SOMBA K'E/YELLOWKNIFE - The fight over a fence on the old Bartam site continued Wednesday evening when the city's development appeal board heard Nova Builders' argument to allow a permit for the structure.

This fence, almost two metres high, was originally constructed last fall after the city received complaints about debris on Nova Builders' lot on School Draw Avenue. - NNSL file photo

For about four hours on Wednesday evening the board heard evidence and arguments from Nova Builders', concerned residents, and the city's development officer.

According to Nova Builder's representative Milan Mrdjenovich, it's a fight no one is winning.

"This fence is a thorn in everyone's side," he said. "It's given the city a black eye, us a black eye, even the residents who are complaining about it a black eye. It makes everyone look bad."

Mrdjenovich said he's grateful for the hearing because it gave him an opportunity to explain his company's position, which he felt has been misconstrued.

"I'd like to put this under the rug," he said. "But it's not up to us."

During the hearing, Mrdjenovich told the board the proposed development for the School Draw Avenue property "would have been done by now if all this hadn't been going on."

Nova Builders put up the fence after the city received complaints about debris on the lot and told the developer to do so.

By the time almost two-metre-high fence was constructed, the development permit had been denied.

The developer had contacted the city clerk to arrange to appeal the decision but "dropped the ball," according to Nova Builders' legal counsel.

The city then charged Nova Builders under the city's zoning bylaw, but charges were stayed this past June when it decided to go through the development appeal process, a step the city said would take less time and cost less money than going through the court system.

In the meantime, residents in the School Draw area said they're getting fed up with the fence.

David Gilday was one of four residents who attended the hearing to speak against the fence. He told the board he has lived on the road opposite the Old Bartam Trailer Court since the 1980s.

In his presentation, he said the board's issue is a matter of deciding whether or not to uphold the city's bylaws.

"Do we uphold the bylaws or are they simply to be ignored? Are there special lists in the city of people who don't have to follow the bylaws and lists of people who do?" he said.

Sheldon Toner, Nova Builders' legal counsel agrees, the issue had become about more than a fence.

He did, however, suggest to the board that emotional testimony from homeowners muddied the issue, and asked board members to stick to the facts when considering their decision.

Gilday said the matter should be simple.

"Black and white, salt and pepper," he said. "Rules are rules."

He called the way Nova conducts business "reckless and cavalier," and said he objects strongly to it, but insisted his opposition was not personal.

He went so far as to say the fence was a personal attack on the residents in the area by Nova Builders, saying the half-painted wooden structure was the developer's way of mocking them.

Whispers between some residents during Toner's presentation even compared the fence to the Berlin Wall.

People with homes neighbouring the property were unanimous in their agreement that they could not foresee a just outcome where the fence is left standing.

Nova Builders' latest plan is to build 18 row houses at the site.

When the development officer explained she made her decision to reject the permit based on the city's decision to refuse permission for a fence that is higher than the bylaw allows, Toner requested reasons for their refusal.

"I think what's happened is city council has become unable to make a clear decision about this fence because of the controversy surrounding it," he said.

No representatives of the City of Yellowknife's position as an adjoining landowner were present at the hearing. Kersten Nitsche has worked as a development officer with the City of Yellowknife for three years and has attended three development appeal board hearings.

She said the city's attendance at the hearing was not required.

"The city is the adjacent property owner in this situation ... so the city does have the option to attend, but doesn't need to," she said.

"This is by far the longest running hearing I've ever been to," she said after spending almost four hours in a boardroom.

According to Nitsche, the development appeal board must make its decision based on the requirements of the city's zoning bylaw, and not emotional factors.

At 11 p.m., the board was still at city hall discussing the hearing.

If the board overturns Nitsche's original ruling against the fence, she would be obligated to grant Nova Builders a permit for the fence, and if the approval comes with conditions, the city would be responsible for enforcing them.

She said if Nova Builders wishes to appeal the decision of the board, it can go through the Supreme Court of the NWT.

If they want to reapply using the same application, the developer must wait six months, or they can reapply within six months if the application has been altered, Nitsche said.

The developer may also apply for another development permit in six months time if they wish.

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