-Second decision against Town in three months-
OSOYOOS TIMES-August 13, 2008-
By Paul EverestrnOsoyoos Times
A small claims court judge has ordered the Town of Osoyoos to pay nearly $5,200 to two residents of the Desert Rose Estates strata park who sued the Town over a bylaw dispute.
Dan Ferguson and Dianne Macaulay filed a lawsuit in December 2006 arguing that the Town was negligent in the enforcement of their bylaws regarding what types of homes could be placed at the park.
In May 2006, Ferguson applied to the Town for a permit to place a mobile home on a lot he had purchased at the park and was denied his request.
Prior to that point, the Town had allowed 18 mobile homes, defined as residences that can be moved, to be placed at the park, even though the park had been zoned for modular homes, which are defined as fixed residences.
According to court documents, Ferguson was unaware at the time of his application that Neil Pagett, who became the Town's new building inspector in May 2006, had sent a letter to strata council members at the park advising them that the Town had approved the placement of mobile homes in the park in contradiction of our Zoning Bylaw requirements.rnAnd Pagett had denied an application to place another mobile home in the park prior to Ferguson's application.
Although he appealed the refusal of his permit to the strata council and the Town, Ferguson received a letter from the Town on July 18, 2006 that confirmed his application would not be granted.
Because they were in danger of losing a $10,000 deposit with the builder that was manufacturing their mobile home, Ferguson and Macaulay advised the builder on July 28, 2006 to change their order from a mobile home to a modular home and began to have a perimeter foundation installed on their lot at the park.
Perimeter foundations are a requirement for the placement of a modular home at the park.
The court documents say, however, that Ferguson received a letter on Aug. 1, 2006 that was dated July 27, 2006 stating that, although no further mobile homes would be allowed at the park, his application would be an exception because he was well advanced in acquiring his unit and consequently will be treated in the same manner as an existing resident.
At this point, the court documents read, Ferguson and Macaulay could not change their order with the home builder and had already obtained a permit, built a perimeter foundation and paid for a crane to place their modular home at the park.
Ferguson and Macaulay therefore sought $25,000 in damages for having to pay the extra costs in buying and placing a modular home at the park.
In a decision dated July 11, 2008, Judge P.V. Hogan awarded Ferguson and Macaulay $5,179.55, concluding that the Town negligently breached a duty of timely disclosure to them in not letting Ferguson know sooner that the refusal of his permit had been reversed.
If the Town had telephoned Dan Ferguson (on July 27, 2006) with the news that he would have an exemption, and not waited to let him know by letter, which he did not receive until August 1, 2006, the claimant would have been able to continue with his original plan to site a mobile home at Desert Rose Estates, Hogan wrote.
By notifying him by ordinary mail, done in a mass mail-out to the residents of Desert Rose Estates, and not by telephone call, as the Town had previously done, it was reasonably foreseeable that he could suffer a financial loss caused by the inevitable time delay of notice through the mail.rnHogan added, however, that because the court could only guess at the difference (in) the rise in values between mobile homes and modular homes, and because Ferguson's home is worth more than they paid for due to rising land values in the Osoyoos area, the only expense Ferguson and Macaulay suffered that was not compensated by rising land values would be the cost of using a crane for placing the home at the park.
Accordingly I grant the claimants that amount, Hogan wrote.
Ferguson said he preferred not to discuss the judge's decision in an interview last week, but said he is seriously considering an appeal.rnThis might not be over, he said.
The town was given 30 days from the time of the decision to pay the damages.
This is the second small claims law suit between a park resident and the Town resulting from the bylaw dispute.
In May 2008, Judge G.G. Sinclair awarded damages to Barry Smith on the basis of negligent misrepresentation.rnThe Town's previous building inspector, Dennis Tomlin, had told Smith he could put a mobile home on a lot at the park.
According to court documents, however, after Pagett correctly interpreted the bylaw, the Smiths were told they could not place the home on the lot.
In an Aug. 10 interview, Smith, who had also sued for $25,000, said he received considerably more than Ferguson and Macaulay, but would not disclose the exact amount awarded to him.
We didn't get the $25,000, he said.
A spokesperson for the Town was not available for comment.
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