A Windsor man says he is being asked by the city to undo the changes he made to his backyard but he worries it will financially ruin him — and the deadline is looming.
“It’s been extremely stressful,” Robert Redmond said.
The Fontainebleau resident bought his house in 2019. In his backyard stood a berm — a raised ground barrier almost like a hill — and an adjacent cement wall to mitigate the sound from the train tracks behind his property.
Seeing that his immediate neighbours had made modifications to the structures decades ago, Redmond followed the suit. During the pandemic years, he dismantled the wall, which he said “was already shaking and hence hazardous.”
“We then took out the hill itself, which was about 52 dump truck loads of dirt,” he said.
The father of two said that it cost him $6,700 but was worth it to free up space for his kids to play.
But soon after, Redmond said a neighbour called the city about it, who then told him to put the berm back. Redmond said he was given a year to get an engineer specializing in sound to redesign the structure.
The 41-year-old says he searched far and wide in Ontario to find the engineer but could not. Eventually, he said he was able to get a hold of the engineer who was with the firm that designed the original berm 30 years ago. Redmond said the engineer said he could design a wooden fence that would meet the sound requirements that the original berm offered.
“Based on what the city had told us, they said that if we found an engineer that could come up with a solution, they would look into it. That’s what we did. And then we were shot down and they had no interest in hearing about it.”
‘It’s been a nightmare’
Redmond said the city “just dismissed” the solution and insisted that the berm be restored for safety in case of a train derailment. But Redmond maintains that it’s a trainyard and trains are never moving fast and that even in the unlikely event a derailment occurs, “it’s not going to hurt anything” in the vicinity.
But in a statement, the City of Windsor said according to its property standards bylaw, specific regulations apply to sound barriers and berms.
“These existing barriers and berms, designed for sound attenuation and train safety, must be maintained in a safe, plumb, and structurally sound condition, unless designed otherwise,” the city said.
“Compliance with bylaws and rail safety requirements for residential developments near active train tracks is mandatory for all residents, and any violations observed are subject to enforcement actions.”
‘No other options’ other than a berm
Colin Novak teaches engineering at the University of Windsor and said he was part of the acoustic impact assessment 30 years ago.
He said berms were installed for the abatement of noise and vibration and act as a safety measure.
“The requirement is to attenuate the noise down to a certain level that’s deemed to be acceptable… It doesn’t mean you’re not going to still be able to hear that train. It just means that that the level will be at what has been deemed to be an acceptable level,” he said.
“The potential that the noise has increased is certainly there. There is a possibility if there’s been a significant increase in rail traffic that the levels even with the berm would be above those provincial guidelines now.”
Novak was consulted by Redmond for the alternative solution.
He said a noise barrier fence or a concrete fence similar to the walls seen along the side of the highways like E.C. Row Expressway can also work well in attenuating the noise.
“However, they don’t give you that added benefit of the safety buffer because the train can push that fence right over if it were to derail.”
Novak said “there really are no other options” than a berm for that safety aspect.
“Along a railroad line, berm is the standard and that’s a North American thing. So it is written in the noise and vibration guidelines in Ontario. But it is written similarly in all jurisdictions in Canada as well as in the U.S.”
‘This could financially destroy our family’
Redmond said had his real estate lawyer disclosed to him from the start that he could not modify the berm and the wall, he would not have gone down this route.
CBC reviewed communication to Redmond from the Law Society of Ontario, the body that regulates the legal profession in this province. The Law Society said it found the lawyer failed to disclose the information to Redmond and was provided regulatory guidance to avoid future occurrences.
But now, Redmond has to restore the berm by Feb. 4, according to the city.
Even though, Redmond said, the city knows that others aren’t in compliance too, only they are being penalized.
“The city said, well, if you have a problem, call about them. We’re not going to throw our neighbours under the bus… It’s not fair.”
He said there is a work order against the title of their home, so they can’t even sell and move. As per estimates he has received, the berm reinstallation could cost upwards of $50,000.
He said he recently cancelled his Disney subscription to cut costs and now worries about paying potential penalties following the deadline.
“We don’t know what to do. We clearly do not have the money to do that either. And this is not, some little project. It’s a massive undertaking,” he said. “This could financially destroy our family.”
“We’re just really stuck and we don’t know who to turn to for help… it’s been really hard on our family having this looming over us not knowing what to do and can’t really plan for the future.”
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