Frannie's Response to Demo Order..its pure BS.

Response to HRM Demolition Report

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK ROAD Francesca Rogier, May 11,
2011

OVERVIEW I have reviewed the materials provided by HRM staff supporting a request for demolition of my home at the above address. With sincere apologies for the late timing, I wish to submit the following for consideration: I . The Reports submitted are intended to provide reasonable basis for a Committee decision regarding an order for immediate demolition. However, close review of the issues they raise suggests strongly that they stem in large part from the fact that the foundation hasn’t been completed. I intend to complete the basement in a timely manner, and thus eliminate these concerns. 1. Set down on a permanent foundation, the electrical, plumbing, and septic systems of the house would no longer be exposed; all standing water would be removed; and the area around the foundation would be drained and backfilled. The chimney would be stabilized, and the house would be permanently supported. The property would could easily be deemed safe for occupancy. This is my goal. 2. I am committed to making this house a home. It is an attractive Cape Cod, and it has a very good layout, a great view, and a great location. It has historic value to the community. I love living in it and intend to make it something to be admired. I have the skills needed to do it. I designed the foundation to be efficient and sturdy, with a useful basement and garage. I spent many hours of my time on this project and am prepared to spend many more. 3. All I am asking for is a fair chance to make it happen. My construction permit is valid until June 2012. If the Committee would grant me four months time to set the house down on a new foundation, the Halifax Regional Municipality can avoid having to demolish this Heritage property. For Heritage information, please see: http://www.historicplaces.ca/en/rep-reg/placelieu.aspx?id=8046 and https://eapps.ednet.ns.ca/HPIPublic/PropertyDisplay.aspx?Fid=23MNS5016 DELAY While it is always advisable and reasonable for work to proceed at a planned and purposeful pace, I never expected it to take this long to complete the foundation. It was delayed by unforeseen events. The house may show some added wear, but it remains intact: it is still a viable candidate for renovation. The plumbing, electrical, and sanitary systems are all functioning. 1. Regarding the initial reason for delay, the foundation work began in the summer of 2008 under a signed contract that included specifications, construction drawings, and an agreed finish date. The, abandoned the project after failing to meet the initial deadlines, and went out of business altogether. I could not find a replacement right away. Up until Easter, the weather did not provide ideal conditions for pouring and curing concrete. (I am not of the opinion that it is a good idea to use additives in the mix, and prefer warmer temperatures.) COMMITMENT TO PROCEED WITH WORK 2. I have invested approximately $35,000 to date toward the foundation alone, over and above the purchase price of this house and other upgrades and repairs. Custom wood windows and doors have been fabricated to match the existing ones lie in storage and await installation, thanks to help from the Heritage grant I received.

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

3 I am prepared at this time to move forward on the foundation with a local concrete contractor, Wayne Johnson, and a second contractor, Kirk Slade, has agreed to install the new windows, siding, and roof. I have others ready as needed. REQUEST I am seeking a reasonable amount of time to complete the major work of setting the house down and address concerns raised in the Reports.. If the Committee is amenable to four months, I would be very grateful. CONTENT OF REPORTS II. Having stated my goals and made a request for more time, I wish to address the contents of the Reports. I am greatly concerned because they appear to lack precision. They do not prioritize which of the issues raised constitute reasonable grounds for demolition, apart from issues that can, or could have been, confirmed and/or resolved prior to this date by municipal staff and the owner, or, for that matter, by completion of the foundation. I am very concerned that the Report creates a confusing and false impression of both the house and myself as its owner, occupant, and architect. It implies that I have been unresponsive and irresponsible without showing exactly how or why. It also lacks empirical information that could easily be obtained to allay speculative concerns that it raises, (many for the first time since the eviction, others since May 4). , I am more than committed to finishing construction properly and in a timely manner. I would ask the Committee to carefully review the Reports submitted by Ms. Phillips and Mr. Morgan accordingly. I am concerned that they do not bring forward information on file a reasonable person would find necessary to make an informed decision regarding demolition of my house. I have made a detailed response to the Reports to the best of my ability within the time allowed. I will attempt to follow-up with documentation here and in following submissions. I requested more time but was told it was not possible due to safety concerns- concerns which were never specifically articulated to me or ordered to be remedied, and, in my opinion, do not exist, but if they do, can be remedied by a completed foundation. III. Taking first Ms Phillip’s statement titled “DEMOLITION REPORT”, I note that the Property History in particular appears incomplete and because of this, casts the matter in an unfavorable light with regard to my actions as owner. 1. Of greatest concern in this regard is the statement ending: “…and the required work to make this building safe has not taken place since the Order to Vacate was issued on November 19, 2010.” The work referred to as “required” is not specified as to whether it was “required” before or after Nov. 19, or by whom. If the work recommended by my engineer as precautionary measures in October is meant, the fact is that this work was not made a requirement by either a municipal or a provincial official at any time. The Oct. 8 Order neglected to require any actual work other than the construction fence (which I erected; see below.) 2. No order to remedy specific conditions on the building or supports was issued at any time before or after the Order to Vacate or prior to the Notice to Appear.
RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11 p. 2

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

3. I believe there is genuine cause for concern that the Municipality may have therefore failed to meet its statutory obligations and is now acting unfairly and without legal authority by moving to order demolition without properly establishing grounds for such a decision. The owner should be told what needs to be done, given adequate time to carry out the work, and/or respond with an appeal. This is for the common good, as otherwise, demolitions would occur with alarming frequency and cause environmental problems 4. Statutes are typically organized in a way that implies a sequence of procedures to be followed. Sections 354 to 363 of the HRM Municipal Charter are titled “Part XV: Dangerous or Unsightly Premises”. After the requirement to maintain property and the authority to delegate are established, Section 356 clearly sets out the steps to be followed when a condition is in need of remedying: Order to remedy condition 356 (1) Where a property is dangerous or unsightly, the Council may order the owner to remedy the condition by removal, demolition or repair, specifying in the order what is required to be done. (2) An owner may appeal an order of the Administrator to the Council or to the committee to which the Council has delegated its authority within seven days after the order is made. (3) Where it is proposed to order demolition, before the order is made not less than seven days notice must be given to the owner specifying the date, time and place of the meeting at which the order will be considered and that the owner will be given the opportunity to appear and be heard before any order is made. (4) The notice may be served by being posted in a conspicuous place upon the property or may be served upon the owner. 2008, c. 39, s. 356. 5. The sequence indicates that the proper process is for the municipality to issue an Order to Remedy that specifies exactly what is to be done to comply with the Order – rather than, for instance, an engineer’s report to be paid for by the owner (whereas a request of this kind may be made by the Building Inspector, under the Building Code). 6. While I was never issued an order under section 356 prior to the Notice to Appear, I was evicted under Sections 359(1) and 360, yet applying those sections implies that the municipality had already evoked the preceding section. 7. With regard to the use of building inspector Michael Morgan’s reports as grounds for demolition, I refer to the decision in Sydney Precision Machining Ltd. v. Cape Breton (Regional Municipality), 2003: [24] The definition of “dangerous and unsightly” in section 3 of the Municipal Government Act does not say that a building is dangerous or unsightly if it fails to meet the standards of the National Building Code. The Municipal Government Act makes no reference whatsoever to the National Building Code. The National Building Code is a complex set of prescriptions adopted in Nova Scotia by regulations under the Building Code Act. 8. This Notice to Appear is pursuant to the Municipal Government Act /and the Charter. It has not been issued by the building inspector, who acts under provincial authority. In all instances where Mr. Morgan raises concerns about the building code – albeit without citing a violation – his

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

p. 3

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

power to enforce the code derives from the province, not the municipality. Therefore the municipality cannot transfer his authority to its own. 9. By reviewing the Orders from Oct. 8, Nov. 18, April 29, and May 4, the Council Committee members may easily confirm for themselves the lack of any notice of specific building code violations and that they contain no orders to remedy any violations or suspected violations with regard to the building (as opposed to the property).

10. For instance, none of these orders requires specific work on the house or supports in order to remove “unsafe” conditions on the structure. I was ordered to erect a construction fence, which I did by the Oct. 15, and Mr. Morgan inspected and passed on that day. At no time did Mr. Morgan inform me of specific ways that I failed to meet the Oct. 8 order. 11. Had I received specific Orders to secure the building itself in a specific way, I would have complied, as I have always complied in the past, and as it would have been in my interest to do so. 12. It is not clear to me why the Oct. 8 Order in particular did not require me to act on the recommendations of the engineer, as it would have been a logical step. There is no point in requiring me to obtain an engineer’s recommendations on securing the structure unless I am also required to follow them. The standard procedure is to require compliance with the engineer’s recommendations. 13. It is not clear whether “the required work” phrase above refers to the new construction, or to issues arising from the Oct. 8 Order. In any case, neither formed the basis of an Order requiring me to repair or remedy anything on the building or supports. 14. Elsewhere, the Demolition Report neglects to refer to or specify what work was required and thus presumably not completed. The pages preceding the above phrase make no reference to anything in this regard. Nor can I find specifics in the reports that follow, to the extent that demolition would seem necessary and advisable, against all other evidence and circumstances. 15. In Mr. Morgan’s reports, the only direct building code reference I find applies to the standards applicable to the completion of a permanent foundation (entered Nov. 17, email Nov. 25 eviction effectively obstructed for the remainder of 2011.) This is not a violation citation. And, rather than grounds for demolition, this should be considered a compelling argument for allowing me sufficient time to complete the foundation. a. With reference to the foundation, It was my goal to proceed last fall, and get the house down by Christmas. By August I had taken steps toward resuming foundation work by hiring an excavator to prep the area and updating drawings. My time and energy were abruptly diverted by the Oct. 8 order, and the eviction without notice prevented me altogether from resuming work, as I was confronted with nowhere to live. The locks on my house separated me from my home office, the use of my five-foot long drawing board, and needed tools and equipment I need, plus my fax, copier, scanner, internet service, and phone. The cost of moving these possessions and paying rent on a new residence was prohibitive.
p. 4

b.

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

16. I note that on p. 2 of Ms. Phillips’s letter, she states: “the essential work identified by the Engineer’s Report was not complete” suggesting this is a legitimate basis to claim the building is structurally unsound. 17. This misrepresents the Order and the situation entirely. First, the Order did not require me to complete any work recommended to by the engineer, and that it was recommended on a precautionary basis (not required). Secondly, contrary to the implication that I failed to comply with requirements, though not required to, I voluntarily acted on his recommendations for essential work on the temporary supports and provided documentation of it immediately. 18. Furthermore, a review of the documents shows that the engineer was never required to make a determination as to whether the work I did to follow his recommendations was “complete”. Therefore, Ms. Phillips’ statement is inaccurate and should not be taken as meaningful grounds for demolition. 19. The engineer Steve Brockman did not find the house to be structurally unsound, nor did he state in clear terms that the temporary supports were unsound as a whole. He did recommend that permanent construction start as soon as possible – and I was lining up a contractor to do this very thing (Scott Shearer) when the eviction was carried out. 20. Thus the Demolition Report fails to make it known that the Oct. 8 Order contains no requirement to do any work identified by the engineer, essential or otherwise, yet implies that this lack or failure exists and compliance was lacking. 21. Having omitted this reasonable and expected step to address unsafe conditions, the Oct. 8 called for me to vacate the premises by the 31st based on the existence of the presumed unsafe conditions – begging the question of why the engineer’s report was required in the first place. Mr. Morgan has never cited any Canadian, provincial, or municipal statute prohibiting a person from living in a house during this or any kind of work. 22. Therefore I carried out the recommended work voluntarily by Oct. 29, at an expense of close to $5,000. In doing so, I acted in good faith, believing that in the work would remove all doubt about the building’s safety in the inspector’s mind, and I would be able to continue living in my home safely, then move on to do the permanent foundation work. I was in the process of doing this when I was evicted on Nov. 19. 23. Again with regard to the damning statements in the Demolition Report, it neglects to mention further that on completion of work recommended by “my” engineer, I took the initiative to ask him to inspect it, which was not required by the Oct. 8 Order. As he was not able to visit the house before the Oct. 31 deadline, I provided full documentation via digital photos. He agreed to review them. Had further work been necessary to secure the building at that time, it was his duty to inform me (see correspondence attached Appendix A). He did not do so. His last communication referred only to moving ahead with the permanent foundation to please HRM 24. Mr. Morgan and Ms. Phillips are both well aware of these developments. Our correspondence is not mentioned in the report in full and I wonder if the Committee has access to it.

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

p. 5

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

25. After I complied with and exceeded the Order issued Oct. 8, Mr. Morgan continued to insist the “house was unsafe” but declined to state specifically how and why. When I evicted without notice, I specifically requested information from him and the by-law officials to tell me what they were finding unsafe, and offered to immediately address it. I made these requests by phone, in person, and in written form. (email) I directed them to Mr. Jeff Rogers, Mr. Scott Hill, Mr. Morgan, and others in the various HRM departments. I also consulted a second engineer to inspect the temporary supports. He did not advise any corrections or replacements, or deem the house itself to be unsound. In fact, he and I stood and talked at length beneath the house, and took measurements. 26. In response to my persistent questions of “What is unsafe?” and “How can I fix it?”, Mr. Rogers and Mr. Hill said I must ask Mr. Morgan. He in turn repeatedly declined to answer what was unsafe, by not responding to calls. a. In a Nov. 25 email, he cited the building code as a whole that would apply to the permanent new construction. He did not specify how existing conditions may have failed to meet the code, and then order them to be repaired. b. Though he had not apparently found specific conditions in violation and required them to be addressed, he nevertheless insisted that the house could not be occupied and that it had to be completely finished and inspected before it could be reoccupied, though he did not cite any statute that supported this, in the event all other conditions are otherwise satisfactory. 27. The Order to Remedy Dangerous Conditions issued April 29 by HRM by-law officials under Municipal statute required that I secure against public access to the property, not the building itself, nor that I carry out work on the latter. a. It has already been secured by a fence erected and locked by HRM. This fence replaced one that I had erected in compliance with the Oct. 8 order, which was passed by Mr. Morgan. I was not told why. b. This April 29 Order appears to have justified the boarding up of the windows on my house. However, no mention is made of the fact that the windows cannot be accessed without great effort and a very long ladder to reach them from the ground, sitting about 14 feet up. c. The subject of public access to the site is not directly related to the question of demolition, unless an owner refuses to carry out work to make a building safe. I have never refused. d. This April 29 Order has been presented as a “final step” leading up to the request for a Demolition Order. e. However, given its content, it is quite clearly not a part of a statutory sequence of undertakings intended to bring about compliance in a reasonable way.

28. It must be pointed out that the concluding statements in both Ms. Phillips’ and Mr. Morgan’s Reports fail to clearly distinguish my house from the temporary supports. Yet the request under consideration involves permanently demolishing the house along with the temporary supports, overriding the Heritage statutes necessary to process demolition requests. a. At no time has any engineer or other qualified expert or building official deemed the building – i.e., my house, a Heritage property – structurally unsound.
RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11 p. 6

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

b. As well, the requests calls for the new footings to be backfilled. Yet the footings have not been deemed structurally unsound. In fact, they passed inspection by Mr. Kevin Scudder. c. I have never encountered a case where temporary supports are given as a reason to permanently demolish a building. The appropriate thing to do would be to require – by order – specific work be done on the temporary supports, or, as I ask, to allow time to complete the permanent foundation. REPORTS BY BUILDING INSPECTOR: entries dated Oct. 7, Nov. 17, and March 4 As mentioned, I requested information as to what was deemed unsafe from Nov. 1 on. I pointed out that I dwelled in my house from the summer of 2008 to Nov. 19, 2011 unimpeded by building authorities. But at no time did any building official flatly state, as Mr. Morgan has done on occasion, that I cannot live in my house while it is being worked on, simply because it is being worked on. 1. These Reports and the specific statements in them were withheld from me until May 6, 2011. I now discover them to contain few if any genuine statements about safety concerns. A number of statements are either inconsistent with facts, misrepresentations, or exaggerations of fact, and thus can lead to false conclusions based on no evidence at all. There are a number of questions raised that could have been answered by direct communication with me, an inspection of the interior, or an empirical test, not to mention consulting a qualified professional. 2. Mr. Morgan’s report entries seem to say that the house cannot be lived in due to structural issues. But he has not based this directly on comments from my engineer - nor could he, as the engineer was not asked the question. Mr. Brockman has not addressed the structural concerns since before I installed extra supports in October 2010. Notwithstanding his remarks about installing a permanent foundation in 4-6 weeks (which were never updated following the added supports), Brockman’s reports cannot credibly be used to support any of Mr. Morgan’s claims regarding structural safety, in particular, the soundness of the cribbing and cables as grounds for demolition. Mr. Morgan does not cite a report made by any other engineer since Oct. 29 or specify himself at any time what is to be remedied. I would ask that the Committee keep in mind that, though empowered by statute, Morgan is not himself qualified to make such determinations. 3. Beyond statutory requirements of specificity, it would be improper to “attempt to combine a requirement to repair with a requirement to demolish,” as in (Sydney Precision Machining Ltd. v. Cape Breton (Regional Municipality) [2]. Thus, an owner cannot be given a conditional order to repair “or else” a building will be demolished. The owner has the right to appeal an order to remedy.

TIMELINE: 1. After Mr. Morgan appeared on Nov. 1, reviewed the temporary supports, and declined to evict me, I received no communication from him or HRM regarding my property. However, it appears the eviction on Nov. 19 was based on an inspection he did on the 17th without my knowledge. I find this confusing as well, as he was entitled to enforce an eviction under his provincial authority as of the Oct. 8 order, if he found cause in structural safety lacking. But he did not.

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

p. 7

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

2. The eviction was executed by the municipal by-law officials, who did not issue any prior order to remedy unsafe conditions. They thus circumvented the Charter section 356 available to them to issue an Order to Remedy, and moved immediately to sections 359 and 360, which are provisions to issue an “order to vacate unsafe property”, and to take “immediate action”. 3. Starting immediately after Nov. 19, I requested to appeal the eviction on several occasions. My requests were denied, though the legislation provides for appeals. My property suffered damage as a result of being unheated and unattended. I found it necessary to return on a few occasions to secure the property, make repairs, and, rescue my cat Amelia, who the officials apparently locked inside the house more than once. This did compromise the eviction order or public safety. 4. While details are scant on how the building might be structurally unsound, the Demolition Report goes on at length about alleged violations of the Order, in search of grounds for demolition. Officials have not charged me or anyone else with a violation of the eviction order, so legally speaking, these must remain at the level of allegations. Nevertheless, the Demolition Report construes these alleged “breaches” as grounds for demolition. Parallel to this, the same officials blocked my attempts to appeal the eviction so that no violations would be incurred. 5. The May 4 Report entries were written the same day as the Notice to Appear on May 12. They seem to repeat many comments from earlier reports verbatim without indicating them as such. The May 4 report also carries forward errors and misrepresentations, leaving key questions unanswered that could have been easily addressed to and answered by me or others. GROUNDS FOR ORDERING REPAIR/COMPLETION VS. GROUNDS FOR DEMOLITION 1. Again, I note that these Orders and Notice are in lieu of an Order to Remedy specific repair or remedial work, giving adequate time to carry it out, and a period for filing an appeal. 2. At no time was I given an order to complete the new foundation by a given deadline. I am not sure this is possible under the statute. My discussions with the HRM lawyer Andrea Jones-Rieksts indicated that the municipality would find it reasonable to wait for warmer weather. 3. As grounds for demolition, then, the Report offers mainly “breaches”, blanket statements that the house is structurally unsound, and some speculative comments. It does not offer empirical grounds (a recent structural report, photos, or environmental tests, etc.). Therefore, citing “breaches” as grounds for demolition seems frivolous at best. 4. I feel it is in the public interest to distinguish issues about safety and habitability from bona fide grounds to demolish a building. The former can be resolved by allowing an owner to complete a project as planned, without incurring the loss of a valued Heritage property.

SPECIFICS: Regrettably Morgan’s reports are not indexed, nor are the pages numbered. This makes it difficult for me to reference specific passages and entry dates. I do not have time to set up a system for this. I can only list the following, in somewhat random order.

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

p. 8

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

1. The engineering report by Steve Brockman referred to from March 2010 was written before cable tie-downs were installed. HRM by-law officer Scott Hill passed the cables after they were installed in June 2010. If Mr. Morgan deemed them inadequate on Nov. 17, as well as the pier or column below the kitchen, and was certain they were in immediate danger of collapse, it was his duty to inform me specifically, and allow me time to remedy the situation, before evicting me, let alone calling for demolition. 2. As it happens, five months later, the cables and the column remain, along with the rest of the supports and the house above. I note that Morgan’s May 4 report does not revisit the issue. 3. Brockman’s second report from Oct. 2010 was written before I acted upon the recommendations in it. It is a preliminary report, and it required a few corrections and clarifications, which followed in the course of subsequent correspondence between Mr. Brockman and myself (Appendix A). 4. Morgan was mistaken in stating that the water pump is powered by an extension cord. It has a easily recognizable direct line to a metal switchbox above it, protected inside a rated enclosure (metal). This is directly connected to the circuit panel (photo). The extension cord mentioned leads to a lamp. a. I was advised by Scott Hill on May 11 that the extension cord is not a building code violation. b. The lamp is not needed during the non-heating months 5. With regard to pipes and plumbing, contrary to statements in the Report, a. The plumbing system is working. b. The cold and hot water supply pipes underneath the house are wrapped and lined with heat tape to protect them against freezing. The heat tape lines are quite easily seen (photos). c. The pump is protected from the elements together with the water tank. d. The supply line to the well is exposed but the majority of the length consists of a pipe within a pipe, as is the norm. Where it is not a double pipe, it is insulated along its length. Any gaps in insulation can be repaired. 6. With regard to ground water and drainage: a. The excavation reached the water table, which is the reason for pools forming. b. The report neglects to cite any kind of empirical test results to substantiate concerns raised. c. Absent any findings of objectionable substances or smells, the growth of algae in the water draining from the water table appears fairly harmless. (photo) d. A perimeter drain around the footings, a floor drain, and a sump pump are items that have always been listed in the scope of work, specs, and construction plans. e. The driveway will be sloped to the southwest corner of the property, in line with the existing site contours, thus following the natural drainage patterns. 7. With regard to the septic system:

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

p. 9

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

10

a. The system itself is safeguarded. The tank sits securely a good distance away and above the water draining from the footings (photo). There is no standing water around it. The footings separate it from the ground water rising from the enclosed area. b. It appears to have been dry on all inspection dates including May 4, as no mention is made to the contrary. (see photos) c. Guy Pettipas emptied the whole tank in June 2008, so there is no danger of it overflowing. d. The Report suggests the septic tank and pipes from it are in danger. However, they are never really in danger of freezing, as warm gases from the effluent provide adequate protection. e. Bryan Perrier, an experienced excavating contractor, did work on the excavations last summer. He insured against any potential leakage by shoring up the tank and the area around it. HRM is aware this was done as I informed them in October. Mr. Perrier spoke with Mr. Morgan in person on Nov. 1. Mr. Morgan omitted this information from his report. f. Mr. Perrier also assisted in the installation of the extra structural supports, and assured Mr. Morgan he had no concerns about working under the house before or after that work was done. 8. Also in terms of proximity to public uses, the plan provided in the report is very misleading. It appears to show three objects labeled “Nathan Smith Recreation Center” behind and south of my home. The aerial photograph and the site plan will confirm that: a. There are no structures or indoor public facilities at these locations, or anywhere near them. b. The clubhouse for the baseball field is the only indoor facility in the area, and it stands at a significant distance from my home. c. The basketball court has no indoor facility, and it is separated from my land by a drainage culvert that passes under East Chezzetcook Road and is sloped toward the overgrown pond on the Nathan Smith park property. 9. The degree to which the plans and the report misrepresent distances and proximities is alarming. A glance at an accurate plan or an aerial photograph will allay any fears of threats to public safety. a. The distance from my house to the inlet: thousands of feet, possibly two football fields. From my house to the clubhouse in Nathan Smith Park – easily a football field. b. From my house to the road easement: about 43 feet. The corner of the house closest to the road (northeast corner) is 62 feet from the centerline of the roadway. c. The southwest area referred to in the report is located significantly further from the street, between 80 and 100 feet total down the slope. 10. I note, however, that the report neglects to firmly identify bona fide threats to public safety with regard to drainage, sewage, and the like. 11. With regard to the debris at the rear of the property: a. Please note that the issue of debris is not pertinent to the request to order demolition.

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

p. 10

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

11

b. Note also that if the adjacent area belongs to HRM – something I cannot determine accurately under the circumstances - the public has no reason to access HRM property adjacent to this area. It is not an area one can easily walk through. (see survey map) c. The material is there because it was my intention to re-use construction material from the original house as much as possible. d. The dismantled ductwork is made of galvanized metal, as all ductwork is required to be rustproof/moisture proof to avoid mold. Had a photo been provided, it would show that there is no rust on these components. I intended to recycle the ductwork as far as possible in the new heat pump system, to cut down on waste and economize on cost. e. There are no toxic materials there. The report does not identify toxic materials or emissions in this area. f. The report does not appear raise issues of unsightliness in regard to the debris and I have never been ordered to remedy it. g. It seems reasonable to dispose of this material in a timely manner once construction is complete, unless ordered to do so earlier. 12. With regard to what the construction permit covers: a. Again, this does not really belong in this report as it is not related to the question of the house being structurally unsound as grounds for demolition is necessary. There are different procedures in place to address this issue. b. Secondly, the report is not accurate on the permits, or my plans to repair the roof. Regrettably, this is an example of where Morgan has omitted key information from the file. This is very troubling, as Ms. Phillips’ relies on his reports for her Demolition Report. c. I duly obtained a separate permit for the exterior work referred to in the report (roof, siding), prior to applying for a matching Heritage grant in 2009. That permit would have run out this past March. d. I was required to obtain the roof and siding permit along with two bids for the work when submitting the Heritage application. My awareness of the work needed and my intent to undertake are thus well-documented. e. When I renewed the permit and paid the fee for the foundation in spring 2010, Mr. Scudder and the building permit department said it would apply to all the work planned, rather than issue two new permits. Again, HRM staff is in possession of this information. It should have been mentioned in the report and made available to the Committee, along with correspondence and the engineer’s report. 13. With regard to the siding and roof: a. The old wood siding has been exposed to the elements much longer than planned. When the vinyl was removed, I anticipated completion of the entire project within four months, maximum. b. In terms of potential moisture, rot, or mold, it is more advantageous to remove the vinyl siding to provide more ventilation to the layers enclosing the house. The vinyl siding trapped moisture for years, which damaged the wood beneath. c. During its removal, we found rotted posts below the kitchen window. The contractor cut the rotted segments, replaced them with a 2x6 grid, and covered the area with the

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

p. 11

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

12

d. e.

f. g.

h.

building membrane. All around HRM, I have seen houses sitting for years entirely covered in this membrane. The wall will be clad with cedar shingles acc. to code when the foundation is completed and backfilled, as stated in the scope of work and the Heritage application. The growth of mold on the roof shingles has been slow and is kept in check by heating the house –compare to the neighboring abandoned house. Because the officials who evicted me shut off the heat, this may have led to increased mold. However, there are no leaks in the upstairs rooms Sagging is not necessarily an indication of imminent failure. Many, many houses in the area have sagging roofs. The report lacked a structural report showing whether the roof is in immediate danger, and I have not been asked to commission such a report. The roof is part of the planned renovations and will be replaced to meet code, as indicated in the Heritage application. I look forward to having it completed by Kirk Slade.

14. With regard to temporary supports: a. These offer the greatest flexibility in terms of options to remedy unsafe conditions. b. The chimney is held by a separate steel section. Apparently this has raised no concerns. c. The supports can and will be relocated during construction to free up the footings for pouring the walls. d. The Report does not mention that there is a pair of steel jackposts on the footings adjacent to the new (as of October) northeast cribbing pier. To my recollection, they were not recommended by the engineer and are there purely a precaution. They can take the load distributed to them as needed. e. It appears steel beams were never an issue, as the report confirms by not questioning their placement or number. There are two 1 foot deep long beams and five cross-beams. Rust is not likely to cause failure in the foreseeable future. f. Similarly, the steel jackpost adjacent to the newly installed northeast pier was installed as a precaution. I have a fourth jackpost that can be paired with it if requested. g. While Mr. Morgan claims the jackposts are installed improperly, I can only say that they were installed as directed by the packaging. I do not know any other way to do it. No contractor has commented to this effect. h. Mr. Morgan certainly had a legal responsibility to inform me if they were creating an unsafe condition, I hope that he will now advise me accordingly so that I can correct the situation immediately that he perceives. 15. It should be kept in mind when reviewing all comments on the temporary supports by Mr. Morgan, that at no time before or after Oct. 8 did he actually order me to supplement, move, or replace them. His Oct. 8 Order omits any “order to remedy” an unsafe condition on the house or its support system, in specific or general terms. For instance, he could have included a order to follow the engineer’s recommendations by a certain date, and made the order to vacate conditional upon doing so. This is the typical procedure. He never made such a provision or explained why he did not. 16. Similarly, all subsequent Orders lacked specific requirements to remedy specific structural conditions – or any other condition raised, contrary to the impression created by the Reports.

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

p. 12

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

13

Despite this glaring omission, the officials moved to evict me without notice as an emergency measure. I feel it important for the common good to point out that this overstepping of procedure raises serious concerns in terms of procedural fairness towards myself as a property owner. Above and beyond this, the omission of an order to remedy specific issues with specific remedies ought to be of concern to this Committee vis a vis the duties and responsibilities of the both the by-law officials and building inspectors to property owners and the public at large, as, had an unsafe condition existed between Oct. 31 and Nov. 19, people might have been harmed 17. I must stress again in this regard that I voluntarily carried out the additional work to the temporary after complying with the Oct. 8 Order by Mr. Morgan to obtain the engineer report of Oct. 20. a. The materials and labor cost me close to $5,000 which would be better spent on the concrete. b. It was completed by Oct. 29. I provided photos to Mr. Brockman at his request. He did not respond with any further recommendations. (see below) 18. Around the same time, I met and negotiated with contractors for completion of the foundations. Scott Shearer, a contractor in the valley area, was interested, and I prepared a scope of work for him. I provided it to Mr. Morgan on or around Oct. 15. Mr. Morgan spoke to the former by phone. Up to and after Christmas, however, Mr. Shearer was still occupied with an ongoing project. He was not able to start work right away, and by then it was too cold for pouring concrete properly for this project. Nevertheless, in response to the promptings of HRM officials, I continued on and interviewed two other contractors in December (StevieCrete and Treviso). Both were interested in doing the job. Again, with the weather dipping below acceptable temperatures (and roads closed to trucks), I could not proceed. Also, any and all communication and work was impeded greatly by the lack of an office at my disposal. I was also no longer on site to be able to supervise work, which is absolutely necessary for this project. I was no longer in the immediate area at all and this was an enormous impediment all around. These were all huge obstacles to the project. 19. To return to the Report’s comments on these temporary supports: a. The older piers adjacent to new were simply left in place because there was no need to remove them at the time. b. The concern raised that some columns and piers are now resting on the footings – which are 24 inches wide in preparation for 10-inch wide foundation walls - is not relevant to the issue of demolition. They can be moved to clear the footings. The contractor will either install adjacent cribbing or pour a few pads for steel columns to transfer the load. c. With regard I must also state – and I am sure I stated this in my communication to Mr. Morgan if not also to Ms. Phillips, Mr. Hill, Mr. Rogers, and probably also the mayor – I was willing and able to add more supports on request. This would include lateral bracing or any other item. i. On Nov. 1, with Mr. Perrier close at hand, I showed Mr. Morgan the extra cribbing and jackposts I had on hand. I offered to add them to the support system. Yet he continued to say the house was unsafe. I made the same offer to Mr. Rogers on Nov 19 when he brought the RCMP to my house and evicted me. Neither of them asked me to install extra cribbing or an extra column. Yet the report raises alarms about the piers and the jackposts. Why did these men not simply issue me an order or instruction to add or
RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11 p. 13

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

14

d.

e.

f. g.

relocate supports? Clearly, there was no need to go the drastic step of eviction and demolition when an owner has already been compliant to date with every Order, and is prepared and willing to take steps to insure safety going forward. ii. I similarly pointed out the extra support material to Mr. Rogers the morning he evicted me on Nov. 19 and offered to install them wherever he required. He did not respond and evicted me. Further, I must note that over time, a number of contractors have visited the site as it stands – before and after the added/replaced supports – and not one of them has ever shown any reluctance to stand underneath the house. Nor has any HRM building official. To my knowledge, the phrase “practical life expectancy” refers to usage, not structural integrity. If it did, I dare say my entire post and beam house would have collapsed long ago. The new cribbing piers have been in place only six months. If it were true that wood cribbing is in danger of immediate collapse now or at any time in the past, Mr. Morgan had the duty to specifically require that I take step to replace them or add them. At one point he declares the cribbing a public safety hazard.

20. With regard to the existing floor structure: a. I am fully aware that the existing (historic) joists are not spaced properly. Since the very beginning of this project, as my drawings and sketches indicate, I have been planning to reinforce the floor support system with additional 2x8 joists throughout, in between the existing joists, which are large, but spaced too widely, especially in the living room. I also planned a new cross-beam to support the living room. I have a framing plan that indicates this. I would have prepared a graphic version of it for this hearing, but I have nowhere to set up my drawing board because I was evicted. b. However, this work is itemized in the specs I drew up for the original foundation contractor and was part of his Scope of Work. They are now part of the Scope of Work moving forward. c. I mentioned this to various HRM officials along the way. d. I provided Mr. Morgan a “scope of work” on October 15, which included these items. e. As a provincially empowered building inspector, Mr. Morgan may withhold an occupancy permit on these issues, but to my knowledge, they are not grounds for a municipality to order demolition. (This applies to much of the above and below.) f. Nor, as the courts have found, can a municipality combine an requirement to repair with an requirement to demolish. 21. With regard to the chimney, at several junctures the report suggests that it might be a concern going forward. This therefore does not appear to be a significant reason for demolition. Please note: a. I have never indicated that I plan to re-use the chimney as is, nor has anyone ever asked me. b. I removed a Franklin stove from the house right after I moved in, because it did not meet the fire code. Similarly, I removed a pot belly wood stove from the kitchen for the same reason. I note that it shared a flue with the oil furnace (for decades). c. The chimney is part of the appearance of the house and its removal would require approval from the Heritage advisory board.
RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11 p. 14

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

15

d. I have designed a new fireplace for the living room and hope to someday revive the chimney, most likely by installing a properly rated flue insert. The heat pump will be the primary source of heat, but a centrally located fireplace is a good supplemental source. 22. In the Oct. 7 report, heating, water supply, and sanitation are referred to under “Public Safety” and the house is deemed unfit for habitation due to lack of potable water and heat. a. To my knowledge, municipal officials have never conducted an interior inspection prior to requesting demolition. No reports are provided. b. All systems are functioning. I have adequate heat and water, and have had at all times while living in the house. I replaced the old oil-fired water heater with an electric heater in 2006. c. The above statement thus has no value, especially absent any evidence of an inspection, and findings that somehow make a remedy impossible. All services are easily remedied in such a small house. d. I checked the installations below the house and repaired leaks after the winter ended. I repaired the vandalized water heater. I secured the pump. e. The use of an electric oven is not identified as a code violation. Nor is it grounds for demolition. f. Electric heaters are commonly used without violating building codes. g. All other statements on habitability contained these reports are not reliable as they do not provide proof of inspections. They are also not grounds for demolition. 23. Mr. Morgan states in his unnumbered Nov. 17 report: “The building is not structurally sound due to the lack of a foundation in accordance with Part 9 of the National Building Code and due to the requirements and limitations set by the owner’s professional engineer.” My response: a. Part 9 applies to code on the construction of foundations. Morgan’s statement would imply that at no time are temporary supports sufficient structural support for a building. But if a building is under a construction permit for a new foundation, obviously the code requiring a permanent foundation in Part 9 cannot be complied with at all times, as it is not logically possible for a building to have a permanent foundation while one is being built. b. The lack of a permanent foundation alone is thus not indication of a building being structurally unsound, to the extent that demolition is necessary. c. A temporary structure can and will provide adequate support to ensure safe occupancy during construction. And it has done, in my case, for over two years without raising legitimate concerns that would support eviction and demolition. d. With regard to “my” engineer, please note again that Mr. Morgan is basing this statement on two letters from my engineer that were written prior to work done in each case, one from March 2010, before I installed lateral bracing at his recommendation, which was approved; the second written Oct. 20, before I installed additional temporary supports, which were documented. e. And again, I must point out that neither Mr. Morgan nor anyone else ever ordered me to meet the requirements and limitations set by any engineer that he refers to here. I did so voluntarily. f. I have shown that I am prepared to reinforce the supports as required upon request.

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

p. 15

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

16

g. I want to complete a permanent foundation. I have already spent $35,000 towards this goal, have footings in place, and therefore have every incentive and every right to finish it. 24. Mr. Morgan’s final comment dated May 4 is: “Structure as-is is not designed to provide habitation on an ongoing basis and is likely destined for structural failure.” a. What is meant by “structure”? If Mr. Morgan means the temporary supports, I assure the Council that there are in fact more supports than necessary; the steel will not rust to the point of failure for along time; the cribbing is not going to disintegrate. The building continues to be supported contrary to the men’s fears. It has withstood several hurricanes prior to the addition of supports last fall. b. However, if Mr. Morgan wishes, I will gladly add more. c. If “structure” refers to the building, the fact is that that this is a house. It was designed for living on an ongoing basis. It has served as a dwelling since the 19th century. d. “Likely destined for structural failure” might seem a strong statement at first, but it again is not substantiated by statements preceding it to identify specific structural issues. e. Nor is this a reason for demolishing a building owned by someone who is prepared to renovate it. 25. Finally: on further analysis of his statement, it emerges that the Building Inspector, Michael Morgan, is not recommending demolition. a. In his May 4 report he states, “The structure is not designed to provide habitation on an on-going basis and is destined for structural failure.” <----------- Is destined -- not imminent b. To protect the life safety of persons entering on this property, I recommend that the building is vacated and secured from any occupancy. <----------- completed c. To protect the life safety of persons entering on this property, I recommend that the property is secured with a construction fence that complies with National Building Code. <----------- completed d. Failure to install a foundation and all related columns and beams required to support the dwelling will result in a structural failure of this building.” <---- thus, a foundation is an appropriate remedy in his opinion. 26. Mr. Morgan is not saying that my house has passed the tipping point of salvageability. He appears to find that if a foundation is not installed, the structure will fail - eventually. He is not stipulating as to when this might happen. That suggests there is time to install a foundation and all required columns and beams. Therefore, demolition is not recommended or necessary in the opinion of the building inspector. 27. I have contacted Mr. Brockman to notify him of this request to demolish and forwarded him the Report. He replied that he was not aware of the request, and that “The best step would be proposal of a well defined plan to complete the construction.” (Appendix E) 28. The foundation is weeks away from completion. I am providing a plan to complete the foundation. I wish to assure the Committee that my professional background is such that I am cognizant of, and in favor of, all permitting and code requirements, and I take care to comply with them and all requirements and requests made by the building authorities. I have complied with all requests to date, in timely manner and as completely as possible.
RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11 p. 16

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

17

29. I regret that the hearing date was within just one week of the Notice to Appear. This did not permit adequate time to organize and provide documentation in full on all points raised, yet this is necessary given the decision at hand. 30. Though the HRM staff have a good deal of this material on file, they have not presented it. I will do my best to locate it and reproduce it in time for the hearing. 31. I note with great alarm that there is no report or statement prepared by the Heritage authorities. I understand they will attend the hearing. 32. In that regard, I note that p. 4 of the Demolition Report does not make an overall statement on why this particular Heritage property can be sacrificed. 33. The Demolition Report goes on to offer statutes indicating that the requirements and procedures stated by Heritage law with regard to demolition requests may be superseded if – and apparently only if - there are violations of the building code or regulations. a. Again I note that the building inspector’s Reports do not cite specific building code violations that were issued to me, nor has he issued any to date. b. If code violations are now present, they are not known to me. c. At this date, references to earlier reports by the engineer cannot be said to constitute violations absent an updated report; nor do present allegations of non-compliance with earlier Orders constitute building code violations. d. Violations must be addressed in a timely manner with time allowed to remedy them, prior to requesting demolition, as legislation and procedure require. e. Thus, as I do not find specific code violations in the Reports, it is reasonable to assume that demolition requests must comply with the Heritage Act and the Heritage department should be consulted on the proper procedure to follow. f. The consideration given in the Reports to the building, independently of the temporary supports was incomplete and not up to date with regard to services and work required and planned. I attempted to correct this in the above statements. g. Again, the HRM officials have also not issued specific Orders to Remedy that relate to the concerns raised in these reports. 34. Notwithstanding the above, it seems quite clear that any and all reasonable concerns raised can be eliminated by the completion of a foundation. 35. In Sydney Precision Machining Ltd. v. Cape Breton (Regional Municipality), the Court noted that a municipality has an “Obligation of Strict Compliance with Statutory Requirements”: “It is settled law that legislation like the dangerous or unsightly premises provisions of the Municipal Government Act should be strictly interpreted. The legislation confers drastic powers to affect individuals’ property. Courts have repeatedly held that there must be strict and formal compliance with statutory requirements. As stated in Rogers, The Law of Canadian Municipal Corporations (2d ed.), Vol. 1 at 488.6, “Where a local authority is vested with power to order the destruction of property which may be a nuisance..., the power must be exercised strictly in compliance with the statute.” [30]
RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11 p. 17

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

18

Accordingly, In Riopelle v. City of Montreal (1911), 44 S.C.R. 579, “the Court held that the municipality acted unlawfully in demolishing a building without first giving the owner clear notice of the specific defects that he was required to remedy.” [31] In my case, drastic action was taken on two occasions, i.e., in advance of the Order to Vacate, as well as the Notice to Appear, without issuing notice of specific defects to remedy. Reports that have been copied to me after the commencement of this application fail to comply with the legislation. “Unless they establish that they have strictly complied with statutory prerequisites, municipalities are not entitled to use powers such as those conferred by Part XV of the Municipal Government Act. For example, both in Saint John (City of) v. Burke and Carpenter reflex, (1986), 68 N.B.R. (2d) 348 at 354-356 (Q.B.), and in Mount Pearl (City) v. East Coast Fleet Repair Ltd. reflex, (1990), 86 Nfld. & P.E.I.R. 57 at 60-63 (Nfld. T.D.), municipalities that had failed to give notice with the specification required by statute were held to be precluded from proceeding.” [32] 36. In the period leading up to the demolition request, I was never given an Order to Remedy under Section 356 of the Charter that could have either been complied with or appealed. Prior to this period, I complied fully with an Order to Remedy in the spring of 2010, mention of which is omitted in the Report. 37. After a series of unavoidable delays beyond my control, I have demonstrated my commitment to complete this project. I feel my cooperation and voluntary response to the engineer’s recommendations should be given greater weight than allegations of violations of an Order to Vacate. 38. The temporary supports should not be confused with the house itself; the same is true of all issues not directly related to it. 39. I lived in Berlin during the ten years following the fall of the Wall, when scores of buildings – many “loaded” with unpleasant collective memory - were considered for demolition. I participated in the debates on a daily basis and wrote about some of them. I have always felt that it is important to base any decision regarding demolition on a complete and objective assessment of the building and the feasibility of restoration/repair and further use, in order to avoid the appearance of an arbitrary and punitive measure – against those who previously used it. Here, I feel that a decision to demolish risks the appearance of a punitive measure against a single individual who has ongoing differences with the municipality on a separate matter. 40. Therefore, if it is determined that restoration and repair are indeed feasible, I sincerely appeal to the Committee to conclude that the best course of action to address the concerns raised is not demolition, but to allow me to complete the work already begun on the permanent foundation. 41. As I am happy to report that I seem to have finally found the right contractor for this project in the person of Mr. Wayne Johnson, I respectfully ask that the Committee grant him and his associates

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

p. 18

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

19

a period of maximum four months to move forward with the work needed in compliance with applicable statutes. Thank you for your consideration. Respectfully, Francesca Rogier

Attachments: Appendix A, Scope of Work / Schedule 2011 Appendix B, Photos of house and surroundings (at hearing) Appendix C, Work completed to date Appendix D, Sample drawings (hearing) Appendix E, Correspondence with M. Morgan Appendix F, Correspondence with S. Brockman

RESPONSE TO HRM REPORT ON DEMOLITION OF 782 EAST CHEZZETCOOK RD 5/10/11

p. 19