Three days after being threatened with a lawsuit, Kingsville council reversed course and approved a second storey for a controversial Main Street East medical centre.
Developer Tay Inc. had threatened legal action against the town and three council members — Deputy Mayor Gord Queen, Laura Lucier and Kimberly DeYong — who voted against a site plan amendment in April that permitted the extra storey. The amendment was defeated because of a tie vote.
The town received notification of the potential lawsuit on May 1 and three days later, at a special meeting, council passed the requested amendment.
“They’ve held us up for four months. We offered to do all this stuff in the beginning,” said Patty Van Minnen, president of Tay Inc. “So our lawyers sent a letter to the town saying, OK, enough is enough. We’re going to sue the town and we’re going to sue the councillors who are insisting they turn this down.”
The lawsuit threat was the latest chapter in an ongoing battle between Van Minnen, her husband Henry Van Minnen and the town.
Part of a development that also includes two six-storey condos at the rear of the property, the medical centre was initially proposed as a one-storey building.
But as interest among potential tenants grew, the Van Minnens said they decided to build an extra storey, which is allowed under the zoning bylaw.
In April 2019, they submitted a site plan to the town for another storey. Two months later they received a building permit for the extra storey and paid the town $28,000 for the permit.
Construction started in June, but in November the couple was contacted by Robert Brown, head of the planning department.
“So, in November we’re down in Florida. The second storey is on, the roof is on, the windows are in. And we get a call from Robert Brown saying we’ve got a bit of problem,” Van Minnen said.
She said he told the Van Minnens that despite the permit approved by the building department, council itself had not voted to allow the second storey.
The town immediately posted a non-compliance order on the site, allowing construction to continue but stipulating that Tay Inc. had to submit a site plan amendment to permit the second storey.
Back from Florida, the Van Minnens talked with town administrators and asked to appear before council to the explain their position. The administrators said no, Van Minnen said.
“You need to let us clear this up,” she said they were told. “We said we should meet with council, they said no, absolutely not. Council is ticked, council is mad. We don’t want to ruffle any more feathers.”
Van Minnen said the town later made demands in two stages. She said the town first asked that the second storey be taken off the medical centre. She said the town was told it would cost $2 million to remove the storey and would be responsible for the cost.
Van Minnen said they were subsequently told the town would approve a site plan amendment but only if the Van Minnens agreed to reduce the height of the condos by one storey, from six to five, and also buy three adjoining residential homes to the east at a fair market price.
They were told the price of the homes would be set at a market value based on the two-storey medical building being only one storey.
“We said, wait a minute here, we’re not touching the condos, we’re not taking off the one storey. That was a deal breaker. We have the approvals. It’s was absolutely off the table,” she said.
Van Minnen said they offered to buy the house immediately to the east at fair market value, but wanted zoning approval to incorporate the residential zoned land into the development. The town refused, she said.
On April 27, a site plan amendment was presented to council to allow the extra storey and square footage. Tay Inc. proposed privacy screening be installed on all second storey windows facing the single-family homes to the east.
Several councillors were not in favour of the compromise. Coun. Laura Lucier called it a Band-Aid solution.
If they had of come up with a picture of this potential two-storey building … I would have wanted to know if there was enough green space, if there was enough parking.
“It seems like an inadequate solution to the problems that are inherent in this project,” she said. “It’s not nearly enough to address the situation. We’re in a very difficult position that makes it very difficult for me to support (the motion).”
Lucier said in a later interview she would liked to have seen drawings of the two-storey building earlier in the process.
“If they had of come up with a picture of this potential two-storey building … I would have wanted to know if there was enough green space, if there was enough parking,” she said. “I would have wanted increased setback from the road. I would have wanted a shade study done, which would have showed the impact on the neighbours.”
On May 4 council, now under legal duress, approved the amendment.
Later that month, Brown appeared before council and said a lack of communication between the building and planning departments was responsible for the mix-up and the issuing of the permit to build two storeys. In an interview Brown said practices have been put in place to ensure the mistake does not happen again. He said all building permits, large and small, must be stamped for approval by him.
Van Minnen said she saw the lack of communication between departments first-hand.
”They’re in the same building. It’s not as if they’re eight miles apart.”
Van Minnen, who has roots in Kingsville, expressed frustration with the time and money the town has spent pursuing its battle with her and her husband.
“Do the taxpayers know if it cost us $45,000 in legal fees you can bet the town paid at least that amount for theirs, with all their special people, their engineers, everybody they pulled in on this,” she said.
Throughout the flap over the second storey, town council was clearly worried about the legal ramifications. Between December 2019 and May of this year, multiple in-camera meeting were held, with a legal adviser present, to discuss the town’s legal position. More in-camera meetings were held after the April 27 meeting.
Van Minnen wonders if her struggles with the town are over. She said Tay Inc. applied for building permits to do interior work and waited 10 business days before receiving approval.
Last month, she said, the company also applied for a yearly $60,000 rent subsidy for the team of doctors looking to locate at the medical centre. She said a decision on the subsidy — which is designed to attract doctors to underserviced areas — was deferred to November. She said the subsidy is key to attracting doctors to the building.
Van Minnen said her husband spoke with Mayor Nelson Santos about the subsidy before breaking ground in 2019 and was told there would be no problems obtaining the rent subsidy.
Van Minnen admitted the pandemic slowed construction, but felt council was responsible for most of the delays. The building was slated to open last April. The opening has now been pushed back to January. The building will house general practitioners, specialists and provide services like blood work, X-rays, ultrasounds, physiotherapy and hearing testing.
Van Minnen said she will not take legal action to recover lost leases.
“When we finalize this thing, our only hope is to meet with council and clear up any unsettled issues they may have, so we can move forward together in an amicable way … to provide this town with the doctors that are so necessary and needed.”
The Van Minnens — under HVM Holdings — have built numerous TSC hardware stores and Goodwill outlets across Ontario.
“We’ve never experienced what we’ve experienced here,” she said.
Van Minnen said the two six-storey condominium buildings will now be rental units.
Santos, echoing Brown’s comments, said the town has put procedures in place to make sure the lack of communication between departments doesn’t happen again.
“Processes have been put in place, we’ve made incremental changes to make sure all the necessary sign-offs are made before a permit is issued,” he said.
He said the town is working with the neighbouring homeowner to make sure they receive full market value for the house.
“We’re basically acting as the broker, the middleman, in supporting the resident, who obviously feels the second storey has impacted the … quality of living … council has agreed to help with the sale of the home,” he said.
The home at 210 Main St. E. is listed for sale at $384,900. If the house is sold for less than appraised value, the town will make up the difference.
“That’s the intention,” Santos said. “Obviously we don’t know what number is at this point.”
A woman who answered the door of the home east of the medical centre said she was not the owner, then closed the door.
Santos said any negotiations on the reimbursement the town would pay the doctors on their lease would be contained in a “service agreement” negotiated between the town and doctors.
