Scott Radley: Beach volleyball courts at Confederation Park turned into parking lot in legal dispute

Now that summerlike conditions have arrived with the sun blazing and temperatures spiking, local beach volleyball courts should be packed with sunscreened folks getting a workout.

But that won't be happening down at Confederation Park. At least, not on the spot where the city bulldozed 12 well-used courts earlier this spring.

Why did it do that?

The situation stems from a lease dispute that goes back to the early days of COVID that's now the subject of an $8.65-million lawsuit against the city and the Hamilton Conservation Authority.

Mark Zik and Mike Leonard are the owners of Sandlot Sports. They say they invested $400,000 - including $200,000 worth of specialty sand - in 2012 to turn a parking lot into a privately run sports destination that was eventually used by hundreds of teams and 10,000 people a year.

We were the second-biggest beach volleyball program outside of Toronto," Zik says.

Then the pandemic hit.

The two sides disagree about what happened next. According to the city's statement of defence, Sandbox failed to pay its rent, taxes and hydro starting at the beginning of 2020, which was a couple months prior to COVID arriving.

In fact, Sandbox Sports made no payments of rent, taxes or utilities from January 1, 2020 until March 15, 2021," it states. Following non-payment of rents, taxes and utilities for over a year, on February 26, 2021, the city gave notice it would terminate the lease."

Meanwhile, the owners say an agreement was in place with the conservation authority (which runs the park) to pay their annual rent in two instalments instead of monthly. This allowed them to make the payments at the times registrations were ongoing for their spring and summer seasons when they had cash flow.

When the pandemic hit, they were shut down like so many other businesses. With no revenues coming in, they acknowledge they fell behind. In March 2021 they say they paid what they owed for the previous year. That's when they say the city demanded the full amount for 2021 as well, despite them still having no ability to operate and generate income.

Three days later, they put locks on our doors," Leonard says.

Their lawyer, Richard Startek, says a five-year lease extension was requested - during which Zik says they'd catch up and make good on what they'd owe in more instalments - but they were denied.

The two court documents paint differing pictures of what was offered or not. The owners say no rent relief or forgiveness was granted despite not being allowed to operate. The city says the owners were offered a rent deferral but didn't accept and wanted an abatement or renegotiation.

Some time after, Zik and Leonard say the city severed the relationship.

Then early this year the next step was taken.

In March they went in with their bulldozers and ripped it all away," Zik says.

With the city claiming in its defence that $24,980.57 in rent is owed (it's countersuing for that amount) everything was removed and the entire place was returned basically to the state it had been when they arrived a decade ago.

Zik and Leonard now say they don't have a business or even the expensive sand they purchased. They say they didn't remove the sand themselves because they had nowhere to put it. Plus, the middle of winter is hardly an ideal time to find a buyer for it.

So what happened to it?

With the lease expired, the municipality says it became the owner.

The city worked with Sandbox to have the sand removed in a timely manner as required by the lease, however, those efforts failed," senior city real estate consultant David McCullagh said in a statement to The Spectator. The city moved forward and removed the sand, as it became the city's property under the lease. The city intends to use the sand for other purposes and by other facilities across the city."

But why flatten the whole place instead of letting Sandbox sell - its lawsuit says negotiations had been held with someone potentially interested in buying - or even having the city operate it or find a group that could? After all, the city's master plan for recreation indicates a desire for more courts than the two public ones remaining.

As a pilot project, the city should consider the installation of one smaller court complex with three courts to accommodate localized play, tournaments, and programming," the master plan says.

According to McCullagh, it had another use in mind for this property.

The city continued communications in good faith with the former tenant to remove the courts as required under the lease," he said in an email. Those efforts were unsuccessful, and the city moved forward in returning the premises to its pre-leased use as a parking lot. This is due to a significant increase in users of the park since 2020. The city's masterplan for (the park) includes other uses for the area, and required the land to be unoccupied to move forward."

Scott Radley is a Hamilton-based columnist at The Spectator. Reach him via email: sradley@thespec.com