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HomeMy WebLinkAbout1978-01-127 January 12, 1978 Albert C. Guiler, A.M.C.T., C.M.C., Town Manager, Corporation of the Town of Newcastle, 40 Temperance Street, Bowmanvil1e, Ontario. Dear Mr. Guiler: Re: Courtice Heights Subdivision You have asked me for an opinion on the recommendation of the Courtin Task Force that a by- law be passed by the Town of Newcastle enumerating the following policies with respect to Courtice, namely, 1 District Plan a. No Town approval of any additional subdivision prior to the preparation and approval of a district plan; b., District plan will be prepared in close consultation with the residents of Courtice; c. District plan will contain policies relating to the phasing and/or staging, density and housing types of all additional developments in the Courtice area; 2. Extension of Water and Sewage Systems The Town will support a recommendation whereby the Region develops an engineering policy relating to the phasing and method of payment for the extension of water and sewer services adjoining or passing existing residents such that new development pays for thra 'rrnntorrn ,,.-. lot line on public roads and/or on public rights -of -ways. All would be included in the regional subdivision agreement. 3. Street Lights District Plan would include a street and lighting plan which would define policies relating to the phasing and method of payment for the provision of street lighting on existing public roads adjacent to or abutting lands to be developed such that the new. development pays these costs. 4. Well Water Damage The Town will incorporate provisions in all subdivision agreements such that if any of the works defined in the subdivision agreement does damage to adjacent property owner's wells, the subdivider will assume full responsibility to correct the damage or to pay the costs to hook the affected party up to a municipal water supply system. 5. Staging The Town will incorporate policies relp.ting to this staging of the construction of all works in the subdivision agreement pertaining to subdivision application 18 T-76027. 6. Municipal Storm Drainage Works If any storm drainage works constructed by the Municipality cause damage to adjacent property owners' wells the Municipality will assume full responsibility to correct the damage or pay the costs to hook the affected party up to the Municipal water supply system. I would like to comment on each of the above noted matters in the order in which they are raised. 1. District Plan 3 Darlington is the only official plan having any legal status at this moment. Upon the creation of the Region, planning authority vested in the Regional Municipality of Durham. Section 62 of The Regional Municipality of Durham Act re- quired the Regional Council to prepare a draft official plan on or before the 31st day of December, 1976. Section 59 (3) of the same Act provides that all official plans in effect on the 1st day of January, 1974, remain in effect as official plans but when an official plan adopted by the Regional Council has been approved by the Minister all other official plans shall be amended forthwith to conform therewith. As you are well aware, the draft Regional Official Plan was approved by Regional Council on July 14, 1976. This plan has been submitted to the Minister and there has been a continuing dialogue concerning the Ministerial modifications and objections to the plan. However, 1 understand that there were no significant objections to the provisions in a draft Regional Official Plan pertaining to Courtice until a letter was forwarded to the Minister on January 6th, 1978 by the solicitors representing Progeny Developments (one of the objectors at the hearing) requesting that the whole of the Courtice area of the draft Regional Official Plan be referred to the Ontario Municipal Board on the grounds that there is an abundance of capacity for further,develop- rent within the existing boundaries of the City of Oshawa and that the development of Courtice as a community is premature. Needless to say it is too early to know how this request for reference will be considered by the Minister. However, when the draft Regional Official Plan is approved At is then contemplated that District Plans may be prepared for each of the area Municipalities. Such District. Plans ill hien be considered to be amendments` to the.. Regional Official Plan. •1 am sure that the Town of Newcastle will have to go through the District Planning process having in mind the length of time that the existing Official Plans have been in existence without significant amendments. In doing • so, the Town will have to hold public meetings for the pur- pose of obtaining public participation and cooperation. Thus the concern of the residents about consultation, in the preparation of the District Plan has already been protected by virtue of the provisions of The Planning Act. Until the Regional Official Plan has been The Town's position has been, with respect to the two proposed plans of subdivision now before the Ontario Municipal Board,that they conform with the Official Plan for the former Township of Darlington and with subsequent planning concepts commissioned by the Town and in particular The M. M. Diller' study and that no further studies are required. There may be other plans of subdivision sub- mitted which fall into the same category and it might be considered improper to categorically refuse approval to these plans because of a commitment made to the ratepayers to refuse to approve all further plans of subdivision pend- ing the development of a District Plan. First of all, no one knows when the Region's Official Plan as it affects Courtice will be approved. This is especially true in light of Progeny Developments request for a referral to The Ontario Municipal Board . It may be considered unfair to existing land owners to freeze all development, especially if the Regional Official Plan is some considerable distance from approval. Council has a duty to act fairly not only with existing residents but also with developers. I am also concerned that by committing to District Planning, the Town implicitly acknowledges that its prior approval of the Courtice Heights Plan was premature. This is not and has not been the position of Council in the past as I understand it. As to the question of withholding approval to any additional subdivision is concerned, I would wish to draw to your attention the fact that it is the Minister of Housing who approves the plans and the Municipality is only one of the approving authorities. The practise has developed that, since the Municipality is such an;important commenting authority, plans are submitted to the local municipalities prior to being submitted to the Minister for approval. I am of the opinion that it is within the Town's power to withold approval to a plan of subdivision on the basis that district planning is required. however, I • would make the general observation that the municipal council has a responsibility not only -tothe, ;existing residents of the community but to all persons who are land owners in the area. In this respect developers are entitled to be assured that the municipality is not acting in an arbitrary 5 or discriminatory way in withholding approval and that its decision to withhold approval of further plans of subdivision is justified on legitimate planning'grounds. 2. Extension of Water and Sewage S stems The water and sewer system is currently within the jurisdiction of the Regional Municipality of Durham and any policy with respect to frontage and connection charges are exclusively within their authority. It is within the power of the municipality to indicate that it is in favour of a policy that would give effect to the suggestion that frontage and connection charges would not be made to existing residents who abut the extended water and sewer services. However, I would observe that doing so Council will have to consider that, if such a policy by the Region is implemented, it will have equal force and effect throughout the whole of the Region. This may have consequences far more reaching than those presently contemplated in the Courtice area. I would further observe that the recent juris- prudence on the question of developers' responsibility with respect to the subject of lot levies and the provision of services external to the subdivision have been severaly curtaiied.and, if any developer objects to the charges he has the right to refer the matter to the Ontario Municipal Board. The recent line of authorities suggest that the Ontario Municipal Board would not endorse the ratepayers proposal that existing residents shall not be charged frontage and connection charges. 3. Street Lighting S depending ontreet whether�oring notmay be streetaliplit jurisdiction on a regional or a local road. My lighting is provided to the frontage and connection chrges are sequallresppll able to the subject of improved street lighting at noplc charge to existing residents. In short, the developer may agree to pay the costs with respect to the provision of such improved lighting but if he does not, the Town must be in a position to establish before the Ontario Municipal Board that such improved street lighting is required and a direct consequence's of the new subdivision. Generally speaking, improved *v- 4. Well Water Damage It is within the power of the Town to request provisions to be incoroporated into the subdivision agree- ment protecting citizens from well water damage as a result of the works undertaken by the subdivider. However, I would point out that there is no direct contractual relation- ship between the individual resident and the developer and the agreement in and of itself cannot be directly relied upon by the home owners to establish a claim against the subdivider. However, it is my view that if there is well water interference as a result of the subdivider's works he is accountable at law for this interference and that the requested protection is not required in the subdivision agreement. 5. Staging It is already contemplated that the provisions will be incorporated in the subdivision agreement pertaining to the subject of staging of development in Plan 18 T-76027. 6. Municipal Storm Drainage Works I am of the view that it would be appropriate for the Municipality to develop a policy with respect to well water interference as a result of municipal storm drainage works. This policy should be given some detailed consideration and perhaps a policy similiar to the Regional policy which was approved by Regional Council on December erlosed 14th, 1977 might be considered appropriate (a copy is for your information). 7. General It is my view that after each of these points have been considered by Council and a decision made with res- pect to each of the points raised that a resolution might be passed. It is my view that a resolution not a);by-law be passed. A by-law i of a .legislative nature whereas I believe that in this c se it is more appropriate to use a resolution to state Council's intentions. I would be pleased to review this matter further with you or Council after they have had an opportunity of considering this letter. Yours ruly, David) J. D. Sims, Q.C. DJDS:mrs Y. 1UNDY, A.M C.T. 4r030-A4Al_ CLI kK A_ THE 1=GIONAL ML NICWAO Y OF DURHAM CU:i3K•SDEPAIUro IvT GO5 IUOSSi_AND ROAD E. p,4.13ox 623, WHITBY, ON 6 A RIO 1.11► 6A3 016) £..1111 1, C. W. Lundy, Clerk of the Regional Municipality of Durham certify that of an excerpt from.the Twenty -Second Report of the fallowing is a true copy the Public Works Committee as adopted by the Council of the Regional Municipality of Durham at a meeting held on the 114th day of December, 1977; "THAT the Policy on Ground WaterRiortialfllorksePR'o�ec�sn�doPtednbyaRoglonal and Excavation Operations on begs rescinded, Council on October 29, 1975, policy be adopted in cases where ground water AND THAT the following 'pY interference has resulted from dewatering and excavation operations on Regional Works Projects: a) Where the interference to a well or privfte eewater+ater supand ply is of bort term duration (i ;e• , during the course wi and `within one month of the completion of dewatering) lthe fRegion water atll snake available to the affected party a temporary supp Y no cost to the affected party. b) Where the interfurenCeto a well orprivate teater eresupplykes y is of 1ongin a term or permanent duration and where .the rn water serviced arca, the affectedparty' will bewii el'err�'quloeco nectkto e the waterwaterslspply System. The affected 1' arttn�•aal"ds the cost of the a payment of $700.00 effective June, 1975 connection from the main the the Street 1 i e and: will be r esponsi bleefor' the full cost of any work necessary on private property. party will not be assessed Regional frontage charges except as outlined in Clause d) . well or private .':iter supply is of .long tcrrn [.) `,Jh,�l'e ihC III i:C'I'fl:!'el1�:13 i.+} 3 . �'ii� takes place O1Jt51de_�� or permanent duration ,:rid where the intp fluence takes hater serviced area, the Region will take whatever ctioterssuAPlyd if .. ,,r ►,,,� ks to restore -_:,a ind..wi l,l ,b•e rnspons ible:; or ihc:`'fu1.) cost of zany �•rork>.I1crc.t'. arY on fir ivrate pr open t.y, W.I.wniin rs e tcnd,ed to service an existing dwell-inc on file proper:' grid t.hc` rffrcted p,;rty is required to connl_ct. to Abe water 'su{:ply •system, Lhe affected party will not be ;1sS..ics,t,Kd fcgional frorrt,age charges except -'as, Outlined in Clonsc -d):" Should tl:irs prr)p1 l'1ty, si rvrced frotit a ti -1:.terrrlain in accordan.cc t.a.ith C1.auses.;b) sl=id' c), .be subdiv1ded in the future, the Rogron'retains the r ,9ht t0f-0p l+; :°t fr.or t<age and c:.r nncct ion charges for, any new lots r.r eat.cid. :.'All' 1 ares shall. beHcalcula"tcd in accordance with Regiolr al Poli..cy + 1s 11ng at the time of the creation of the new lots; ,: The {.ter=ns 'groundwater interference' and 'interference' 'include contamination of the groundv'yater where the contaminationhas resulted from .other than human or a=nimal wastes (e.g., adjacent septic tanks). A water serviced area is an area where a watermarn exists suitable for servicing adjacent property. An area is not a water serviced arca where the watermain has.: not bedn .constructed or where only a trunk or fcedcrrnain, not intended for service connections, exists.'