Tribunal dismisses Hamilton west harbour landowner’s $33M claim against city

The city has fended off a nearly $33-million claim by the owner of a polluted property in Hamilton's west harbour area once pitched for residential development but mired in litigation.

But where that leaves the plan for an eight-storey, 164-unit complex at 271 Bay St. N. - the site of former White Star Auto Wreckers yard near the GO station - remains unclear.

Many area residents frustrated with delays at the fenced-off site supported what White Star Group had promoted for its Tiffany Square in 2015, Coun. Jason Farr says.

I think there's the potential and that vision from a few years ago, people got excited about it," Farr said Tuesday. I'd like to see that happen."

In an April 14 written decision, the provincial Local Planning Appeal Tribunal (LPAT) sided with the city in dismissing White Star Group's $32,893,970 claim under the Expropriations Act.

But in an email to The Spectator on Tuesday, Marino Rakovac, CEO of White Star Group, said he plans to appeal the LPAT ruling. He argues its findings weren't based on the merits' through a full hearing," saying certain witnesses and documents weren't allowed to be part of the process.

In the end, White Star was cheated out of having its voice heard despite the fact that the Expropriations Act was passed to protect property owners from unconscionable behaviour by the government."

The dispute has roots in the city's abandoned plans to build a football stadium in the west harbour's Barton-Tiffany neighbourhood for the 2015 Pan Am Games.

The city purchased more than 60 properties in the area through negotiation" but not expropriation, the LPAT decision notes. In 2011, council decided to instead build a stadium at the former Ivor Wynne site in the east end.

But in its 2020 LPAT appeal, White Star alleged damages for contemplated expropriations or constructive expropriation' or temporary expropriation,' or expropriation of their development rights," the tribunal ruling notes.

The property owner also argued the city's exercise of dual roles as both the planning authority and the expropriating authority put it in a conflict." That put the development proposal on hold for 10 years to facilitate the city's conflicting stadium option ... without compensation for delay."

But the city contended the Expropriations Act does not provide for the award of damages for contemplated expropriation," the LPAT ruling reads. And no construction ever took place near the White Star Group property - which also includes 107 Stuart St. and 34-36 Tiffany St.

But in his email, Rakovac, whose group bought the property in 1997 and eventually achieved site plan approval for the condo project, contended: A city can certainly cause damages by interfering and delaying development opportunities prior to its decision to issue a notice of expropriation."

The plan for Tiffany Square also met opposition from CN Rail at the provincial land-use dispute tribunal over concerns future condo residents would complain about noise from its nearby shunting yard.

The Ontario Municipal Board, the LPAT's predecessor, favoured a modified development in 2012, but Rakovac then filed a $5-million lawsuit against the city alleging damages due to a flawed planning process."

That lawsuit was dismissed by the court in 2019, legal staff previously noted.

In January 2020, a fire ripped through the scrapyard office after the property was put on the market under power of sale by mortgage holders the previous fall.

In an email at the time, Rakovac said there had been problems with squatting" on the property during warmer months and continuous" break-ins in winter.

On Tuesday, he said White Star Group still owns and controls the Tiffany Square properties" despite the power of sale. And we are in the process before the courts of settling matters to redeem the mortgages on those properties."

Farr, meanwhile, told Tuesday's planning committee he hoped the LPAT decision marked the dispute's final chapter" and signalled good stuff" ahead.

Teviah Moro is a Hamilton-based reporter at The Spectator. Reach him via email: tmoro@thespec.com