By Sarah Payne The Tri-City News
Jul 25 2007
Willie Martin hopes she and her neighbours can just move on now that the courts have quashed the statutory building scheme on San Remo Drive.
In his written decision, released Friday, B.C. Supreme Court Justice Crawford said that “1970 restrictions on exterior appearance no longer have sensible application to 30-year-old houses” in the Port Moody enclave and, “I am satisfied that the building scheme has become obsolete.”
The San Remo saga started in 2005, when resident Marcus Clark got a permit to make some structural changes to his home, which had been badly damaged by rain, wood rot and mould, and when Martin painted her house beige instead of the standard white.
But the seeds of this neighbourhood conflict were sown in 1976, when the developer entered into a land use contract (LUC) with the city as well as in 1978, when the building scheme — a private agreement between the homeowners — was registered.
The contracts (including a second LUC adopted in 1989 that applied to 20 of the 40 homes) essentially governed the exterior appearance of the buildings, from balcony railings to windows to paint colours, among other things.
What the contracts didn’t consider, however, was that the developer’s “California character” design and materials failed to account for B.C. weather.
“It may be shortly said that on all of the evidence, it is plain that preserving the design against water entry requires meticulous upkeep, otherwise water enters and the wood [rots],” the judge wrote.
And so over the years, many homeowners defied the building scheme and the LUCs, and made changes.
The respondents in the lawsuit, including Clark, Martin and others, documented and photographed an extensive list of changes to balconies, garage doors, exterior walls, railings, roofing materials, light fixtures and more. But they also noted numerous changes to the exterior of several homes of the suit’s petitioners, the very people who were arguing for a strict adherence to the building scheme.
(Crawford was not considering the LUCs, which are part of the city’s bylaws.)
“[The petitioners] have made changes to their buildings and it appears the building scheme has been honoured more in its breach than its adherence,” Crawford wrote. “I direct that the statutory building scheme... be cancelled.”
“I’m thrilled beyond belief, it hasn’t even really sunk in yet,” Martin said this week. “I’m hoping it’s the end of the issue and we can go on with making this a fabulous street to live on.”
She added the real victory was the judge’s recognition that the building scheme prevented homeowners from addressing structural and design problems that were causing major damage.
Don Bertamini, one of the petitioners, said he was “somewhat disappointed” but respected the judge’s decision. He said there are no plans to pursue an appeal at this point.