It looks like a judge may ultimately decide the fate of a commercial developer’s brick wall that appears to be encroaching on an adjoining residential property in Oxford Village.
‘If we can’t come to some successful resolution between the parties this has to go to court,? said attorney Jake Porritt, who represents developer Fred Hadid. ‘I don’t see how it’s not going to have to go to court. If it doesn’t go to court, it would surprise me.?
‘I want the wall off my land,? said the developer’s neighbor Paul Phelps. ‘I just want it off the property so I can get back to normal. If he would say we’ll tear this wall down and we’ll move it, I would go away and be a very happy camper.?
‘I want it over with. I don’t want the stress. I just want to be left alone,? Phelps explained.
At issue is the six-foot high brick wall separating Phelps? property on Ensley Street from the village-owned alleyway behind Hadid’s 20,000-square-foot retail/office building (known as the Broadway Plaza) currently under construction at 76 S. Washington Street.
Last year, council agreed to lease to Hadid the 75-foot-wide alley, which extends between Broadway and Ensley streets, in exchange for him paving the entire thing and creating a free public parking area with a minimum of 40 spaces.
Phelps came to the council Nov. 28 complaining that the wall Hadid was building on village property as part of his site plan was in fact partly on his property and had damaged and possibly killed a large maple tree he owns.
‘If the wall is in fact on my property, I’d like to see it moved off my property,? Phelps told council. ‘It’s property I paid for and I don’t want to just give it up.?
Phelps told officials he feels the ‘only way? he’s ever going to realize the value of his property in the future is if he sells it for commercial development.
‘I think losing every foot of it makes it worth less,? he said. If he were to accept an monetary offer from Hadid for the possible encroachment onto his land, Phelps told officials it would have to be ‘very substantial.?
‘I think he could move the wall cheaper than what I’d want to sell the property for,? Phelps told this reporter. But that doesn’t matter because ‘I don’t want to sell it . . . I don’t need anything but the wall moved.?
Village officials paid Rowe, Inc. to have a survey conducted last week which determined the wall’s south end is encroaching on Phelps property to the east by 13 inches.
‘I would say wherever the village surveyors say the line is, that’s it,? Phelps said.
The north end of the wall is 8 inches over onto a neighboring residential property on Broadway Street.
The encroachment on the north end is apparently not an issue with Richard and Ella Zortman, who own the adjoining Broadway Street property.
Ella Zortman called the wall ‘the best thing that ever happened to us? because it keeps the garbage from blowing onto her property and it looks nice.
‘I look at that wall everyday and I love it. They’ve done a gorgeous job,? she said. ‘I’ll give you whatever property that it needs to keep that wall there.?
In light of the Rowe survey and Phelps? feelings, Bishop was adamant that Hadid should remove the wall from Phelps? property in order to comply with the approved site plan. He said he village has the right to make the developer move it despite the opinion of some on council, like President George Del Vigna, that the issue was a civil matter best handled by the courts.
‘We as the village government do have the authority to enforce compliance with our site plan,? Bishop said. ‘We do not have to tell somebody, ‘Look go hire an attorney and take these guys on civilly.??
‘Your wall should be where the site plan says it should be,? Bishop told Hadid. ‘As long as it’s where the site plan says it should be, the wall’s great.?
‘If something is built incorrectly, it’s the village’s job to enforce what’s been approved,? noted village Planning Commissioner Jeff Ziegelbaur.
Council last week voted 3-2 to direct Manager Joe Young to enforce the village ordinances with regard to the Hadid property.
‘We just want him to build what they said they would build on this site plan,? Bishop said.
But Hadid’s attorney Porritt disputed the results of the Rowe survey saying the actual difference between it and the one RW Surveying originally performed for Hadid was really just two inches. ‘They’re straight line is two inches different than our straight line,? Porritt explained.
He said most of what extends onto Phelps? property are the wall’s ‘decorative? columns, which play no ‘supportive? role in the actual structure.
‘We can cut the column off ? cut the back of the column off (on the east side). According to our survey, once you do that, we’re good,? Porritt said. ‘You could literally cut it off and re-brick it flat and it wouldn’t be violating.?
‘It’s really splitting hairs because we’re only talking about a couple of inches no matter what,? Porritt noted.
The other problem with the boundary is, according to Porritt, the surveyor Hadid originally hired returned to the site Dec. 5 and found the metal stake he placed underground at the wall’s south end had been moved a couple inches to the east (toward Phelps? property) by an unknown party. The moving of the stake makes the actual wall over the line by two inches, according to the RW survey, and four inches, according to the Rowe survey, Porritt explained.
A report concerning the allegedly moved stake was filed last week with the Oxford Village Police, according to Porritt, who noted the surveyor filed an affidavit stating the stake was moved. ‘We obviously have nothing to gain by that movement,? Porritt told this reporter. ‘There’s no benefit to the developer at all for this wall to be on the neighboring property. It’s going to cost money.?
‘The only one who has to gain from that would be Phelps,? Porritt explained. ‘Here’s a guy who stands to gain from the walling moving in his direction.?
‘The real issue is money, it’s never been about his two inches or even his tree,? noted Porritt, who noted Phelps keeps saying he wants is ‘substantial compensation,? but isn’t specific about a dollar amount.
‘He’s got a bird in his ear telling him there’s tons of money there to be made,? Porritt added. ‘He’s getting consulting from people telling him how to milk the situation.?
Phelps told this reporter he ‘never moved? the surveyor’s stake and ‘never dug anything up.?
‘I’ve got nothing to gain,? he said. ‘All I’m getting out of this is stress and probably a shorter life. It does nothing good for me.?
If he had moved the stake, Phelps said it would been ‘the other way? (to the west) in order to get the wall ‘as far away as possible? from his property. ‘I don’t want any monetary gain. I want the wall off my property,? he explained. ‘If they would take the wall off my property and not give me a nickel other than fixing (the ground) like it was, that would make me the happiest.?
Describing himself as a ‘keep-to-myself? type of person, Phelps said he hates going to these meetings and talking to all these people. ‘It’s been a headache,? he said.
Porritt said Hadid was willing to knock down, move and reconstruct the southern portion of the wall ? not the entire wall ? as long as a stipulation could be obtained, from either Phelps or a court of law, as to where the actual property line is.
As for the maple tree damaged by the excavation work to construct the wall, there’s some question as to where it sits in relation to the property line. ‘I think the tree is fully on my property,? Phelps said. ‘Every survey I’ve seen showed it being on my property.?
Phelps and some village council members believe Hadid violated a local ordinance which states, ‘Excavations … shall not be placed within five feet of any tree without written permit from the village manager. Any person making such excavation or construction shall guard any tree within six feet thereof and all building material or other debris shall be kept at least four feet from any tree.?
‘He’s supposed to stay six feet away, but he cut right into it,? Phelps said.
A Nov. 30 inspection performed by registered forester Anthony Dombrowski found there has been damage within the ‘critical root zone? on the westerly side of tree.
‘The critical root zone is used to define the portion of a root system nearest the stem that is critical for the stability and vitality of the tree,? Dombrowski wrote.
But because the new asphalt pavement along the westerly side of the tree is within the critical root zone, Dombrowksi told the village it’s ‘impossible to determine? the ‘actual extent of the root damage within this area,? but ‘some root loss inevitably occurred.?
Overall, Dombrowski concluded the tree is not hazardous at the present time and does not pose a high risk of failure.? But Porritt said Hadid was well within his legal rights to ‘cut straight down through the roots? because it ‘straddles? the property line. One-third of the tree is on village property while the other two-thirds are on Phelps? land, Porritt explained.
‘If someone’s tree branches hang over your house or into your property that’s a trespass into your property; so you’re allowed to cut straight down and straight up on the property line,? Porritt said.
With regard to the village’s ordinance regarding excavation near trees, Porritt said Hadid did obtain ‘written approval? from the village manager when Young signed off on the approved site plan.
Councilman Bishop disagreed with Porritt’s assessment because the site plan doesn’t show an ‘inventory of trees? on the surrounding property.
‘Without that, I can’t see how the plan would inadvertently give permission to excavate within six feet of a tree that isn’t on the property,? Bishop said.
Porritt noted it was a ‘forgone conclusion? the tree was going to sustain damage given its position on the property line.. The only question is how is it going to affect the tree as an on-going concern.
Dombrowski’s letter indicates ‘it’s not going to be a potential failure as a tree,? Porritt said.
Phelps disagreed. ‘I feel he’s killed it,? said Phelps, who estimated the digging killed pretty close to 50 percent of the roots. ‘If I thought it was alive, I would insist on it staying there.?
Phelps said he wants either one of two things with regard to the tree issue ? a letter stating that if the tree dies in three or four years, Hadid will pay to have it cut down and compensate him for the loss of the tree or have Hadid compensate him now for the cost of purchasing and planting a tree of similar size and species.
Porritt said Hadid previously offered to build around the tree or pay to have a new tree brought in and planted.
‘I said my landscaper can give you any tree you want, anywhere you want,? Hadid told council. ‘I did everything possible to please everyone.?