Ken Nelmes’ retaining wall facing onto Jasmine Drive. Photo by Paul Everest/ Osoyoos Times file - Click on picture for larger image
OSOYOOS TIMES-May 5, 2010
By Paul Everest – Osoyoos Times
A Lobelia Drive resident who was ordered last May to remove a retaining wall on his property is asking the Town for more time to find a way to take down or alter the structure.
In a May 28, 2009, decision, a judge granted the Town of Osoyoos an injunction against Ken Nelmes to remove a five-and-half-metre-high wall on his property bordering Jasmine Drive.
The judge issued the order for Nelmes to remove the wall because the Town had identified Jasmine Drive as a potential road reconstruction project and the wall prevents the Town from upgrading the road.
During court proceedings, geotechnical engineers testified that the wall could be replaced by a structure that would not encroach on the road, but such a replacement could cost anywhere from $30,000 to $50,000.
The judge recognized that such a cost would pose a hardship on Nelmes and so he ordered that the injunction be stayed for one year with the possibility of extending the stay further to allow Nelmes to “arrange his affairs and further investigate the alternatives available to reconfiguring the wall or securing concessions from the utilities involved as to the allowances they require.”
With the year almost up, Nelmes appeared before Osoyoos town council at its committee of the whole meeting on May 3 and requested a further stay on the order to remove the wall.
He said his reasons for requesting the stay were of a financial nature, arguing that he is “in this for $100,000” after seven years of dealing with the wall issue and he can’t afford to pursue some of the options put forward by engineers for removing the wall.
He said that having another year might allow him to gather the money needed to deal with the wall in some way.
Nelmes also said he felt justified in requesting the stay, since the Town has no immediate plans to upgrade Jasmine Drive.
Barry Romanko, the Town’s chief administrative officer, said, however, that upgrades to the road have been included in the Town’s five-year business plan and will likely take place in 2012.
Coun. Michael Ryan said the judgment gave Nelmes a year to investigate his options for removing or altering the wall and Coun. Margaret Chadsey asked Nelmes what he had done in the year to bring the matter to a close.
And, she said, if he had explored some options, what couldn’t he accomplish in the past year that he would need another year to look into?
Nelmes said when the judgment was issued, he didn’t believe there would be any upgrades to Jasmine Drive and so he didn’t do anything.
Mayor Stu Wells said Nelmes could only ask the court for a stay on the order to remove the wall and that the Town could only support an application made to the court.
Such support could not be given at the committee of the whole meeting, he added, since it was not a meeting where council makes decisions.
Wells also said that in order to gain such support, however, the Town would need some timelines for plans to remove the wall and possibly a bond or surety from Nelmes.
Coun. CJ Rhodes said it was Nelmes’ responsibility to come up with some information for the Town regarding what options he was pursuing to remove or alter the wall and that he had better do it quickly because the one-year deadline “is looming and the consequences are serious.”
When Nelmes said he didn’t understand what information the Town needed, Wells told him to talk to a lawyer to find out what needs to be done.
“I’ll get legal advice,” Nelmes said.
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