Sunday, April 09, 2006

Case of Overs-Development?

For Brian and Connie Parkinson, one of the most heartbreaking moments they've endured since pizza mogul Michael Overs bought the bungalow next door to them was watching contractors chop down a 15-metre oak tree at the edge of his property. Mr. Overs likely didn't know it, but the tree had been planted about 30 years ago by the Parkinsons' sons, not long after the family had moved into their home on Ellis Avenue.

But what happened next was worse: Two days before Christmas, the couple watched in alarm as landscaping trucks dumped tonnes of soil and massive granite boulders next door, blocking the bungalow's driveway and forcing crews working on the lot to traipse up and down the Parkinsons' drive to access the lot. The Parkinsons say an employee of the Overses informed them he had a legal right to trespass.

The couple was forced to hire a lawyer and conduct a title search to prove they could retain control over their own driveway.

The confrontation with the Overses wasn't the first to take place on the pleasant residential street. Since the legendary Pizza Pizza chain founder and his wife Lillian moved to the Swansea neighbourhood in 1989, paying $3.25-million for a mansion and other buildings on three conjoined properties sloping down to Grenadier Pond in High Park, they've been involved in at least one other public dispute.

That disagreement involved an elderly couple living on the north side of the Overses' mansion, Lucy and Tony Kortenaar, who the Overses sued for $150,000 in 2001. The drawn-out legal dispute involved a 2.5-metre-wide slice of land the Overses wanted to use as an access route for vehicles driving into their lavishly landscaped backyard. The case was dismissed by an Ontario court judge, who last month ordered the Overses to pay $25,000 in costs to the couple.

But neighbours on the street say their worries aren't over. They're concerned about the couple's plans for the properties they've been quietly amassing on the street. No one knows what they're planning, but some speculate that their wealthy neighbour is preparing to build something large in a residential area that enjoys a bucolic view of the north arm of Grenadier Pond.

"If he assembles all this land, I presume it's not for keeping a nice little garden," says an Ellis Avenue homeowner who received an offer to buy several years ago and asked not to be named. "I presume it's for building condos along this street."

City planners and the local residents association president, however, say they aren't aware of any pending development or rezoning applications.

A formidable figure in the business world, the reclusive entrepreneur started selling pizza out of a store at Wellesley and Parliament in the 1970s. He invented the single-phone-number approach to pizza delivery. The "967-11-11" jingle became so famous, legend has it that Canadian customs officials would ask travellers crossing at Fort Erie to recite it as proof of citizenship.

In the 1990s, however, Mr. Overs fought a series of high-profile legal battles with his franchisees. But the company in recent years has revived its image by lending its name to fundraising drives and various public events.

Now the Parkinsons and other Ellis Avenue residents are growing increasingly worried about what they believe could be another Overs business venture. In 1993, the Overses applied to the city to develop six homes on the 1.5-hectare site they'd acquired, a proposal that ultimately had to gain approval from the Ontario Municipal Board.

While that project never got off the drawing board, local residents have noticed that the couple has continued to assemble land overlooking the pond, possibly, they believe, with an eye to developing it. Since 1994, Mr. Overs and his wife have been living on their 51-metre-wide principal property, which is surrounded by a high wrought-iron fence and security gates. But they now own at least seven lots, most of which are contiguous. The landholding is L-shaped and extends behind the backyards of several homes on the east side of Ellis Avenue.

Some of their neighbours, who live in more modest homes, report that Mr. Overs has approached them with offers to buy their land privately.

"It looks to me like he wants to develop this area," says Mr. Parkinson, a retired business owner. "He offered to buy our place last year."

Mr. Overs did not respond to several requests for an interview. In court affidavits, however, the Overses insist that they live on the property, and have spent "considerable" amounts on landscaping it, with ponds, rock gardens and water features.

Parkdale-High Park councillor Bill Saundercook says he would oppose an application for a multi-unit residential building on the site. "That would be very out of character with the community."

The land, though zoned for residential uses and dominated by single-family homes, is highly desirable, particularly because of its view of High Park.

If a project went forward, it wouldn't be the first time a developer decided to erect a multi-unit residential complex overlooking the pond. During the 1950s, a previous owner of the Overs property attempted to develop apartment buildings on the picturesque spot, but was blocked by the Town of Swansea in the face of local opposition. And Ellis Avenue is not far from another locally controversial development -- a stepped condo erected by Context Development on a piece of empty land at the northwest corner of High Park.

Mr. Parkinson says noisy construction vehicles are constantly coming in and out of the Overses' property. The stream of vehicles led to the Kortenaars' disagreement with the Overses, who sought to create access routes to solve the problem of getting landscaping and maintenance vehicles into the sloping backyard.

One candidate was a 60-metre-long right-of-way connecting Ellis Avenue with the Overses' backyard. That strip of land, however, was the Kortenaars' driveway and a row of 50-year-old trees bordering their backyard. When they refused to let their new neighbours use it, the Overses sued them.

In court documents, the Overses claimed they had an easement entitling them to use of the right-of-way, which they said they intended to use for maintenance and landscaping vehicles bringing materials and garden waste in and out of their backyard.

But when Ontario Superior Court Justice James Farley dismissed the suit, he ruled that the Overses had made no attempt to secure the right-of-way when they bought the property; in fact, they built a new fence and planted shrubs in the area. Justice Farley noted that the Overses have other access routes to their property.

Alan Dryer, the lawyer handling the case on behalf of the Overses, declined to comment.

The ruling came hard on the heels of the Overses' dispute with the Parkinsons, which bore similarities to the Kortenaar case. During the construction over Christmas, an employee of the Overses presented the Parkinsons with land title documents purporting to show he had the right to use their driveway to gain access to the property next door. The end of the Parkinsons' driveway meets the property line separating their lot from the one the Overses bought.

Lawyers for the Overses have now challenged the legal opinion given to the Parkinsons. "This is terrible," says Mr. Parkinson. "We don't need all this nonsense."

They find the situation more than a little ironic, given that the formidable fences and gates around the Overses' property are festooned with "private property" and "no trespassing" signs.

"This is private property, too," says Mr. Parkinson. "We're not going to be chased out of here."


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