‘BUILD IT, FILL IT OR FIX IT’
Westgate Properties given three choices for Capital Pointe hole
In what a city councillor is calling “a recipe for continual delay,” an appeal board has effectively blocked the City of Regina’s plan to fill in the Capital Pointe hole.
The Saskatchewan Building and Accessibility Standards Board released a decision on Friday that varied the city’s April backfill order for the stalled excavation site.
It gave Westgate Properties three options for what to do with its property at the northeast corner of Albert Street and Victoria Avenue.
The company ’s lawyer described them simply: “Build it, fill it or fix it.”
Westgate will have until Sept. 30 to inform the city of its choice. It would then be subject to timelines imposed by the board.
In the first place, it could restart work on the proposed 27-storey hotel and condo project by April 2019, and continue until the tower is built — with a completion date set for March 30, 2022.
Alternatively, Westgate could construct permanent shoring for the site. If it opts for that solution, work would need to start by the end of February 2019 and finish within a year of that date.
Finally, Westgate has the option of filling in the hole by April 30, 2019. That’s far later than what the city was seeking through its July tender for backfilling the site, which gave contractors an expected due date of Oct. 31 this year.
The news immediately prompted the city to withdraw its request for proposals for the work. A brief statement acknowledged it is “no longer in a legal position to backfill the excavation.”
The city added it is reviewing the board’s decision and considering options, noting “further legal action may be pending.”
Coun. Bob Hawkins said the decision should be appealed. He called it “disappointing ” and “unreasonable,” arguing the appeal board did not provide sufficient reasons.
“There’s nothing in that decision that would reassure me if I was working in one of the buildings surrounding that hole,” he said.
“It looks to be like a recipe for continual delay under any of the options.”
Westgate’s lawyer, Neil Abbott, of Gowling WLG, said his client has not yet revealed which option it will pursue. He said the company is now focusing on its “relief ” at what it considered an unreasonable order from the city.
But he suggested the permanent shoring option would be the “least invasive” of the three and “the most effective short-term solution.”
“Will this excavation be there in the spring ? I think that that is not an unlikely event,” he said.
Abbott said the board did a “very, very thorough job” in reaching its decision. He said the city ’s case was based on “a flawed approach.”
“They chose to make it about safety. If they wanted to make it about delay, they could have done that,” he said. “They didn’t.”
During a three-day hearing in July, the city argued the excavation pit was unsafe, with its expert pointing to shifting ground and risks to neighbouring buildings. City of Regina lawyer Christine Clifford said the situation “cannot continue.”
Abbott and his colleague Sahil Shoor countered that those problems had been remediated. They argued the site is safe and stable. In the event the board thought otherwise, they called for “continued monitoring ” rather than backfill.
In its decision, the appeal board agreed with Westgate that the site was not in an unsafe condition when the order to comply was written, and remains safe to this day. But it also agreed with the engineering experts who testified that “the site could not remain in its current state indefinitely.”
That led the board to order Westgate to submit monthly monitoring reports to the city — regardless of the option it chooses — and to “take all necessary remedial action to protect the temporary shoring, adjacent buildings, and rights of way from slumping or failure.” It also set October deadlines for Westgate to submit design and permit applications to the city for shoring or backfill.
All work will have to be completed “to the satisfaction of the City of Regina.”
Capital Pointe was first announced in 2009 under the name Westgate Plaza.
The next year it evolved into what was slated to become Regina’s tallest building: A 27-storey hotel and condo tower set for completion in 2012.
The project faced repeated delays and shifting developers. Fortress Real Developments — which now has a major stake in Westgate Properties — took a leading role in the project in 2014. It began excavation in late 2015.
At that point, completion was set for 2018. But Fortress blamed delays on ground conditions and debris from the former Plains Hotel. It later became apparent the company was facing challenges selling units in a glutted housing market, and had racked up a mountain of mortgages and builders liens.
Developers have sunk $14 million into the project.
Abbott raised that point in explaining why the company is unlikely to choose the option of backfilling the site, especially given its opposition to the city plan to do precisely that.
He acknowledged the permanent shoring might not be what the people of Regina want, as the excavation site would become — at least for the near future — “part of the landscape of Regina.”
Hawkins said Abbott has that right.
“I think the people of my ward and of this city will be very disappointed,” he said.
There’s nothing in that decision that would reassure me if I was working in one of the buildings surrounding that hole.