Bylaw Enforcement Appeals Board

RM of Lajord No. 128

Between:

Darrell and Lori Hobbins

(Appellant)

- and -

RM of Lajord No. 128

(Respondent)

Represented by

This appeal hearing was heard in the RM of Lajord office in Lajord, SK. on Jan 24, 2019.

The Law:

[1] This appeal arises pursuant to Section 365 et al of The Municipalities Act, 2005 (the Act) with potential references to the Municipalities Act Regulations (the Regulations).  The Board will apply all relevant sections from this legislation and, where appropriate, the Board will quote specific sections or references within the body of this decision.

Role of the Board:

[2] The role of the Bylaw Enforcement Appeals Board (the Board) is to consider the facts, evidence and testimony presented to the Board during a bylaw enforcement / order to remedy appeal hearing to determine if the Appellant provides sufficient evidence or compelling reasons to prove an error has been made by the Bylaw Enforcement Officer or municipal Council.

[3] The Board may request undertakings based on the evidence and testimony it hears during an appeal to confirm calculations, facts, or other evidence, or to consider alternate scenarios using the arguments and evidence presented.

[4] The Board must reach its decision based solely on the grounds stated in the notice of appeal along with the evidence presented to the Board during the hearing, including any subsequent undertakings requested by the Board that are related to the evidence and testimony presented at the hearing.

Exhibits:

[5]   The following Exhibits were filed with the Board and constitute the Record of the Board:

•      Exhibit A-1: Appellant’s notice of appeal dated Dec. 28, 2018.

•      Exhibit A-2: Letter regarding property from Don Godfrey

•      Exhibit A-3: Letter regarding property from Eldon Lautermilch

•      Exhibit R-1: Respondent’s chronology of events

•      Exhibit R-2: Various correspondence between the RM and the Appellant

•      Exhibit R-3: Minutes from council meeting authorizing an order to remedy be issued to the Appellants

•      Exhibit R-4: Various photographs of the subject property

Preliminary Matters:

[6] The Appellant presented 2 new documents at the hearing.  The Appellant was reminded that documents were to have been presented 5 days in advance of the hearing.  The Respondent offered no objection to the documents. She made sufficient copies for all parties, and the documents were accepted as Exhibits A-2 and A-3.

Facts:

[7] The Appellant is the owner of residential property in the RM of Lajord No. 128.  The Appellant purchased a vacant lot sometime in late 2011 or early 2012 and began plans to construct a principle residence on the property in February 2012. 

[8] The Appellant submitted a development permit application in June 8, 2012.  The Board assumes this was approved, as construction began and the basement footprint was excavated shortly after.

[9] The excavation remained as an open pit for a period of time, and later an ICF concrete foundation was poured.  This, for the most part, is the extent of the construction project today. 

[10] Complaints were received by the RM from neighboring property owners about water accumulating in the open foundation pit as well as safety concerns surrounding the property.  Numerous letters and discussions were exchanged by the RM and the Appellants between July of 2013 up to Dec. 18, 2018.  See Exhibit R-1 for full details.

[11] In addition to the incomplete state of the construction there is debris and other miscellaneous items situated on portions of the lot as well as general lack of maintenance such as cutting grass and weed control.

[12] A notice of violation and final order to remedy was issued by the RM to the Appellants on October 16, 2018 under the nuisance abatement section of bylaw 2018-06.  This is the matter now under appeal.

Position of the Appellant:

[13] The Appellants indicate they no longer have the financial means to complete construction of the intended new house and have been trying to sell the property “as is” complete with the partially completed foundation.  The Appellant is reluctant to destroy the foundation and level the property as instructed in the notice of violation.

[14] The Appellant believes the existing foundation adds value to the property and that being forced to remove it would cause both new expense for its removal as well as loss of value to the property as a whole.  The Appellant is upset it will cost him money to remove the incomplete foundation which he believes will also reduce the value of the lot itself.

[15] The Appellant indicates he has already removed the skid-steer loader formerly situated on the property and indicates the other items including trusses, a travel trailer, and miscellaneous debris will be removed in the spring after the winter melt.  The Appellant indicates the storage shed should be allowed to remain as this structure is complete and in reasonable condition.  The garden tractor should also be allowed to remain as it is necessary to cut the grass on the property.

[16] The Appellant stressed repeatedly he is making effort to sell the property and has had interest as recent as last week.  The Appellants submissions A-2 and A-3 are intended to demonstrate the foundation remains viable and structurally sound, and that a market exists for this property.  He is asking for some lenience and more time so he can find a buyer and finalize a transaction for this property.

[17] The Appellant also does not believe the RM has the authority to order such actions against the Appellant or to take their own steps to remedy the violation.

Position of the Respondent:

[18] The Respondent asked the Appellant if he had any idea when the construction would be complete.  The Appellant had no idea when it would be complete since it would be based on the future date of sale and he could not predict when this would happen.  The Appellant confirmed he is personally unable to complete construction of the property.

[19] The Respondent introduced their bylaw 2018-006 which is known as the Nuisance Abatement bylaw.  This bylaw exists to protect the safety, health and welfare of the residents of Kronau.  The Respondent points the Board to Exhibit R-4, a series of photographs of the subject property taken in July 2018.  In addition to the unfinished foundation, she indicates there are numerous other pieces of equipment, debris, and material that create an eyesore within the neighborhood as well as hazards and other safety concerns.

[20] The Respondent appears sympathetic towards the Appellant, yet also frustrated by the lack of action taken by the Appellant over the past 5 to 6 years despite their numerous attempts to have these circumstances remedied over this period.  To date, the only action taken by the Appellant is to remove the skid-steer loader and related attachments.

Board Comments:

[21] The Board understands and recognizes the recent changes in the provincial economy.  This is part of the natural ebb and flow of any economy.  The fact the Appellant can no longer afford to complete the construction, whether as a result of the provincial economy or personal circumstances, cannot be considered when considering the actus reas involved with the present appeal.

Decision:

[22] The Board is convinced, through photographs, evidence, and testimony provided by the Respondent that the subject property is in clear violation of bylaw 2018-006, The Nuisance Abatement bylaw.  The Board therefore finds the Notice of Violation is both valid and justified.  Circumstances leading to the present condition of the property are mostly moot, whether personal or economic in nature.  The Board accepts the property is in violation of the bylaw and must be remedied, whether by the owner or by the RM.

[23] The chronology of events leading to this appeal and the Board’s decision is extensive and dates back at least 5 years.  The Board believes the RM has shown great patience and sympathy for the Appellants’ position and has offered extensions, or not taken full action they likely were legally allowed to take with previous orders.

[24] Notwithstanding any challenge of this decision to the Saskatchewan Court of Appeal, this decision is intended to finalize the expectations with respect to the subject property.  The Notice of Violation is valid, however the following new conditions shall be placed on this notice:

a)      The Appellant shall have until May 31, 2019 to clean up and remove all debris, garbage, items in storage on the lot and other unsightly items on the property including the roof trusses.

b)      Assuming the site is cleaned up by May 31^st, 2019 with all debris and other material removed by May 31^st, 2019 then the garden tractor, shed and foundation shall be allowed to remain until August 31^st 2019.

c)      If the property has not been generally cleaned by May 31, 2019 the RM may take any action it deems necessary, at the owners’ expense, to restore the property to its original condition immediately after May 31^st, 2019.

d)      Since it is clear the owner is unable to complete construction of the new house, if the lot has not been sold by August 31, 2019 the RM shall have full right to enforce their order as issued. Any costs born by the RM shall be recovered from the Appellants according to the terms and procedures stipulated by the Act.

Dated at Regina, Saskatchewan this 4^th day of February, 2019.