Special Report: Pearl Company

Fletcher: No Alternative to Rezoning for Pearl Company

Al Fletcher explains the City's position on the Pearl Company's zoning predicament.

By Ryan McGreal
Published September 24, 2010

Al Fletcher, strategic projects manager in the City's Planning and Economic Development department, responded today to an email request from RTH to explain how the City of Hamilton is supposed to attract the kind of urban reinvestment that we need to revitalize our older neighbourhoods if we continue to subject entrepreneurs to prohibitive fees and charges when they try to invest in abandoned buildings.

Referring specifically to the Pearl Company and its owners Barbara Milne and Gary Santucci, Mr. Fletcher's wrote, "The City's position has been that a rezoning application is required to recognize the use" of the Pearl Company as an art centre and theatre. The former industrial building is zoned residential, though it has never had a residential use.

Mr. Santucci argues that an art centre and theatre should qualify as a legal, non-conforming use. But according to Mr. Fletcher, "it is the position of the City that the legal non-conforming status, once non-industrial uses occupied the space, was lost."

The Official Plan that Council approved last year would permit the present use of the Pearl Company. However, the Plan still awaits approval from the Ministry of Municipal Affairs and Housing (MMAH). After that, any appeals through the Ontario Municipal Board must be heard and decided. The entire process could take years. According to Fletcher, "The timing of Official Plan approval coming into effect is unknown at this time."

In the meantime, staff have drafted zoning that would also permit the Pearl's use, but Council is not allowed to approve the draft until after the Official Plan has been approved.

Fletcher says that he and Tim McCabe, the General Manager of Planning and Economic Development, both support the use of the Pearl Company, but that while the Official Plan is still pending, their support "can only be formalized through the submission of a rezoning application."

He notes it would be illegal "bonusing" to "provide special treatment for one business over another" by making an exception for the Pearl Company.

If the Pearl Company decides to go the route of applying for a rezoning permit, a number of exorbitant fees and charges come into effect. Gary Santucci provided the following list of charges:

Rezoning Fees and Charges
Item Cost
Site Specific Zoning Application Fees $11,700
Sign on the Property Notice to Public $900
Change of Use/Zoning verification fee $185
1% for any work valued above $18,500 unknown
Architectural drawings or engineering study to prove Building Code conformity $10,000+
Development Charges $38,614
Site plan application $10,000
Revisit encroachment agreement unknown
Cash-in-lieu-of-parkland $60,000
Revised parking requirement for 25 on-site spaces $90,000
Total $211,399+

Fletcher points out that the City offered to defer the fee payments until final approval of the rezoning.

He notes that Santucci and Milne: "did not submit a rezoning application nor did he submit a Committee of Adjustment application regarding changing a legal non-conforming use." He notes further that they did not apply for a building permit for the work they have done on the property.

He also contrasts other businesses, like the Westdale Theatre, whose owners decided to go the route of applying for a rezoning.

Fletcher's letter concludes:

The City is committed to supporting the Arts community. We have developed a forward thinking Official Plan which not only supports the Arts but provides policy direction related to adaptive re-use of our buildings. We are proposing new zoning that will remove obstacles related to defining 'arts' uses and create a wider area within which these uses can be located.

Unfortunately, the "forward thinking Official Plan" won't arrive in time to legalize the Pearl Company's activities. They appear to be trapped in a bureaucratic Catch-22: They can't afford to pay the prohibitive fees and charges that the current rules insist they must pay to run a theatre in an industrial building with residential zoning.

Meanwhile, the City has written a new Official Plan that would eliminate the zoning issue dogging them today, but the Official Plan is held up indefinitely and staff aren't allowed to go ahead with a rezoning to resolve this issue until the Plan is finalized. Nor can staff make a special exception for the Pearl Company, as this would constitute illegal "bonusing".

The only regulatory way out is for the Pearl Company to file a rezoning application, at which point the unaffordable $200,000+ fee schedule kicks in.

RTH also made multiple attempts this week to contact Bernie Morelli, the Ward 3 Councillor whose jurisdiction includes the Pearl Company, to ask what he is doing to support Milne and Santucci. As at this writing, Mr. Morelli has not responded.

However, a number of other candidates for Ward 3 have weighed in on the issue.

Ryan McGreal, the editor of Raise the Hammer, lives in Hamilton with his family and works as a programmer, writer and consultant. Ryan volunteers with Hamilton Light Rail, a citizen group dedicated to bringing light rail transit to Hamilton. Ryan writes a city affairs column in Hamilton Magazine, and several of his articles have been published in the Hamilton Spectator. He also maintains a personal website and has been known to post passing thoughts on Twitter @RyanMcGreal. Recently, he took the plunge and finally joined Facebook.

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By Bizarro (anonymous) | Posted September 24, 2010 at 21:55:48

WOW, this is just bizarre!!!

How, how, how, how, how, how....did an exception to zoning get issued for the Studebaker property for FREE when the proposer (Northbrook) didn't even have an offer on the property???? http://www.thespec.com/news/local/article/18178--city-gives-studebaker-project-a-pass

From; http://www.thespec.com/news/local/article/18418--studebaker-sports-hub-tests-zoning-proposal "Graham, who hasn't yet made an offer on the former Studebaker building, said he won't move forward unless council allows him an exemption from the new zoning bylaw."

An exception to a Ward 3 zoning issue with zero skin in the game. And The Pearl has how many hundreds of thousands spent and a track record. Where is this Sports Hub now? Not even a whisper since 2 days in The Spec back in April.

Oh yeah and Lloyd Ferguson got a gymnastic club in Ancaster an exception as well. I'd like to know what is cost the gymnastic club for amendment. RTH can you please ask and publish the truth, because my faith in ever learning the truth is dimishing by the minute, no sorry second.

Good magicians use distraction, bravo Lloyd 'Houdini' Ferguson, bravo.

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By isthetruthouttheremulder? (anonymous) | Posted September 24, 2010 at 22:35:11

This just keeps getting more, and more intriguing. I will note Al Fletch said defer, not waive, fee payments.

As Bizarro asked how much did the Ancaster gym club pay for their amendment? For that matter how much has (did) the Studebaker group pay for their exception. And where is the project today, Ancaster or Studebaker?

How dirty is the process Morelli insists must be followed? Well it appears to be followed by some, but not all (or others, I'm not sure which). It appears to be a system designed to keep our vacant and fully service factories idle. Can the powers that be not see this, or realize it exists? Or, is the fix just so in, and it's a standard course of business.

Personally, I think this Pearl Company issue is just the tip of the iceberg and many are worried about how this will progress, especially leading to an election. Why do I get the feeling the dirt is just starting to be turmed?

RTH, thanks for taking the lead. You are so needed.

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By mikeonthemountain (registered) | Posted September 25, 2010 at 00:00:59

"it is the position of the City that the legal non-conforming status, once non-industrial uses occupied the space, was lost."

Non conforming use was fine in this instance, up until non conforming use was something non polluting and for people?

If they run a diesel generator on the front lawn belching black smoke onto the houses nearby would that make it conforming again?

After all, it is imperative that the property comply with its residential zoning.

Unmitigated lunacy. Unless the rules are skewed to favor big box deep pocket investment. Then it all makes sense.

Comment edited by mikeonthemountain on 2010-09-24 23:15:19

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By Cal DiFalco (registered) - website | Posted September 25, 2010 at 04:28:13

This is an example where process is paralyzing progress. Any city or organization that is truly committed to transformational change, to the magnitude of being the best place to raise a child, must necessarily have the wherewithal to recognize regressive policies and processes, confront them and change them to remove this strangulation effect.

Until we recognize the urgency and need to do so, we will continue to see the Santucci and Milnes of the world, bewildered by the disconnect between what we say as a city, and what we do, or are prepared to do.

It's the same reason why we still have transport trucks invading our residential neighbourhoods. It's the same reason why we are deprived of leveraging the wealth of features that our city has.

Entangling ourselves in regressive policies and somehow trying to justify them in the shining light of their counter productive impact, is akin to drinking the kool-aid on the path to failure.

I hope the city shakes itself out of this slumber and does the right thing.

Cal DiFalco

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By TnT (registered) | Posted September 25, 2010 at 08:38:30

What the living he'll is wrong with this place? How much drugs, pornography and stolen goods fenced did these people do to? Oh, what? NOTHING! They are being asked to pay more in fees then a thief would pay for stealing a car. I see it's nothing more than punitive actions of a power hungry beauracracy gone wild. The whole process should cost maybe between 1000 to 5000 at most. The trifecta of fees that is crazy: artcitect, parking, development. Can the city be made to list and justify these fees just like a contractor?

I decided to explore the process myself for a rental property I own: I made a phone call asking about splitting up a hydro meter into two seperate units (seperate for over 25years). The result was the need to spend over 100,000 to do this. Almost exact same procedure as Pearl.

Is anybody out there?

Comment edited by TnT on 2010-09-25 07:41:31

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By Gary Santucci (anonymous) | Posted September 25, 2010 at 09:46:28

"did not submit a rezoning application nor did he submit a Committee of Adjustment application regarding changing a legal non-conforming use."

One only needs to review the punitive fee schedule to understand why we have not submitted a rezoning application. Regarding the application for a variance to the Committee of Adjustment, what Al Fletcher does not tell you, is that The Planning Department is on record as stating that they will not support a decision that is favourable to the Pearl Company and would appeal the decision. This would force the entire issue back to The Economic Planning and Development Committee where there is no political will to reject the appeal as Councillor Morelli has never come to the table, preferring to rely on a broken, punishing process that is hostile to small business development in this City. Both Morelli and the Process are out of touch with today's reality.

Al Fletcher also mentions the Westside Theatre as having gone through the process, what he doesn't tell you is that now after spending tens of thousands of dollars on the rezoning the facility is now up for sale.

The combination of onerous fees, acquisition costs and necessary upgrades make these buildings impossible economic propositions. Perhaps they should become all City owned and operated by bureaucrats where there is an unlimited amount of public tax dollars available to operate them.

Gary Santucci

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By Serendipity (registered) | Posted September 25, 2010 at 10:24:36

The City knows how to be creative, and forgiving, regarding zoning and fees however they are very selective. Tim Hortons at Bay and Cannon is a case in point.

The City has laws to protect the downtown zone; specifically NO drive-thrus. Tim's wanted a drive-thru at the aforementioned corner but Cannon Street was/is included in the downtown zone so Tim Horton's was a no-go.

But, then the miracle happened. The City folks put their heads together and came up with a most creative zoning solution, a first I believe, and divided Cannon Street right down the middle of the road so the south side was in the downtown zone and the north side wasn't. Since Tim's drive-thru was to be on the north side of Cannon, now part of the residential zone due to the Cannon street split, it turned out that the zoning was okey-dokey.

As of today, Cannon Street, both south and north, is again part of the downtown zone and no drive-thrus are allowed.

If the City can come up with a let's bend-the-rules solution for a Tim's franchise at Bay and Cannon, surely they can work hand-in-hand with Hamilton's beloved Pearl and do the same.

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By Desmond (anonymous) | Posted September 25, 2010 at 12:21:25

While I sympathize with the Pearl Company, fees are fees. The contributors to this site constantly rail that private interests should pay their own way. I don't see how this is different.

If the fees are lowered in this case, they have to be for all others as well.

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By Gary Santucci (anonymous) | Posted September 25, 2010 at 12:47:53


"If the fees are lowered in this case, they have to be for all others as well."

This is exactly what should and must happen. In a meeting with the current City Manager Chris Murray, with whom we met here at the Pearl Company, Mr Murray shared a disturbing fact with us; The City of Hamilton's Tax Base now consists of 83% residential and 17% commercial. He explained that this was a precarious and unsustainable situation that had to be reversed and held out great hope that the Pan Am Games were going to be a "game changer for the City of Hamilton". Well does anyone still have hope on that one. The reversal will only come when we understand that there has to be a baseline regulatory environment that will allow small business to survive and grow in our core and that we have the policies in place to attract start-up businesses.

Gary Santucci

Gary Santucci

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By bigguy1231 (registered) | Posted September 25, 2010 at 13:20:10

If your not willing to play by the rules and pay the fees required then you shouldn't blame the city for not being willing to work with you. The same rules should apply to everyone no matter where you are located within the city.

I am not commenting on the site it's location or it's use because I don't really care. But I do and will care if the rules are changed or bent to satisfy the needs of one property owner. It wouldn't be fair to all the other people in this city who don't get special consideration and must go through the process to get their projects approved.

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By Mahesh_P_Butani (registered) - website | Posted September 25, 2010 at 13:59:33

Re-envisioning the Pearl

This Art thing is not working out for the city. Whoever came up with the idea that it is about you and your dreams, was wrong! It has always been about them, their processes and their ways. They own the book on this. You don't.

So don't sweat it. It is time to stop being creative. It is time to conform. The assumptions that artists make are false. There are no variances from the code. It is written in the code book itself.

Ever wonder why the occasional digression is called a minor-variance? It is just that, an insignificant change from the larger plan.

Art is not good for society. It instigates people to think, and even feel. It is not good for the process as it makes people believe in themselves again. Art should not be encouraged in a society that is trying to remain focused on becoming the best place to raise children. What kind of children do you think would grow up in a place that fosters thinking and believing?

It is time to stop fighting conformity. It is futile. Instead let us focus on the one thing that fits well into the plan. Religion.

The Code allows for this. The Book encourages it. It does not challenge those who promote religion for good reasons. Wars have been fought over this. They are profitable. When was the last time a war was fought over Art?

So, from today, let us endeavour to turn our "Pearl" into a place of worship. The best place to worship in Ontario.

Let us remove all art, installations and poetry from the Pearl, and instead build altars to the Gods.

There will be no conflict in this minor-variance. It is a perfect fit with the big plan. And they will even pay for this minor variance.

Some of the altars to be built in this new venture will be to:

Athene: goddess of Wisdom and Justice; Asclepius: The god of medicine and healing; Athena: The goddess of wisdom, war, the arts, industry, justice and skill; Erinyes: The avengers of wrong.

There will be no special event permiting required here, for the major altars will be dedicated to:

Dionysus: The Greek god of wine; Hades: The god of the underworld; Persephone: The goddess of the underworld; Melpomene: The Muse of tragedy.

There is just one minor-undertaking to be given here. There will be no altars built here for:

Muses: The goddesses of music, poetry, the arts, and science; Thalia: The Muse of comedy and light poetry; Erato: The Muse of lyric poetry.

The Code has a way of bringing everything into compliance, while keeping the forces of the higher order of inquiry away from the place of worship.

The Book points us to:

The Neighbourhood Institutional (I1) zone [which] allows uses that you would see in your neighbourhood. These local uses have little impact on the surrounding residents and are used by those living near by. Some of the uses that would be allowed in the Neighbourhood Institutional zone are:

Elementary Schools, ..Places of Worship.. Residential Dwellings, Retirement Homes, Residential Care Facility.

8.1 NEIGHBOURHOOD INSTITUTIONAL (I1) ZONE: No person shall erect, or use any building in whole or in part, or use any land in whole or in part, within a Neighbourhood Institutional I1 Zone for any purpose other than one or more of the following uses, or uses accessory thereto. Such erection or use shall also comply with the prescribed regulations:

8.1.1 --- PERMITTED USES: Day Nursery, Duplex Dwelling, Educational Establishment, Emergency Shelter, Home Business, Museum, ..Place of Worship.., Residential Care Facility, Retirement Home, Semi-Detached Dwelling, Single Detached Dwelling, Educational Establishment.

8.1.2 --- PROHIBITED USES: consisting of a Secondary School, College or University.

There will be no code compliance issues from now on. For, it is about God. It is about Code itself.

Art has hurt the bigger plan, so let us turn to religion instead, and re-submit.

-Mahesh P. Butani

Comment edited by Mahesh_P_Butani on 2010-09-25 13:12:43

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By Gary Santucci (anonymous) | Posted September 25, 2010 at 15:08:30

Mahesh

We have been looking for an exit strategy. I can offer you a glass of wine and a poem as payment for your eloquent and insightful plan.

Gary Santucci

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By Mahesh_P_Butani (registered) - website | Posted September 25, 2010 at 15:34:42

Thanks Gary! I guess I will take you up on that offer :-) We cannot allow such circumstances to beat us down. There is a simply was out of this which will enable you to continue the good work at Pearl - without the traumas associated with it. This city needs more Pearls, and it will get it, in spite of all the codes. See you very soon! Hang in there. Best, Mahesh

Comment edited by Mahesh_P_Butani on 2010-09-25 14:35:23

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By z jones (registered) | Posted September 25, 2010 at 16:17:42

The same rules should apply to everyone no matter where you are located within the city.

Yes, exactly. And they should be rules that aren't stupid.

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By Undustrial (registered) - website | Posted September 25, 2010 at 20:04:38

While I sympathize with the Pearl Company, fees are fees. The contributors to this site constantly rail that private interests should pay their own way. I don't see how this is different.

I support an increase in development fees for new suburban home construction because the costs of extending city services (police, water, power, etc) often costs tens of thousands more than the "development fees" specifically meant to pay for it.

I don't support punative $200 000+ charges to people who want to do something with an existing and unused structure. This is an affront to everyone in the lower city who might consider trying something interesting with one of these buildings. It creates a barrier to entering the market for anyone who doesn't have millions at their disposal. It helps developers by keeping the rest of us out.

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By mrjanitor (registered) | Posted September 26, 2010 at 04:10:22

Mr. Santucci argues that an art centre and theatre should qualify as a legal, non-conforming use. But according to Mr. Fletcher, "it is the position of the City that the legal non-conforming status, once non-industrial uses occupied the space, was lost."

What would have been the costs involved if this work was done up front as mentioned above instead of after the fact. Also, how long would it taken to get the legal non-conforming status? Is legal non-conforming status a cheaper and easier route than a full re-zoning? If anyone has information on numbers and time-lines please share them.

Comment edited by mrjanitor on 2010-09-26 03:13:43

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By Gary Santucci (anonymous) | Posted September 26, 2010 at 07:38:51

An application to the Committee of Adjustment is $1200.00

The approval process takes a maximum of 60 days unless there is an appeal (see my previous post on this thread).

Al Fletcher states "it is the position of the City that the legal non-conforming status, once non-industrial uses occupied the space, was lost." When did this happen?
Perhaps it hinges on the city's definition of industrial. Here is a list of commercial tenants that have owned or occupied the building since it's construction in 1910; The Evel Casket Company, Reid Paper Box, Grays Printing, Industrial Filter Fabric, A greeting Card company, Delta Costume Rental, The Canadian Pearl Company(costume jewelery, a nightclub, an auction house, now a theatre and an art gallery. Every one of these tenants paid commercial taxes and continues to pay commercial taxes and have never given up on the commercial use of the building.(PERHAPS IT WAS THE GREETING CARD COMPANY IN THE 60'S)

HERE ARE THE THREE MAIN POINTS OF CONTENTION

LEGAL NON CONFORMING USE- We have always asserted our legal non-conforming use notwithstanding the zoning issues. We are prepared to demonstrate this in court.

DISCLOSURE FOR OUR DEFENCE- The City of Hamilton has refused to hand over the requested files and correspondence to support our case. This after 12 court appearances.

COURT DIRECTIVE TO SETTLE - After our latest court appearance the Judge mandated that the City meet with us to resolve the issue. The result of this meeting was the laying of a second charge of illegal use (same as the first). This second charge was presented to us by the Superintendent of By-Law enforcement at this meeting.

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By seancb (registered) - website | Posted September 26, 2010 at 09:19:12

they just want you to sell it to vranich

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By Messiah! (anonymous) | Posted September 26, 2010 at 10:12:29

Hang in Gary. Oct. 26 is coming!

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By Imperial (anonymous) | Posted September 26, 2010 at 13:02:11

Great debate going on this issue.

So the biggest issue here is that we've not managed to find a common ground solution to bridge the gap between now and the new OP for the Pearl, and a larger ongoing issue that was mentioned by City Manager Chris Murray - the City's need to increase non-residential tax base income to become sustainable.

Both completely valid issues.

We as citizens should be glad that our city officials are trying to reserve the disturbing tax trend in our city. This affects our city's ability to pay for other needed services (including increases to arts funding programs). Increase the non-residential tax base and we increase the City budget without hitting our HSR fees, or residential property tax. All good.

Keeping the entrepreneurial and creative spirit alive in Hamilton by allowing new business owners to exist in "non-conforming" use spaces is also clearly vital. Regardless of how messy the process has been with the Pearl - the vision of the space, it's programming and intended positive impact on the neighbourhood is indisputable.

So here is our middle ground.

The Hamilton Future Fund was created in order to seed legacy building projects in our community. It seems to me that we've lost that picture on the PAN AM Games sham for long enough.

If our community wants the light industrial spaces of our past converted into new neighbourhood hubs, new centres for the arts or recreation, or community building lets do the following:

Propose that a set bundle of money from the Future Fund go to towards paying the fees of projects that meet these goals. We set an annual or semi-annual application process where would be project can pitch the benefits of their project to the Future Fund Board. The FFB would set an annual budget or something of who much could come from this program and the Board would cover the costs of the fees to the city and such with set conditions (SUCH AS - if the building were to be sold the owner would contribute a percentage of the funds granted back to the Future Fund).

This would ensure the City gets its fees paid and continues to work at the non-residential tax base. We stand firm that this process is due to the cultural and community building nature of the projects proposed - therefor no excemptions for drive-thrus and big box stores. Unless the citizens of Hamilton stand up and say they want that in their neighbourhood.


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By Imperial (anonymous) | Posted September 26, 2010 at 15:25:20

Gary - I think there are some keys definitions that need to be clarified here. For the benefit of your case.

Many of the uses you listed since 1910 would most certainly qualify as commercial - many are also industrial. These definitions have changed numerous times since 1910 as our understanding of what industrial and commercial are. A printing or box making company in the 1930s would most certainly qualify as industrial due to the processes and handling restrictions of chemicals at that time. We've found this at numerous properties.

The shift begins when the costume rental company comes into the mix as this is when general public may have begun having access to the space. Prior to that the occupants would have been primarily the workers - therefor a controlled environment being exposed to the chemicals and potential hazards.

My understanding is that the major shift happens when the Pearl moves in and introduces a theatre, living space and retail space (the gallery. These are three distinct zonings - residential, retail and public assembly. Not that I don't think these should allowed to mix when appropriately divided and such (as with the Pearl - ref: spinklers in good working order, separate entrances, etc..).

The biggest issue is the performance space from my understanding. This brings the added volume of patrons which merits the parking. This brings the regular alcohol permits which merits a LCBO process. Its the scheduled and primary business model being based on live performance that seems to be the biggest issue.

Can this be altered by doing fewer (less regular) performances?
-possibly but this my also effect the viability of the business
Could that be augmented with revenue from other types of uses that do fit the zoning (ie live/work studios)
-possibly but again changes the vision of the Pearl

Just throwing out ideas.

Maybe you can help everyone understand a little more be providing the definitions of the zoning which you and the City are in dispute about.
The more specific the better so everyone can see where the exact issue lies.

Clearly it's not with the community benefit - so maybe it wordsmithing and getting down to specific definitions that's holding this back.

Jeremy

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By mrjanitor (registered) | Posted September 26, 2010 at 15:41:09

Once again I have to ask the community for information...

When and more specifically why was the zoning changed from light industrial to residential? I'm assuming from Gary's posts that the zoning change was very recent, just before the start of his project. Was the change initiated by the city and was it something sweeping that was applied to many similar properties at the same time or was it specific to the property in question? Were there private interests that wanted the property for a condo conversion before Gary and Barbara bought it? Gary has been very generous with information and I feel I can understand his positions, now I am trying to figure out the reasoning the city used before Gary and Barbara purchased the property and why the city stated that they would appeal a non-conforming use.

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By Robert Drake (anonymous) | Posted September 26, 2010 at 16:13:56

The quantum of these fees are ridiculous.

Even more ludicrous is the treatment the city has given you in court. If a judge suggests both sides meet for a settlement it's bad faith for the city to start throwing additional charges at you at those meetings.

I can understand them not wanting to budge on the zoning, even though I disagree with them. But it sounds like their behaviour in court has been despicable, and of course it's our tax dollars paying city lawyers to jerk you around...

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By Gary Santucci (anonymous) | Posted September 26, 2010 at 17:47:07

1986 turns out was bad year for many of our industrial, commercial and institutional buildings in the core of Hamilton. A City government initiative essentially took away the property rights of the owners by rezoning their buildings to various classifications of residential use. These categories have innocuous names like D2, D5 urban protected etc. In so doing they created the use known as "Legal Non-Conforming Use". Owners and purchasers of these buildings have submitted and do submit applications to the Committee of Adjustment to expand their Legal Non-conforming use with a variance(exactly what we are proposing). As long as there is a contiguous commercial use or intent the use remains no matter what the zoning is. Please see the Cannon Street file that can be found on our website www.thepearlcompany.ca by selecting the rezone tab.It is very instructive as it relates to this topic. I can only share so much information on the blogs with all of you, however, perhaps now is the time to convene an open forum to present all of the information on how the City of Hamilton has used its considerable power of differentiation. In the meantime I will endeavour to clarify the points.

Gary Santucci

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By Gary Santucci (anonymous) | Posted September 26, 2010 at 18:50:37

Another Zoning Anomaly

To view a Zoning Map of the immediate area around the Pearl Company a zoning map can be found under the heading 042zoning-map-954-996-annotated. Just log on to our site and select the rezone tab. There you will see that all of the houses to the west of the Pearl Company on King William to Tisdale are zoned "H Commercial" and taxed as residential. We are zoned residential and taxed as commercial. The City has said to us, that's your problem. I have said to the City , no it's your problem fix it!

Gary Santucci

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By Gary Santucci (anonymous) | Posted September 26, 2010 at 19:27:55

I Just had the pleasure of meeting the owner's of Gray's Printing, former tenants of our building in the 70's and 80's, Tony and Marlene their first time here. They reminisced about their operation, showed us where their printing press was positioned. I still have the hand-painted sign that was on their office door. They also informed us about two other small businesses that once occupied the third floor of our building, a fashion accessories business that sold sunglasses and gloves. It was called Peepers. The second business was a picture framing business that framed fine art. Imagine that, art at 16 Steven Street. The Pearl Company carrying on the entrepreneurial tradition. Thank you Tony and Marlene!

Gary Santucci

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By jonathan dalton (registered) | Posted September 26, 2010 at 21:05:29

I am not commenting on the site it's location or it's use because I don't really care.

And that's why I can't take your comment seriously. City bureaucrats and elected officials are supposed to care - they're paid to. And they need to look at the specifics of the site and its location and it use to appreciate what's going on here.

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By ummm..... (anonymous) | Posted September 26, 2010 at 21:44:51

i wonder what the neighbours think of the current illegal use? i wonder if they have any issues with the facility? i wonder how we could find out? hmmm...

i know! if only there was a process for changing use of a building that was facilitated by a larger group that represents the population, lets call it "the city." as part of this process, property owners who would like to change the use of a building, which they purchased knowing what the zoning was, could discuss with the community their plans and find out if the people who live next door and are directly exposed to the new use, have any real and material reason to object to the new proposed use. then, if everyone is cool with it the new use would be permitted.

wouldn't that be great?

or i guess we could just let anyone do anything with buildings, screw everybody else.

if "you can't pull me over and charge me for speeding because i see other people speeding all the time" was a valid defence for breaking the law in society, where would we be?

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By Answering (anonymous) | Posted September 26, 2010 at 22:28:32

Ummm.....,

I think that was answered here;http://www.raisethehammer.org/article/1183/demise_of_the_pearl_company

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By ummm..... (anonymous) | Posted September 26, 2010 at 22:47:20

oh, good! glad to hear that everyone supports this in the community! i was worried there for a minute.

i guess we really should just scrap the rezoning deal entirely. makes sense. in place of that we can just have property owners hand out flyers and then let us know that everything is cool and that there are no problems. the great part about this system is that by placing the responsibility on the proponent who has a direct interest in the project to come to a conclusion as to whether it should be allowed or not is that there is absolutely no possibility anyone could just say that everyone loves it! perfect!

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By Undustrial (registered) - website | Posted September 26, 2010 at 23:03:26

The issue here isn't just the Pearl Company.

This kind of zoning lunacy is imposed right across the city. Imposing high costs on any building use that doesn't fit the narrow confines of city planners' vision for the area is like throwing a wet blanket on unconventional and creative building uses. It means that 90% or more of Hamiltonians are priced out of the market, and can't even consider something like a store-front or warehouse the size of the average Ancaster garage.

Every step in this process is set up to benefit City Hall bureaucrats, legal professionals and big development firms. Claiming that "zoning laws exist to protect neighbours" is hogwash. There's no binding community consultation here. Just an endlessly expensive and complicated review process.

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By jason (registered) | Posted September 26, 2010 at 23:34:52

i guess we really should just scrap the rezoning deal entirely. makes sense. in place of that we can just have property owners hand out flyers and then let us know that everything is cool and that there are no problems.

Umm, believe it or not, this is exactly how the system works already. There have been several projects in my hood that city staff were recommending be denied (for no reason other than they were unique, new, groundbreaking etc....). The property owners handed out flyers, got community support, had people sign petitions and write letters in support of the projects and they were approved.

Granted, the big link in this process was Councillor McHattie working to see these projects move forward due to their positive impact in the neighbourhood. Without that critical support from the local councillor all the letters in the world won't make a difference - The Pearl is a perfect example. I can confidently say that if the Pearl Company was located in Ward 1, this situation would have been resolved many years ago.

Comment edited by jason on 2010-09-26 22:35:59

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By TnT (registered) | Posted September 27, 2010 at 00:20:21

Gee, thanks alot Jason! Why not lord over us from your smug little fiefdom that is Ward 1 while us poor slobs have slog on with the bafoonery that is Morelli 3 sorry I mean Ward 3

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By Mahesh_P_Butani (registered) - website | Posted September 27, 2010 at 02:18:46

Here is an one big idea worth sending to all our city staff including the council:

The real crisis? We stopped being wise:

Barry Schwartz makes a passionate call for practical wisdom as an antidote to a society gone mad with bureaucracy. He argues powerfully that rules often fail us, incentives often backfire, and practical, everyday wisdom will help rebuild our world.

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By mrjanitor (registered) | Posted September 27, 2010 at 05:44:43

Jason,

Specifically what projects went forward as described and what were the zoning issues? Did the people running the project open before leafleting and getting approvals or did they do this after opening? If they did this after opening I'm wondering if any precedents have been set for the Pearl Company.

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By Gary Santucci (anonymous) | Posted September 27, 2010 at 06:12:43

Planning Process - Is it working?

When we met with the Superintendent of By-Law, Glyn Wide, he verified what the residents of Ward 3 already knew; On Councillor Morelli's watch over the last 20 years, Ward 3 has become the area that has the highest concentration of illegal multiple dwellings. That is to say, single family homes that have been converted to duplexes, triplexes etc. They continue to be taxed at single family residential rates. This also includes storefronts that are also being used as residences, illegally in contravention of the By-Laws. There is an interesting side bar to all of this. Horizon Utilities have installed multiple meters on these properties in contravention of the stated policy of the City that requires that all of the approvals be in place before doing so. All of these properties have escaped the public scrutiny that the Pearl Company has undergone. The residents in our neighbourhoods were never given the opportunity for public consultation.

Note: The Pearl Company is assessed and pays commercial taxes that are twice as high as residential and they are up to date. Our taxes have climbed by 20% since we purchased the building almost 5 years ago. One of the first things that the City said to us about our project was " We(the City) are going to ask your immediate neighbours what they think about your project" We took that very seriously. However it would seem that not all projects are created equally.

Gary Santucci


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By TnT (registered) | Posted September 27, 2010 at 08:10:51

I had an even darker thought: doesn't this zoning hassle make it tough to sell now? What possible use can the property be without an investor having dump hundreds of thousands of dollars into it? Not good.

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By highwater (registered) | Posted September 27, 2010 at 08:36:07

^It's zoned residential, so I'm sure one of our local 'developers' would have no trouble getting hundreds of thousands of public dollars to turn it into subsidized housing. That's probably what Morelli is hoping for.

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By jason (registered) | Posted September 27, 2010 at 09:30:40

Mr Janitor, projects that come to mind are Rolly Rockets at King and Locke and the condo development on Strathcona, just south of King. Both, however, did their leafleting and garnered community support before going to council. The recent CATCH email newsletter has info on the Strathcona condo project. Staff recommended rejecting it, but it was approved thanks to support from neighbours and McHattie.

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By Gary Santucci (anonymous) | Posted September 27, 2010 at 09:34:26

Residential Uses

West Avenue School is a good example; it now contains 24 x 400 sq.ft. geared to income units. The school is recognized as a national Historic Site. It is located in Ward 3 and has received close to $2,000,000.00 in public money to renovate. The project also received a City Heritage grant of $150,000.00 to restore some of the key features, such as the original slate roofing tiles . Driving by you will see that the slate roof is no longer in place and many of the features of the building have been modified or have disappeared.

Gary Santucci

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By IngyMedia (registered) - website | Posted September 27, 2010 at 10:51:50

I have lived in this city for 3 years now and very close to the Pearl Company. As an artist myself, I often don't have money to go to their events. I walk by it regularly on on way to the grocery store and notice they are having some sort of opening. The front doors are very unwelcoming and quite frankly the people I have seen coming or going look down their noses at you. So why would I care if they close the doors permanently? Arts are for the people, all people, poor or wealthy. If an artist feels unwelcome there is something wrong. I could understand the city bending rules and helping get around the expensive fees if they catered to all folks but I believe most people in my neighbourhood wouldn't even miss it.

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By Gary Santucci (anonymous) | Posted September 27, 2010 at 11:12:56

Hello Ingymedia

I have visited your site and posted your information. I see that you travel quite a bit and that you maintain two addresses one in Hamilton and one in London. I see that you must have very high overhead. If you would only have come into the building to attend and event and spoke to a human being (instead of a door) you may have found out that we have artist's discounts and will never turn away anyone who arrives and does not have the $15-$20 average ticket price for most of our events. It is true that sometimes we have more expensive events they are usually fundraisers as is the Tom Wilson Event. If you don't have the money to attend I would welcome you as a volunteer to help us for the evening.

Gary Santucci


Phone (xxxxxxxxxx) Leave a Message but emailing me is more reliable when I am travelling or on set, which is quite often.

Email photos@xxxxxxxx

Mailing address when I am in London

xxx Dundas Street
London, ON
N5W 2Z6

Have a look around my site. I'm a freelance photographer/videographer based in Hamilton Ontario

I do Portraiture, News Photography, Film Making and watercolour paintings of buildings.

Hamilton Ontario is my home and I enjoy travelling to London, Niagara Falls and Toronto for location sittings often. London Ontario is my second home and I divide my time between the two cities.

I have professional studio equipment at Old East Studios in London, Ontario. if you want formal portraits in a studio environment or a portable portrait kit if you want photos taken in the great outdoors or the comfort of your home.

I also love taking romantic couple photos so don't forget me for your engagement and anniversary photos and videos!

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By IngyMedia (registered) - website | Posted September 27, 2010 at 11:39:02

Lol! Thanks Gary! Talk about a quick response. I am still glad I posted so others will see your reply. I will definitely be in touch. My space in London is a shared space and we have many events there with a stage and audience chairs and gallery area. The East Downtown neighbourhood is very similar to this one and I understand that you can't have everyone walking in. It is a tough balance to be both welcoming and careful who attends. I'm sure that others who see your reply to me will now also feel less intimidated to walk through those doors.

Sincerely Ingelbert

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By Kiely (registered) | Posted September 27, 2010 at 13:45:03

The zoning bylaws of the city need to be changed. The cost to rezone and refurb these old industrial use buildings needs to be simplified if the city is ever going to see benefit from these resources. The fines being issued are absurd and yes the Pearl is a great place and a benefit to the community.

But the cost of creating this facility (including all required permits) should have been known up front, if they weren't than the proper homework was not done. But I doubt that is the case. So somewhere along the line the business decision was made not to even bother trying to pay for the required rezoning or (according to the city) even for the required building permits. This was a bad decision. Enforcers of rules very rarely appreciate having the rules they enforce ignored. Doing so predictably incurs their the wrath.

While I would love to see more facilities like the Pearl in Hamilton and many of the other beautiful old industrial buildings brought back to life, I can't seem to shake the feeling that this whole situation has played out in a pretty predictable way once Mr. Santucci made the fateful decision to simply not play by the rules because they cost too much.

The artist in me feels for you Mr. Santucci, but the pragmatist in me wants to give you a stern lecture.

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By Undustrial (registered) - website | Posted September 27, 2010 at 14:18:00

A little while I got called in to help some friends in Ward 3 deal with a belligerent and abusive landlord. We called the city repeatedly, and the guy they sent down to deal with bylaw/zoning/code issues was firmly of the opinion that we shouldn't be allowed to bother him at work (by asking him to do his job). My experience in this ward suggests that the Gary Santucci just doesn't know the magic words ("it's ok, I'm a slumlord). If he were barely literate, kept up a building that would fail inspection in a Brazilian shantytown, and hired crackheads to harass tenants, he'd be off the hook for sure.

We're talking about a city that starts building highways withouat the proper legal permits, then sues federal agencies for asking. A city that allows massive numbers of new suburban homes to go up without permits. And a city which has shown itself thoroughly unwilling to enforce these laws against owners who leave these properties to rot.

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By mikeonthemountain (registered) | Posted September 27, 2010 at 19:47:59

Rolly Rockets at King and Locke and the condo development on Strathcona ... Staff recommended rejecting it, but it was approved thanks to support from neighbours and McHattie

I'm sure one of our local 'developers' would have no trouble getting hundreds of thousands of public dollars to turn it into subsidized housing

If he were barely literate, kept up a building that would fail inspection in a Brazilian shantytown, and hired crackheads to harass tenants, he'd be off the hook for sure.

Given the bizarre illogic of the current regulation and the way some projects are given favor and other not, given the pattern that emerges ... could that be the idea?

I'm not a conspiracy theorist by default but it does happen and when a clear pattern starts to emerge ...

I'm just thinking out loud, that's all : what's really going on here?

Comment edited by mikeonthemountain on 2010-09-27 18:50:50

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By Gary Santucci (anonymous) | Posted September 27, 2010 at 20:01:25

Kiely these are the main points of this situation. If you need clarification on any of the terminology please contact me at 905 524 0606. Information previously posted.

WE HAVE BEEN CHARGED BUT NOT CONVICTED!

LEGAL NON CONFORMING USE- We have always asserted our legal non-conforming use notwithstanding the zoning issues. We are prepared to demonstrate this in court.

DISCLOSURE FOR OUR DEFENCE- The City of Hamilton has refused to hand over the requested files and correspondence to support our case. This after 12 court appearances.

COURT DIRECTIVE TO SETTLE - After our latest court appearance the Judge mandated that the City meet with us to resolve the issue. The result of this meeting was the laying of a second charge of illegal use (same as the first). This second charge was presented to us by the Superintendent of By-Law enforcement at this meeting.

Gary Santucci

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By Jimbo (anonymous) | Posted September 28, 2010 at 07:41:04

Interestingly, Ward 3 candidate Mark Dimillo (Bernie Jr.?) has come out very strongly against The Pearl.

http://www.markdforward3.ca/what-is-your-position-on-the-pearl/2010/09/27/

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By Kiely (registered) | Posted September 28, 2010 at 08:37:07

If you need clarification on any of the terminology

I think I can manage Mr. Santucci.

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By GO GO (anonymous) | Posted September 29, 2010 at 09:05:06

There is an all candidates meeting–Ward 3 on Oct 20 • 7:00pm
http://www.facebook.com/event.php?eid=103820179681500

Cheers,

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By Rolly (anonymous) | Posted October 01, 2010 at 02:31:07

This situation is indicative of the overall attitude that resonates through almost every crevice of the political and bureaucratic process in The City Of Hamilton.

My Anecdotal example in trying to open Rolly Rocket’s BBQ is different but equally ridiculous.

We had NO zoning issues, We were opening a restaurant /Bar in a location that was a restaurant/tavern/Hotel/Bar for 150 years!! We followed the process as laid out by all City officials involved. We went above and beyond what should have been required by hiring and engaging professionals who were familiar with the process of trying to open a business in Hamilton. 2 Lawyers, architect, engineer, Licensing Consultant, various licensed contractors etc... We canvassed the neighbourhood, held open houses, creating a completely transparent application which was not reciprocated by the City.

We kept a completely open dialogue with the City only to have our project opposed anyway. We only found out about the opposition by an internal source within the licensing agency (all the while we were in constant communication with those who triggered the opposition and yet they gave us NO indication there was an issue).

There was no basis for the opposition. It was simply used as leverage to attempt to have us change our project to suit the personal agendas of those who have no appreciation or comprehension for the sacrifice, effort and commitment that was being made to invest in this project. We have every confidence the City would have failed completely should their opposition had reached the hearing stage. The city representatives were anticipating the time and added cost would be enough for us to bend to their whims.

It wasn’t until City representatives realized the community was backing our project and they had more to lose than gain by upholding their frivolous opposition, finally they lamented but not until we had incurred significant cost and loses with a delayed opening.

Miraculously, once the realization of the communities position on the matter came to light, enough could not have been done for us to help the process along. The only problem is the damage was done and although we appreciated the new change in attitude and new found co-operation it leaves a very bitter taste that it had to happen the way it did in the first place.

Bottom line is the City of Hamilton needs to do more than pay lip service and not just “SAY” they are making changes they need to actually change the systemic negative “You Can’t Do That” attitude and indoctrinate a “How can we” attitude.

The City’s initial reaction to every project should be how can we help and make this work. Until this is a reality we will continue to lose opportunities to those communities with a positive engaging approach.

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By Gary Santucci (anonymous) | Posted October 01, 2010 at 08:52:15

Thank you Rolly for sharing your story.

Throughout our five years of interaction with the City, scores of people have contacted us with their moral support to keep up the fight. These people were not just supporters, they were people who attempted to open a small business and had given up never to attempt again. Others who had heard about our problems refused to even try especially in Ward 3. I would encourage others to come forward with their stories as well. We can't have another 4 years of the same regime.

Gary Santucci

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By TnT (registered) | Posted October 01, 2010 at 09:00:27

Seems the city will offer all sorts of "off the record" advice, but the people with any of the power to change anything are unreachable. Arbitrary fees are ok, but then the zoning law is set in stone? Is Jane Jacobs spinning in her grave considering the dark days ahead?

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By seancb (registered) - website | Posted October 03, 2010 at 14:49:13

Because I believe so strongly in our city, I found it an absolute shame that it did not have a backpacker's hostel to offer affordable accommodations to travellers.

I assumed that others' belief in Hamilton was so weak that nobody else thought that such an idea would fly. But my love for Hamilton told me that there was so much to see and do here, especially in relation to nature and outdoor activities, that a Hostel would do very well - even if marketing was targeted only to regional travellers. So my partner and I decided we would open a small backpacker's hostel downtown (I mean, where else, right?)

I guess our first problem was not understanding exactly how impossible it would be to deal with the city in attempting to open a small business.

Asking off-the-record questions and gathering basic information was not too bad, depending on your luck in finding a contact willing to listen and answer. But when it came to the nitty gritty, the nightmares began.

Rather than offering any assistance in interpreting the bylaws, any requests usually resulted in receipt of a pdf copy of bylaws which "might" be relevant (it's up to you to figure it out for yourself). I understand that the entrepreneur has the ultimate responsibility in analyzing the bylaws and ensuring compliance, but a city that is truly "open for business" should be dedicated to assisting with establishment of businesses small and large. We were not looking for hand holding, but it would have been nice to even be pointed in the right direction.

In time we determined that there are actually no bylaws currently on the books that account for hostels - because when the bylaws were written (60 years ago?), the concept of a backpacker's hostel either didn't exist or was too "fringe" to be considered.

For crying out loud, we still have bylaws which govern "parking" of horses.

So we decided the closest applicable laws were the B&B bylaws. We started down that path, determined what all of the requirements were (including parking which would be a show-stopper for almost any downtown accommodations business) and contacted the city about the most efficient order in which to apply for various permits.

We were told we had to wait because "the bylaws are being rewritten so we don't want to accept and process applications and then have the laws change in the middle of the process". Logical, right? So we waited. A month. Two months. Six months. A year. This was three years ago and as far as I know, they are STILL not accepting applications. I haven't checked because we gave up after the first few months. We got jobs. We moved on.

How many more stories like ours are out there? It's easy to discount those who tried and failed as "not being aware of the process", but how many enterprises never even get past the planning stage because of the extreme bureaucracy roadblock?

What a sad, sorry state of affairs this city is in...

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