Greater Sudbury has won a battle at the Local Planning Appeals Tribunal – but not the big one over the Kingsway Entertainment District.
In a decision released Dec. 23, the LPAT ruled a local construction company was not entitled to $762,000 it was claiming for compensation for land the city expropriated in 1999 as part of plans to create the Junction Creek Waterway Park, a series of trails that run from the West End to New Sudbury.
In total, 1.545 hectares owned by Loris Cecchetto Construction Ltd. was expropriated in the Flour Mill section of the city. The property includes the channel of Junction Creek that passes through the company's land, and a strip about 22 feet wide to the east of the creek. Initially surveyed at 18,220 square feet, a new survey produced at the LPAT proceedings corrected the measurement to 22,572 square feet.
The company's claim included such things as the estimated the loss in market value for the property — $144,461 — $233,911 for trespassing and $198,400 for “Estimated Injurious Affection from Parking Restrictions.”
Injurious affection is a legal term that refers to losses landowners can incur when a governing authority builds a public project that hurts the value of their land or affects their business. While it need not be a result of expropriation, injurious affection claims are commonly sought in those cases.
In this case, the company argued that straightening and realigning of Junction Creek that took place 1954 or 1955 to deal with flood problems should be part of the case. The creek was moved from the eastern edge of the property to roughly the centre.
Even though the company bought the land in 1980, it argued the 1950s realigning of the creek was part of the long-term plans of the city to build the trail system, and so should be part of the expropriation process that took place in 1999.
“The claimant (also) maintained that the relocation of the creek was never approved by the previous owner of the property and the city did not pass a bylaw authorizing the realignment, or expropriate or acquire any of the subject lands at the time the work took place,” the transcript of the decision says. “The relocation of Junction Creek has essentially bisected the subject property.”
The company argued that redirecting the creek was trespassing, for which the city owes them compensation, and argued that the 1999 expropriation was an attempt to “cure the ongoing trespass on the claimant’s lands.”
In its appeal, the company also said the realignment and expropriation have reduced the value of the land they still own. For example, there must be a 25-metre distance from the realigned creek to any parking lots, under Conservation Sudbury rules for floodplains. And the expropriated property bisects the area, making easterly land the company still owns basically worthless.
In its ruling, the LPAT said for the company to win its claim under the Expropriation Act, it must show that the losses are a result of the expropriation. However, the realignment completed in the 1950s was apparently done under the Drainage Act, and no expropriation was done.
While unusual today for a municipality to do such work on land it doesn't own, “the tribunal appreciates that it may not have been an unusual practice in the 1950s.”
To make its case, the company had to show the work done in the 1950s was really part of a long-term plan to take over ownership of the property to build the Junction Creek Waterway Park.
While possible, the LPAT ruled there was no indication on the city's part that the work done decades ago was anything other than an attempt to deal with flood issues in the Flour Mill area.
“If a main intent of the scheme was to complete the creek relocation project by acquiring the lands that included the relocated creek, why would there have been such a long delay?” the LPAT wrote in its decision. “There was no evidence provided of a request or of any pressure by the previous owner of the property for the city to acquire the area of the relocated creek. The intent to acquire the claimant’s lands only arose with the preparation of the plan for the Junction Creek Waterway Park.”
And while the park plan included elements of flood control, the plan focused “mainly on recreational, aesthetic and environmental benefits,” the decision said. “The tribunal cannot conclude from the evidence that completion of the creek relocation project and flood control were the city’s motivation for the acquisition.
“In order to accept the claimant’s position, the tribunal would have to conclude that there was an unstated intent to acquire the relocated creek lands on the claimant’s property when the relocation occurred in the 1950s and the city waited nearly 40 years to state that intent.
"This intent would have needed to be carried through undoubtedly many changes in the composition of city council and staff. The tribunal simply finds that this proposition is highly unlikely and unreasonable.”
While the realignment put that area of the property on the floodplain — which brings a host of building restrictions — the LPAT ruled the land was in that condition when the company bought it in 1980, and so the land use restrictions were already in place.
The LPAT did rule, however, that since the land survey was incorrect, the company should have been compensated for losing 22,572 square feet, not 18,220, and awarded an extra $1,088, plus six per cent interest.