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Elevator issue has become a ‘nightmare’ for local developer

Brooklyn Manor, in Edmonton, August 8, 2013.
Brooklyn Manor, in Edmonton, August 8, 2013. Global News

EDMONTON – Intended as an investment for his retirement, an Edmonton man built an apartment complex. Now, he says the City has changed its mind about an elevator, which could make the complex un-rentable.

“Basically, this building was the retirement plan for my wife and myself,” says Gary Nash. “We named it after our granddaughter Brooklyn.”

Nash and his wife funnelled all of their resources into the project.

“It took everything we had.”

Still, they had built another rental complex in the same neighbourhood decades ago and felt the investment would pay off.

Nash, his architect and designers read all the building rules and determined their proposed design did not require an elevator. So, they submitted the necessary paperwork in February of 2012.

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“We submitted all the blueprints and plans to the City.”

Last summer, he says the City approved the design and issued development and building permits. Then, once construction on Brooklyn Manor was complete – late January of 2013 – Nash submitted the paperwork required for the City to inspect the complex for occupancy.

“We received an email that says ‘don’t submit anything more to us because you don’t have an elevator in the building and until you do, we’re not going to grant you occupancy,’” he recalls.

“I was dumbfounded and my wife was devastated.”

The issue is over the height of the building. Typically, complexes more than three stories require an elevator. However, Nash says provincial regulations dictate that if a complex is small enough, it’s exempt, and he has called the City to discuss the rules.

“I explained to them that the Barrier Free Design Guide, produced by the Municipal Affairs, Alberta government, specifically says you don’t.”

Since Nash received permits from the City last summer, he assumed there were no problems with the design and not including an elevator in it.

“They claimed the building permit was issued in error,” says Nash. “If a permit is issued in error then the City, being a so-called accredited municipality, can revoke it.”

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Initially, Nash wasn’t going to be allowed to rent the suites out, but the City has since permitted tenants, at least until the issue is resolved.

“It’s now before the courts. The City’s been sued.”

Nash has filed a statement of claim with the province as well, and he believes his case is strong.

“I’ve always known that we are right. When you build a building that exceeds the barrier free issues, and you read a government document that says specifically you don’t need an elevator, how can I be wrong? For the government to be claiming they have no responsibility is ludicrous. And for the City to be trying to deny a valid building permit almost a year after they issued it is ludicrous as well. There has to be some accountability in this.”

Lawyer Robert Noce says Nash’s case is not unique.

“It’s not an unusual situation. Municipalities believe it or not make mistakes. The question – the classic question – is who should bear the brunt of that mistake.”

“There have been other examples where the courts have said to municipalities ‘too bad. You missed this, and you should bear the brunt of this mistake, not the landowner.'”

Noce adds the section of the building code being questioned is not very clear for builders.

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“From a drafting perspective, it’s not the best-worded section in the building code. I think the drafters could have done a better job.”

And, he sympathizes with Nash’s situation.

“I can see his argument. The problem is, I don’t necessarily accept it.”

“Clearly, if he unsuccessful in getting this section interpreted the way he wants to, he will suffer a loss of some sort…I feel very sad by this.”

If Nash is wrong, he must either build an elevator in an already-completed complex or leave the top floor empty. HE admits neither option is part of his original business plan.

“That was a surprise from hell, I’ll tell you.”

Global News contacted the City for comment on this story, but no response was provided. The province is withholding comment because the case is now before the courts.

With files from Fletcher Kent