Dispute between land owner and RM continues

The dispute between a land owner and the Rural Municipality of Big River remains unsettled. Dana Pettigrew, who owns property at Michel’s Beach on Delaronde Lake, was looking for a permit to build a garage in May, 2019 and the matter appeared before a Judge in Saskatoon in early March.

The leave to appeal was filed by the R.M. On January 15, 2020. The leave to appeal sees the RM and Pettigrew appearing before a judge so the RM can ask for the right to appeal a decision by the Saskatchewan Municipal Board Assessment Committee.

According to Pettigrew, the COVID-19 pandemic shutting down court proceedings has delayed the ruling.

The RM won’t hear from Pettigrew until after the completion of the leave of appeal.

“We have now gotten a note from the appeal board and the RM went to court to I guess they asked as a leave to appeal which when I went to the court the judge explained that the leave to appeal is just really asking for permission to appeal. So he is not going through any facts of the case and just ruled on whether I had the right to appeal,” Pettigrew said.

On May 22, Pettigrew sent an email which also included residents in Michels’ Beach, Stone Ridge, Ivory Drive, and South Stoney which officially requested the RM revise their SBE survey reference for building permits to more accurately comply with the Municipal Act. The email stated that under the Act, the RM council is bound to any official community plan. He explained in the email that “Since this issue is prevalent in all the subdivisions within the RM of Big River, that have a SBE (Safe Building Elevation) requirement as part of a building permit, I wonder if it is also prevalent in all of the RM’s across Saskatchewan.”

He further asked if the Saskatchewan Land Surveyers SBE reference affidavits were valid if they were not based on proper “official” surveyor bench mark for that subdivision.

“I outlined what they needed to do in the email. At the time they needed to go to a two-stage permit and they didn’t and even now they continue to acknowledge what they are doing is wrong,” Pettigrew said.

According to Pettigrew, the RM should immediately correct the root cause of the elevation discrepancy the RM directly caused.

Pettigrew alleges that the RM is not following official subdivision documents and the affidavit’s are therefore false.

“It might also be something that is done in numerous RMs because they don’t seem to know that you just can’t give an elevation based on a standard benchmark because for whatever reason surveyors are changing benchmarks and I guess they have their own reasons for it. But when you have an official safe building elevation with a document and it is dated back to 1980s or even earlier you have to be consistent with those elevations for what you are doing,” Pettigrew said.

After sending the email, several residents of the areas sent follow-up emails of support.

Pettigrew is a retired Alberta provincial certified professional technical engineer and understood what was needed to construct above a flood plain.

The application was made on May 7, 2019 for the garage adjacent, approved initially on the foundation for the garage subject to conditions including an elevation of 495.5 meters above sea level based on the 1998 Sask Water Report for Michel’s Beach on Delaronde Lake. The Pettigrews then applied for a permit to build the garage on or about June 26, 2019 which was denied.

Pettigrew explained that the whole process has been educational.

‘If I knew last year what I know now I wouldn’t have argued all of the wet sod proofing to be legal which the RM didn’t understand. Which is why I plainly argued the elevation discrepancy for that. So it is the things you learn as you go along to what their legal commitments are and they are not following through with them,” he said.

The Development Officer for the RM issued an order on July 10 the order claimed that the garage and foundation contravened subsection 62 (1) and section 243 of the Planning and Development Act because the foundation had not been constructed to the safe building elevation and that construction had commenced without a development permit. The Pettigrews were ordered to remove all above-foundation construction and flood-proof the foundation up to the elevation of 495.5 meters.

Pettigrew thought that his stamp, even though it is from Alberta, would be good enough but Big River still rejected his two permits. Pettigrew went to Prakash Consulting in Prince Albert and had Martin Kiffiak explain dry and wet floodproofing and residential accessory building floodproofing.

Later he took the letter to the RM from Kiffiak that stated the construction was fine . He explained that Big River ignored the letter. The Pettigrews filed an appeal with the RM’s Development Appeals Board on July 24, 2019 seeking to overturn the July 10 order and reverse the denial of the above-foundation construction.

The board dismissed the appeal because they considered the evidence that the foundation was flood-proofed to the correct levels as irrelevant because their bylaw does not distinguish between wet and dry flood-proofing. The Board also found that the foundation contravened the bylaw because it did not meet the estimated safe building elevation. The Board also found that the appeal did not meet the criteria in the subsection of the act relating to determining the validity of an appeal and could not proceed. The Board also found that allowing the development to proceed would grant them a special privilege, be inconsistent with the bylaw and negatively affect neighbouring properties.

The appeal appeared before the Saskatchewan Municipal Board Assessment Committee on November 22, 2019.

The Committee found that the Board made a mistake in dismissing the Pettigrews’ appeal. They found that the Pettigrews did present proof of adequate flood-proofing to the required levels. As well, if the project violated the bylaw the Board should have still allowed the appeal to go forward because they met the criteria for an appeal.

According to Pettigrew during the time of the dispute 780 pages of documents were exchanged. These included a surveryor’s plot map which agrees to his elevation.