A dispute about whether a door exists at 843 Main St. is heading to court next month.
For the past six years, the owner of Surplus Direct Liquidation at 843 Main St. has been fighting a city order that he vacate the premises, due to issues related to the door, in part because the city doesn’t have documents proving it exists.
Now, Robert McDonald plans to sue both the City of Winnipeg and his neighbour at 847 Main St. over it.
In 2013, McDonald complained to the city about a piece of heavy equipment, which belongs to his neighbour, at 847 Main St., that blocked the fire escape on the north side of his building.
The equipment was moved a few feet back, far enough that the door works as a fire escape — but the complaint triggered a firestorm.
“Right now we have a fire order… saying that door has to stay (useable). The planning department wants us to close (off) that door,” McDonald’s lawyer John Prystanski said.
“If that door closes, that triggers an application (for a permit) that now requires us to build to modern standards. And having to build to modern standards is cost-prohibitive for this building. But it’s not necessary… because the existence of that door has been for
74, 75 years.”
Prystanski also represents the group of business owners that hired private investigators to trail city building inspectors. They were caught running personal errands during work time, among other infractions. The case not only triggered an internal review of city inspections, but a provincial review as well.
A local engineer, who wanted his name withheld, said since those reviews, it’s been even more difficult to deal with city hall. But for years, he said, catch-22s such as this case have been common.
“I have calls like this three times a week,” the engineer said. “I had a client like this recently… they threw the book at the guy.”
Old buildings are grandfathered in to the building codes that were in place at the time they were built or renovated, in this case, 1945-51; a building the size of 843 Main St. at that time required two fire exits.
To satisfy city planners, McDonald must prove the door exists, has existed and has been in continuous use since those codes were in place.
That’s because the city doesn’t have blueprints for the building that should be in its archives. Many building plans were lost when a city building flooded in 1950. City officials said they could not comment on whether these plans were lost in the flood, or comment on the issue, because of the pending lawsuit.
Since no plans exist of the building, which was the Kern-Hill Furniture store, McDonald and Prystanski approached the family of former owner Nick Hill.
They got Hill’s son to write a letter confirming the history of the door. They also submitted a 1951 permit application and even a March 29, 1951, edition of the Winnipeg Free Press with an article about the building.
Meanwhile, in the process of proving that the door exists, McDonald has been ordered to make the door no longer exist. The city violation notice orders him to permanently close off the disputed north side door with fire-resistant material and build a new fire exit at the back of the building. That would require a permit and new engineer-stamped plans. But if McDonald applies for a permit, city bylaws state the new construction will have to be up to current building codes. So the building would no longer be grandfathered in.
“Keeping the door (useable) is a life-safety issue,” McDonald said.
Their submissions to the city’s appeals committee include an email from the city’s senior fire prevention officer, Ed Traa, from Jan. 11, 2019, saying the door should remain useable as a fire exit.
While such disputes are “not uncommon,” the structural engineer said conciliation might be a better approach than a lawsuit.
“If you’re going to come in there guns blazing like Yosemite Sam, I don’t know if that’s going to work for anybody. They are the regulator, we have to work with them,” he said.
Prystanski said doing what the city wants would be costly, unfair and not as safe as leaving the side door fire exit in place. Besides, he said, the building also has a defacto back fire exit — a four-foot-wide loading door, though it’s about 41 inches off the ground.
Top Pro Roofing, which is at 847 Main St., is preparing a statement of defence.
“Based on the city orders, we’ve done our part to co-operate with the requirements,” supervisor Brian Bialowas said.