their authority prove to be profoundly unsentimental, and that that kind of politics is found in spades in London. And the Free Press, whose own sentiments so often are in sympathy with and reinforce those of council, cloys the passage of rational discretion further with incongruent and immaterial additions to Postowoj's sentimental/political authority:
The barriers have … consumed time he'd rather use to care for his wife, who is restricted to a wheelchair because of multiple sclerosis.

… "Everyone seems to have sympathy for me, but I don't see any action to take this wall down," Postowoj said.
That's too bad, but having surrendered his options to take action for himself to a media-political circus, taxpayers are more likely to keep their sympathies for themselves if the city goes ahead with its threat.

(Of additional interest, Gina Barber was the only one of three members of council to vote against issuing the deadline for reason that "'I think we ought to (take legal action) now.'" One can only assume that her unseemly haste to embroil taxpayers in a costly lawsuit is a reflexive response to the D-word — developer!)


Carmi said...

I'm thrilled to know that the well-intentioned shepherds of our civic government will invest our hard-earned tax dollars to ensure citizens continue to have unfettered access to artery-clogging food.

God forbid anyone should actually have to WALK to the damn Wendy's to buy a lousy burger. I hope Mr. Postowoj appreciates the city's largesse in fighting this somewhat ridiculous fight on his behalf.

While we're at it, there's a tree in an inconvenient spot beside the parking lot of our local McDonald's. Do you think London can do something about that, too? I understand it's Mac Tonite, and I need my fix.

Anonymous said...

I used to work at that Wendy's location. Postowoj is right that no one park's in the Loblaws parking lot. But I don't have any sympathy for Dave. He's a cheap prick looking for someone else to foot the bill. This guy used to charge 30 cents for a side of mayo. Don't shed a tear for the guy.

Anonymous said...

Can't the City just enforce their site plans and development agreements and end this? Obviously, the 2 opposing developers can't agree, so the City has a responsibility to step in and ensure that the site plan is enforced. It's not Mr. Postowoj's battle, he just pays the price because 2 childish developers are at odds. I think a cement barrier that blocks access in a connecting driveway that was there for several years (5 or so?)is slightly different than a tree at McD's. There is also suppose to be access between Bank of Montreal and the former K.Kreme, now Williams - what's happening with that? By the way, Dave is reformed - I hear a side of mayo is free, as of 3 years ago or so. You can also get an xtra salad dressing, diping sauce with your order for no additional charge. At least that barrier was removed!