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City to build wall on man's property, then make him pay to maintain it
The law says they can do it to you, too
Randall Denley
The Ottawa Citizen
Tuesday, October 05, 2004
CREDIT: Julie Oliver, The Ottawa Citizen
Bernie MacDonald wonders why he has to give up a piece of his property so the city can build a wall on it, then make him responsible for it.
When Bernie MacDonald bought an end unit townhouse in a new Kanata development, he knew there would be a sound barrier separating his property from the street. What he didn't know was that the wall would be built 1.2 metres onto his property and that he'd be responsible for its maintenance, insurance and ultimate replacement.
Who would have thought that government could build something on your property and make you responsible for its upkeep?
What's worse, it turns out that sticking homeowners with this liability for what seems like a city item is standard operating procedure. If you have one of these on your property in a newer subdivision, you are probably on the hook too.
It's all done rather cleverly. Buried in the boilerplate of the purchase agreement with builders is a clause in which the homeowner agrees to undertake responsibility for the sound wall. Urbandale, the builder, certainly didn't seem to make it clear enough just where the wall would go, but the city's argument that MacDonald should have known he'd have to kiss 1.2 metres of property goodbye is a bit wobbly. The sales agreement clause refers to attached documents that show the location of the wall. They aren't attached, though, and they aren't available at the registry office.
It took the city 21/2 months to come up with a diagram that shows the fence's intrusion, and it's still not definitive, says MacDonald's lawyer, Paul Webber. It's not even clear that the current location of the wall is the one that was specified when MacDonald bought his house. Normally, a sound wall like this sits 15 centimetres inside the property line, not 1.2 metres.
"This is unique," says Mary Jarvis, the director of planning for builder Urbandale.
This wall is deeper than normal, because of the high level of aesthetics required in the new Kanata Town Centre next to Centrum. That necessitates a wall with brick pillars, and 60 centimetres of shrubbery.
The reputed aesthetics aren't actually much in evidence as you drive through this part of Kanata. The most prominent part of the Town Centre is a big-box jumble that features such aesthetic wonders as a Wal-Mart.
If the wall is built 1.2 metres inside MacDonald's property, he will have to tear out shrubs and trees he has planted, then be responsible for new shrubs planted by the city on the other side of the wall. He's also responsible for any damage to the wall, which costs $150 a metre to build.
This is the sort of problem one turns to a city councillor to solve, but Kanata Councillor Peggy Feltmate has done nothing more than forward e-mails from city staff. An e-mail to the mayor has gone unanswered.
Feltmate says staff told her it was a legal issue between the developer and the homeowner, and they didn't want to move the wall for fear of creating a precedent. She has heard from about a half dozen homeowners upset by the wall's location.
"It does seem like a lot, doesn't it?" Feltmate says of the intrusion into MacDonald's property.
The plan to widen Campeau Drive is the thing that has set off this chain of events. Not that the city is actually widening the road in any year that anyone can even forecast.
But it might widen it sometime. And if it did, there would be sound. That brings a provincial regulation into play.
To protect homeowners from the noise of cars, the province says all new construction must have sound barricades if the decibel level is above a threshold it sets.
The developer (read homeowner) pays for the sound fence, so the city wants it up now, not when it's needed.
The city does have choices. Is the widening of Campeau Drive either necessary or good urban planning? The worst kind of suburban street is the traffic sewer, in which no houses face the street and people are shut off from the street by ugly sound barrier walls.
MacDonald's house was only built in 2002. Why is the city persisting with this bad design?
The city could also make the fence shallower by dropping the highly aesthetic shrubbery that's supposed to come with it. Then MacDonald could keep the trees and shrubs he's already planted on his property.
Urbandale, keen to placate angry homeowners, has been pressing the city to move the wall. City staff has been inflexible but, aided by the clarifying light of publicity, indicated yesterday that perhaps the wall could be moved 60 centimetres forward, and the shrubs planted on city land. They had already rejected that plan earlier this summer.
It would be a half step, but why should homeowners be stuck with this wall at all?
The law says they can do it to you, too
Randall Denley
The Ottawa Citizen
Tuesday, October 05, 2004
CREDIT: Julie Oliver, The Ottawa Citizen
Bernie MacDonald wonders why he has to give up a piece of his property so the city can build a wall on it, then make him responsible for it.
When Bernie MacDonald bought an end unit townhouse in a new Kanata development, he knew there would be a sound barrier separating his property from the street. What he didn't know was that the wall would be built 1.2 metres onto his property and that he'd be responsible for its maintenance, insurance and ultimate replacement.
Who would have thought that government could build something on your property and make you responsible for its upkeep?
What's worse, it turns out that sticking homeowners with this liability for what seems like a city item is standard operating procedure. If you have one of these on your property in a newer subdivision, you are probably on the hook too.
It's all done rather cleverly. Buried in the boilerplate of the purchase agreement with builders is a clause in which the homeowner agrees to undertake responsibility for the sound wall. Urbandale, the builder, certainly didn't seem to make it clear enough just where the wall would go, but the city's argument that MacDonald should have known he'd have to kiss 1.2 metres of property goodbye is a bit wobbly. The sales agreement clause refers to attached documents that show the location of the wall. They aren't attached, though, and they aren't available at the registry office.
It took the city 21/2 months to come up with a diagram that shows the fence's intrusion, and it's still not definitive, says MacDonald's lawyer, Paul Webber. It's not even clear that the current location of the wall is the one that was specified when MacDonald bought his house. Normally, a sound wall like this sits 15 centimetres inside the property line, not 1.2 metres.
"This is unique," says Mary Jarvis, the director of planning for builder Urbandale.
This wall is deeper than normal, because of the high level of aesthetics required in the new Kanata Town Centre next to Centrum. That necessitates a wall with brick pillars, and 60 centimetres of shrubbery.
The reputed aesthetics aren't actually much in evidence as you drive through this part of Kanata. The most prominent part of the Town Centre is a big-box jumble that features such aesthetic wonders as a Wal-Mart.
If the wall is built 1.2 metres inside MacDonald's property, he will have to tear out shrubs and trees he has planted, then be responsible for new shrubs planted by the city on the other side of the wall. He's also responsible for any damage to the wall, which costs $150 a metre to build.
This is the sort of problem one turns to a city councillor to solve, but Kanata Councillor Peggy Feltmate has done nothing more than forward e-mails from city staff. An e-mail to the mayor has gone unanswered.
Feltmate says staff told her it was a legal issue between the developer and the homeowner, and they didn't want to move the wall for fear of creating a precedent. She has heard from about a half dozen homeowners upset by the wall's location.
"It does seem like a lot, doesn't it?" Feltmate says of the intrusion into MacDonald's property.
The plan to widen Campeau Drive is the thing that has set off this chain of events. Not that the city is actually widening the road in any year that anyone can even forecast.
But it might widen it sometime. And if it did, there would be sound. That brings a provincial regulation into play.
To protect homeowners from the noise of cars, the province says all new construction must have sound barricades if the decibel level is above a threshold it sets.
The developer (read homeowner) pays for the sound fence, so the city wants it up now, not when it's needed.
The city does have choices. Is the widening of Campeau Drive either necessary or good urban planning? The worst kind of suburban street is the traffic sewer, in which no houses face the street and people are shut off from the street by ugly sound barrier walls.
MacDonald's house was only built in 2002. Why is the city persisting with this bad design?
The city could also make the fence shallower by dropping the highly aesthetic shrubbery that's supposed to come with it. Then MacDonald could keep the trees and shrubs he's already planted on his property.
Urbandale, keen to placate angry homeowners, has been pressing the city to move the wall. City staff has been inflexible but, aided by the clarifying light of publicity, indicated yesterday that perhaps the wall could be moved 60 centimetres forward, and the shrubs planted on city land. They had already rejected that plan earlier this summer.
It would be a half step, but why should homeowners be stuck with this wall at all?
