Man ordered to demolish brand new $500,000 home; it was built 12 feet too close to the road.

The Ottawa Citizen ^ | 4.27.02 | Dave Rogers

[mhking]

Too close to NCC land, $500,000 'dream' house must be torn down

Dave Rogers
The Ottawa Citizen
Saturday, April 27, 2002

Sunny Bad'aan offered the NCC $20,000 in landscaping to keep his 'dream house.'

Sunny Bad'aan offered the NCC $20,000 in landscaping to keep his 'dream house.'

A judge has ordered Ottawa builder and entrepreneur Sonny Bad'aan to demolish his nearly completed $500,000 home because he built it too close to the the National Capital Commission's Ottawa River Parkway.

Mr. Bad'aan, 57, and his wife Jo-Anne Bad'aan Bélanger bought the property on Lochaber Avenue near Westboro Beach on March 30, 2001, intending to build a dream home overlooking the Ottawa River for themselves and their three children.

After working as a builder for more than 30 years, Mr. Bad'aan knew he had to hire a lawyer to make sure he had clear title to the property and a surveyor so that the house would be correctly situated on the the lot.

He hired an architect to design the house.

Mr. Bad'aan claims the Ottawa law firm Honey/MacMillan failed to notice a restrictive covenant requiring the rear of the house be at least nine metres from the National Capital Commission property line on the parkway.

On Aug. 28, 2001 the NCC told him to tear down the 5,000-square-foot house because it was too close to its property line. The commission applied to the Ontario Superior Court of Justice for an order to have the house demolished.

In a ruling released this week, Justice Dan Chilcott said the main wall of the house is only 4.8 metres from the NCC fence, not the required nine metres and ordered the demolition of the house. Mr. Bad'aan said he believed there was nothing wrong with building the house so close to the parkway because the normal rear yard distance between a house and a neighbour's property is three metres.

"I accept that through no fault of their own the respondents (the Bad'aans) did not know of the restrictive covenant when they started building the house and I am sure that they did not purposely intend to violate the restrictive covenant," Judge Chilcott said in his ruling.

"However, if someone made an error who was retained by them, the respondents are ultimately accountable for that error."

Judge Chilcott said the house would be "detrimental to the public interest" and even if the front wall of the house was moved it would still be visible from the parkway and the NCC bike path.

"The court is not persuaded that if the structure is allowed to stay that the injury would be negligible," Judge Chilcott said. "Its impact is significant in my view.

"I am fully cognizant of the hardship and mental distress of the respondents as well as the great cost that will follow if the application is granted and that has given me great concern in arriving at my decision."

Mr. Bad'aan, who had spent $500,000 on the house by the time he stopped construction was in despair about the court order yesterday, but said he will demolish the house within two weeks.

"I can't believe they will waste $500,000 out of my pocket plus the land which cost $240,000," Mr. Bad'aan said. "It would cost about another quarter million to complete -- everything is done except the brick outside and the marble floors and carpets.

"We offered the NCC $20,000 for landscaping, legal fees and a penalty of $60,000 to show it is a mistake and I am ready to do something to correct it. This was to be my dream home and it fell apart because of (an) error. I knew nothing about the covenant."

Mr. Bad'aan said it is a waste to demolish a $500,000 house because the NCC wants the building to be four metres farther from its property line. He said the law firm is covered by insurance, but it could take years for the courts to hear his claim.

"I have never seen anything like this in 35 years in construction," Mr. Bad'aan said. "I am disappointed because I thought we could settle the problem with the NCC out of court.

"This was my dream. I wanted to build something out of the ordinary with a view of the Ottawa River. I will never build anywhere near NCC land again, not with such an arrogant organization. I will tear down the house and go somewhere else."

Mr. Bad'aan considered moving the house closer to the front of his pie-shaped property, but discovered the design of the front of the house would have to change for it to fit.

Moving the house to another lot would be too costly because of its size. The house would have to be cut in sections before the move or hydro lines would have to be taken down to provide clearance for the building.

Al O'Brien, a lawyer representing Eric Honey, Mr. Bad'aan's real estate lawyer, said he had been notified that Mr. Bad'aan will seek damages.

"There is a real issue to be determined by the court about what the parties knew and when they knew it," Mr. O'Brien said. "He has a right to commence an action against Mr. Honey and say what he believes happened. Then a defence will be advanced on behalf of Mr. Honey."

NCC spokeswoman Laurie Peters said the commission had to challenge the location of Mr. Bad'aan's house because allowing it to remain where it is would set a precedent that would encourage others to encroach upon NCC property.

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[jadimov]

Where or when did God give you property rights? ...The moment He brought me into this world...

Again, how do you know? Where is it written? Is it something that God told you directly or did you read it somewhere?

[jadimov]

good point.

[Cultural Jihad]

That's a good idea - make the government to tear down the house instead of being good little sheep.

So you want taxpayer money to pay for a private citizens screwup? Uh uh.

They have the mistaken notion that some foreign occupation army is in charge of the government, that there is no voting allowed, and the redress of grievances is forbidden. They prefer to play the tired, old, discredited liberal victimhood game, and we're all invited to their pity party.

[EggsAckley]

What is illegal about a trailer on a wooded parcel is that it is illegal. County ordinance allows a construction trailer for one year during construction. He's been there nearly a year, and nothing has started. This area has a lot of million dollar properties, and having a trailer next door is not healthy for the property values. Whether you think that is right or wrong, it IS local law. And also, a lot of people are getting sick of driving by a funky trailer with blue tarps all over it, and sundry junk around it. It's an eyesore.

[bubbafree]

"I can't believe they will waste $500,000 out of my pocket plus the land which cost $240,000,"
Wait...they're CANADIAN DOLLARS, and let's see...um...er...it equals exactly $42.87 U.S.

[eagleye]

Let's put the shoe on the other foot for a minute. Suppose the government screwed up and broke the law by building a freeway too close to Mr. Bad'aan's $750,000 palace. I guarantee you that he would be raising hell and suing for damages, claiming that his property would thus be devalued. He can't have it both ways- the law is the law, and should be enforced.

[finnman69]

Houses are built everyday with known code violations. I would bet that it may be impossible to build a house without violating code, as several codes arguable contradict one another.

LOL, that has to be one of the most ignorant things I have ever see here at Free Republic. Obviously you don't have a clue what you are talking about.

Ok, your argument is like saying drivers speed everywhere so I might as well drive 100mph, and if I get pulled over, I should be lle go without a ticket.Why don't you try that strategy and get back to me.

I have worked on a total of approximately $100 million dollars worth of construction and I assure you we have had minimal problems, no code violations, and if we had, there is certainly nothing that we could not have fixed. On the other hand, if I had worked on a building and built it over a stretwall line, or built it too tall. The offending areas likely would not be greanted a variance, but we would have had to remove the areas. You apply for variances BEFORE construction is completed, not after.

Please answer me which building code rules force you to violate another building code or are unavoidable.............(sound of crickets chirping)

[jadimov]

.....County ordinance allows a construction trailer for one year during construction. He's been there nearly a year, and nothing has started. This area has a lot of million dollar properties, and having a trailer next door is not healthy for the property values. Whether you think that is right or wrong, it IS local law. And also, a lot of people are getting sick of driving by a funky trailer with blue tarps all over it, and sundry junk around it. It's an eyesore.....

Whoa fella. I was just asking. Has anyone checked to see if the trailer belongs to the owner and it's not just a squatter?

[jadimov]

.....Suppose the government screwed up and broke the law by building a freeway too close to Mr. Bad'aan's $750,000 palace. I guarantee you that he would be raising hell and suing for damages, claiming that his property would thus be devalued.....

Would a judge ever rule that that the government tear down the freeway to fix the situation?

[Always Right]

LOL, that has to be one of the most ignorant things I have ever see here at Free Republic. Obviously you don't have a clue what you are talking about.

That shows how much you know. You may be an architect who works on big projects, but you don't know crap about what goes on in everyday homebuilding. I build 30-40 houses per year. The problem with architects is they don't know what goes on in the real world. There are code violations in practically every house, and some would take some major bucks to fix to code.

[the bottle let me down]

Or more likely, the architect, who should be responsible for clearing zoning code

The story said that the real estate attorney missed a deed restriction. This probably wouldn't have shown up as a zoning matter. In any event, the homeowner will not be left without remedy. And it's in Canada, where (I think) they have loser pays, so if he has to sue, someone else will pay his attorney's fees.

[the bottle let me down]

So you want taxpayer money to pay for a private citizens screwup? Uh uh.

They'll just send the home owner the bill.

[Gaston]

I don't think you have to worry about trailers in an area where lots cost $240,000.

I live in Lake Wylie, South Carolina and yes there are lakefront lots that cost as much or more than that here with mobile homes on them.

[Gaston]

I build 30-40 houses per year. The problem with architects is they don't know what goes on in the real world. There are code violations in practically every house, and some would take some major bucks to fix to code.

Sir, I think you just admitted to having knowingly committed criminal acts. You need to be careful of what you post.

[JZoback]

how can they justify NOT making an exception for anyone else in the future?

It's called an exemption or a variance!

To save a man $500,000 and the cost of litigation to the city and the sheer stupidity of it.

[Bob J]

Having some experience in this area, I've seen developers ignore things like this in the hope that it is not discovered, and if it is, claim ignorance, arcane codes, victim status, etc., in the hope that they will get off with a fine. Anyone building next to any kind of government property has to really comb the codes and ask a lot of questions prior to building. Of course, he can always fall back on the fact that the plans were approved by county, but if it is federal land, he's responsible for his own due diligence.

[Bob J]

The founding fathers may have termed the Bill of Rights as "God Given", but the sad fact is any one of them could be taken away through actions of men in the form of amendments.

[Always Right]

Sir, I think you just admitted to having knowingly committed criminal acts. You need to be careful of what you post.

Code violations are not criminal acts.

[TheConservator]

Hey. I have a case involving this very issue going to trial in July. The defendant, who has built several houses before this one, built his very large and expensive home so that it encroached within a setback, knowing (I am reasonably sure I can show) full well what he was doing. He figured that no one would make him move the home once it had been built.

The law on this is pretty clear. If the judge finds he acted with knowledge that he was violating the setback, he will have to tear down the offending portion of the house. If the judge finds he violated the setback without fully realizing the facts, was somehow confused, etc, then he can make an "equitable order," i.e., not order him to tear down the house but impose other restrictions to mitigate the problems the violation of the setback has caused.

Well, we will see what the judge decides. . . .

[PeaceBeWithYou]

Ding ding ding....We have a winner. That's exactly the way you fight stupid laws, you force them to realize that they can't possibly regulate everything you can think up.

My first thought was that the road was built too close to his property. If the NCC is going to designate that you can't build x feet from the road then that x feet is the NCC's property not his.

He is due a refund on his purchase of the property and any taxes he has paid, in addition to whatever it cost to bring his house into compliance with the change in property lines.