Retaining wall battle headed for legal arena
City seeks court order banning occupancy of home until deficiencies are addressed
A long-running battle over a retaining wall behind a home on Three Mile Road escalated Monday with the City of Penticton seeking a court order that would in part ban anyone from going on the property until alleged safety deficiencies are fixed.
The lawsuit alleges owner Linda Laturnus ran afoul of local bylaws at 890 Three Mile Rd. by excavating in her backyard without permits, undermining an existing retaining wall and putting up another that doesn’t conform to building codes.
The city is seeking a total of 12 orders, including forcing Laturnus to repair the alleged damage to the satisfaction of an engineer and having Laturnus and others “enjoined and restrained from occupying the residence” until the work is done.
“The city has no intention of evicting Ms. Laturnus,” city lawyer Erik Lund said in an interview Wednesday. “That would only be a matter of extreme last resort. I just don’t see us going down that road.”
The lawsuit cites an engineer’s report and states the property is located in a “red zone” bordered by steep and potentially unstable clay banks that could slip as a result of the work below.
Besides the issues with the retaining walls, the city is also seeking action on four other building permits that were issued for the property between 1995 and 2004, before Laturnus bought it.
Final sign-off was never obtained from the city, the lawsuit states, so they have been cancelled, and as a result the home’s occupancy permit has also been pulled.
Laturnus’s lawyer, Michael Welsh, disputes the city’s allegations and believes the municipality itself is at fault for some of the problems.
“We view any claim by the city that enjoins her from occupying her property to be unfair and to arise from a certain lack of action by the city itself to do the prerequisites for the occupancy permit decades ago,” Welsh said.
He added the city is “at least partly at fault” for not getting the necessary conditions on the title in the 1990s.
“My client has nothing to do with this and it smacks of persecution,” Welsh said. “This whole proceeding is contrary to the provisions of the Community Charter of B.C.”
Lund said the city is hoping for a resolution that would balance safety and cost for all involved.
“The city has tried to work with Ms. Laturnus over a number of years, and it’s only as a last resort that the city wants to incur the expense of bringing out an application for injunctive relief in Supreme Court,” Lund said.
“The desire of the City of Penticton is to obtain a court order that essentially will compel Ms. Laturnus to bring her property into conformance with the operative building bylaw and the B.C. Community Charter.”
The matter is set to go before a judge in early March.
Legal action was authorized by city council at its Oct. 3, 2017, meeting.
At that hearing, Richard Giles, who described himself as a tenant of the property speaking on behalf of the owner, said three freedom of information requests regarding the matter went unanswered by the city, as well as a letter to Mayor Andrew Jakubeit.
“You’re not getting the full picture,” Giles told council.
“Nobody is more relieved to see this taken out of the hands of city staff and into the courts than I am. Now maybe some reasonable people can take a look at it.”