Photo: Court exhibit

Photos of the Baptiste Lake area from similar view points, before construction work (top) and after (bottom).

The Regional District of East Kootenay gave a property owner $13,720 in compensation after expropriating a piece of property for the construction of a small dam back in 2018. Earlier this week, a judge ordered the district pay an additional $340,000.

Following a 2013 dam safety review of a small dam on Baptiste Lake east of Edgewater, the RDEK began improvement work on the 90-year-old dam in 2018, expropriating a 1.86-acre piece of property from developers Fred and William Schickedanz.

The 157-acre property around the lake is the last unsold parcel amongst 15 private ranches in the area that had been owned by the Schickedanz – a father and son team who run a development company in the area.

Construction of the new dam ran from September 2018 to November 2019, raising the dam by one metre and adding rocks and boulders along the dam's berm, running about 200 metres,

To compensate them for the expropriated property, the district paid the Schickedanzs $13,720, which includes $3,720 for what it considered to be the market value of the piece of property, along with $10,000 for “legal, appraisal, and other costs, and general disturbance damages.”

In July 2019, before construction was even completed, the Schickedanzs sued the district, seeking additional compensation for the claimed impact the new dam construction had on the property's value.

The property had previously been listed for sale between $1.995 and $1.4 million, but at trial, which was held this past April, real estate appraiser Sean Hughes estimated it's value to be between $1.06 million and $1.185 million. The property was taken off the market in 2018 "due to anticipated market concerns about the dam expansion."

'Bucolic replaced by industrial'

Hughes testified the dam construction had devalued the property by 30 per cent.

“Before the taking, the dam appeared to be a natural shore of a mountain lake. After the taking and construction, the dam is industrial in nature, thus significantly diminishing the natural aesthetic of the lake,” Hughes said.

“Although the original dam was more than 90 years old at the date of expropriation, with more than 40 years since the last upgrade, the expropriation and construction is evidence of interference by an authority with expropriation powers such that it raises concern that additional interference and additional damages are probable in the future, thus diminishing the privacy and appeal of the property.”

In his recently published decision, Justice David Crerar accepted Hughes' description of the land as a rare “trophy property” and agreed with Hughes' assessment, adding that the new construction has “significantly marred the aesthetic and functional value of the property.

“Before the new dam works, the north end of the lake was green, seemingly wholly natural,” Justice Crerar wrote.

“Now, it is a stark raised blanket of rocky riprap, with the manhole construction and railings jutting out from the middle. No one would mistake the new north shore as natural. Bucolic has been replaced by industrial.”

Justice Crerar added that at trial, the district “ultimately conceded that the new dam works had a negative aesthetic impact on the north end of the lake,” although the district tried to minimize the impact, accusing Hughes of advocacy in his testimony.

“The District accuses Mr. Hughes of crossing the line from opinion expert to advocate in his description of the Property using such words and phrases as 'extraordinary aesthetic,' 'spectacular,' and 'unique and exceptional,'” Justice Crerar wrote.

“Use of such descriptors is not inappropriate in evaluating a property whose main amenities are aesthetic and recreational. As indicated above, and in the attached photographs, the Property is spectacular, unique, and exceptional, albeit considerably less so after the new dam works.”

Accepting Hughes' assessment of the devaluation of the property, Justice Crerar ordered the regional district pay the Schickedanzs an additional $340,080, the bulk of which was for the decrease in land value, along with a small amount for the newly assessed market value of the expropriated lands minus what had already been paid.