HomeMy WebLinkAboutSOL-1-99
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v REPORT #5
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
REPORT
Meeting:
COUNCIL
File # 1.. 0/' eO
.
Date:
March 8, 1999
Res. #
Subject:
SOL-I-99 By-law # 19- ::; g
lfq- 3 Cf.
THE REPORT OF MR. HAROLD S. GOLDKIND, Q.C., THE INQUIRY
OFFICER, UNDER THE EXPROPRIATIONS ACT RESPECTING THE
PROPOSED EXPROPRIATION OF COVE ROAD AND CERTAIN OTHER
LANDS AND RIGHTS-OF-WAY AND CONSIDERATION OF THE INQUIRY
REPORT BY COUNCIL
Report #:
RECOMMENDATIONS
1. THAT Report SOL-I-99 be received;
2. THAT Council as the approving authority under subsection 5(1) of the Expropriations Act
having considered the Report of the Inquiry Officer Mr. Harold S. Goldkind, Q.C. and for
reasons set out in paragraph 5.1 of this report, approves the proposed expropriation of Parts
2,5,6,7,8,10,11 and 12 and the rights-of-way in Parts I and 2 on Plan 40R-17895 for the
purposes of reconstruction of the public and privately owned portions of Cove Road, the
construction of a bridge over Westside Creek and approaches to the bridge to connect Cove
Road to Cedar Crest Beach Road, and to establish Cove Road, the bridge and approaches as
a public highway.
3. THAT the Clerk be authorized to cause a copy of the decision and reasons for the decision
of Council to approve the proposed expropriation to be served upon all of the parties as
required by subsection 8(2) of the Expropriations Act.
4. THAT Council pass a by-law to authorize the Mayor and Clerk to execute a Certificate of
Approval on behalf of Council as the approving authority as required by subsection 8(3) of
the Expropriations Act.
5 . THAT Council pass a by-law to authorize the Mayor and Clerk on behalf of the Municipality
to execute a plan of the land the expropriation of which has been approved for registration
in the proper land registry office pursuant to subsection 9(1) of the Expropriations Act.
6. THAT costs of $200.00 be paid to Mr. Gordon Alexander White, costs of$100.00 be paid
to Ms. E. Marsden Barrick and costs of$IOO.OO be paid to Mr. J. Edmund Barrick from the
Pits and Quarries Reserve Fund - Account No. 2900-18-X.
NOTE: The attachments are available in the Clerk's Department.
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Report SOL-I-99
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March 8, 1999
ATTACHMENTS
I. Map showing Berm, Cove and Ramble routes
2. Report #ADMlN-47-97 - Recommendations and Executive SlImmHry
3. Reduction of Plan 40R-I7895
1.0 BACKGROUND
1.1 In December, 1993, at the request of the Municipality and St. Marys Cement Corporation
("St. Marys"), the Waterfront Regeneration Trust ("Trust"), chaired by the Honourable David
Crombie, agreed to help find a resolution of several issues related to St. Marys planned
developments in Clarington including its plan to quarry the Westside Marsh. A licence to
quarry the Westside Marsh has been issued under the Aggregate Resources Act and is
outstanding.
1.2 The Westside Marsh is a significant bird, fish, wildlife and vegetation habitat which the
Province has classified as a Class II Wetland.
1.3 After extensive involvement in the process by the various stakeholders who included the
Municipality, St. Marys and the community, and the publication of an Interim Report in June
1995, the Trust issued its final report entitled ''Westside Marsh Report and
Recommendations" dated November, 1995 ("Trust's Final Report").
1.4 In its Final Report, the Trust described its recommended plan as follows:
. To protect most of the Marsh and achieve "no net loss" in habitat.
. Move CBM Stone Crushing from Waverley Road.
. Create 120-acres of parkland. (Among other things, this would protect the Cove
Commnnity from the possible relocation of the St. Marys crushing operations to a site
owned by St. Marys on West Beach Road and would protect wetland adjacent to the
Bowmanville Marsh.)
. Close and convey a portion ofWaverley Road to St. Marys.
. Clarington would provide an alternative access to the Cedar Crest Beach area by
constructing a bridge over the Westside Creek or a portion of marsh via public
highways to West Beach Road.
Report SOL-I-99
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March 8, 1999
The Trust identified three routes for a connection between West Beach Road and Cedar Crest
Beach Road: the Berm route, the Cove route and the Ramble route. The Cove route
required the acquisition of the privately owned portion of Cove Road, its reconstruction and
the construction ofa bridge over the Westside Creek adjacent to Cedar Crest Beach Road.
The Trust stated that the Cove route appeared to be the most desired, least costly, and least
damaging option. A map showing these routes is contained in Attachment No. 1 to this
report.
1.5 Following the publication of the Trust's Final Report, a staff team led by Mr. WH. Stockwell,
the Chief Administrative Officer, entered into discussions with the other stakeholders
respecting recommendations contained in the Trust's Final Report. These discussions in turn
led in 1997 to intensive negotiations with representatives of Blue Circle Canada Inc. ("Blue
Circle"), which had acquired St. Marys, concerning financial and other issues raised by the
Final Report.
1.6 Mr. Stockwell reported to Council on the negotiations with Blue Circle in Report
#ADMlN-47-97 entitled "Principles of Understanding Between Blue Circle Canada Inc. and
the Municipality of Clarington on the Implementation of the Recommendations of the
Waterfront Regeneration Trust Report on Westside Marsh" and on file with the Clerk. The
comprehensive recommendations contained in this Report were approved by Council at a
Special Meeting on November 3, 1997. They provided for the resolution of a number of
issues with Blue Circle with respect to the Westside Marsh, the selection of the Cove route,
the reconstruction of Cove Road, the construction of an extension of Cove Road and a bridge
and approaches, as well as the closing and conveyance to Blue Circle of a portion of
Waverley Road in exchange for the portion of the marsh to be conserved and certain other
lands. (A copy of the Recommendations and Executive Summary set out in Report
#ADMlN-47-97 are contained in Attachment No.2 to this report.)
1. 7 Most of Cove Road is in private ownership with rights-of-way in it being appurtenant (i. e.
legally attached) to individual lots that had been sold by the original owners of the Cove area.
To implement the Cove route to Cedar Crest Beach Road from West Beach Road, Cove
Road would have to be extended a relatively short distance to the south of its present westerly
terminus parallelling Westside Creek and a bridge would have to be constructed over
Westside Creek to connect the extension of Cove Road to Cedar Crest Beach Road. A
reduction of Reference Plan 40R-17895 which identifies the properties that would have to be
acquired by the Municipality to implement the Cove route project is contained in Attachment
No.3 to this report.
1.8 The Director of Public Works had examined the alternative routes identified by the Trust and
certain modifications to them. He had concluded that the Cove Road route was the preferable
route.
Report SOL-I-99
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March 8, 1999
1.9 At the meeting on November 3, 1997, among other matters, Council approved the execution
of Principles of Understanding between the Municipality and Blue Circle, closed a portion of
Waverley Road, leased a portion of Blue Circle's Haul Road from Blue Circle and dedicated
it as a Temporary Public Highway until Cove Road including a new bridge to be constructed
over the Westside Creek could be acquired, constructed and dedicated as a public highway.
The Principles of Understanding will unwind unless, among other matters, the lands required
for the Cove route including the bridge are acquired by the Municipality before December
31,1999.
1.10 On January 12, 1998, Council approved the recommendations contained in Report
#ADMlN-02-98 and passed By-law No. 98-14. Recommendations 2, 3 and 4 provided:
"2. THAT Council hereby authorizes an application to be made to the Council of the
Corporation of the Municipality of Clarington as the approving authority under
subsection 4(1) of the Expropriations Act, RS.O. 1990, c.E.26, as amended, for the
approval of the expropriation of all interests in the lands more particularly described
in paragraph 2.1, and the rights-of-way described in paragraph 2.1 in Part 1 on Plan
40R-17895, for the purposes of constructing and establish on the aforesaid lands a
public highway including a bridge over the Westside Creek and approaches to such
bridge;
3. THAT Council hereby authorize staff to take all necessary actions to serve notice of
its application for approval to expropriate upon each owner of the lands to be
expropriated and to publish the aforesaid notice in accordance with subsection 6(1)
of the Expropriations Act;
4. THAT Council pass the By-law contained in Attachment NO.2."
1.11 The lands identified in Report #ADMlN-02-98 that were proposed to be expropriated
comprise Parts 2,5,6,7,8, 10, 11 and 12 on Reference Plan 40R-17895. Part 2 comprises
the westerly portion of Cove Road which is privately owned. Part 1 comprises the easterly
portion of Cove Road which is owned by the Municipality. The private rights-of-way
appurtenant to lots in the Cove area in both Part 1 and Part 2 on the Reference Plan, were
also proposed to be expropriated. Parts 9 and 13 on the Reference Plan are owned by Blue
Circle and are to be transferred to the Municipality pursuant to the Principles of
Understanding for a nominal consideration. Their expropriation is not necessary.
1.12 Following Council's approval of Report #ADMlN-02-98, the Clerk submitted the
Municipality's application for approval of the proposed expropriation to Council. Council
is the "approving authority" for an expropriation of land by the Municipality under the
provisions of the Expropriations Act. The Act also provides that Council must formally
approve a proposed expropriation before it can occur.
Report SOL-1-99
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March 8, 1999
1.13 On February 4, 1998 pursuant to subsection 6(1) of the Expropriations Act, the Clerk served
notice of the Municipality's application for approval of the expropriation on the registered
owners concerned, and published it in the Canadian Statesman.
1.14 In response to the notice, Orchards Cove Holdings Limited, the registered owner of Part 2
on Plan 40R-17895, (the privately-owned portion of Cove Road) and Mr. Gordon Alexander
White, Ms. Marion Halloway Richardson, Mr. J. Edmund Barrick and Ms. E. Marsden
Barrick who are the registered owners of certain other lands proposed to be expropriated, and
several owners of rights-of-way in Cove Road requested a hearing by an Inquiry Officer as
to whether the proposed taking of their lands or rights-of-way is fair, sound and reasonably
necessary in the achievement of the objectives of the expropriating authority, that is the
objectives of the Municipality. The registered owners of Parts 9, II, 12 and 13 on
Plan 40R-17895 did not request a hearing.
1.15 The ChiefInquiry Officer, Mr. P. Lockett of the Ministry of the Attorney General appointed
Mr. Harold S. Goldkind, Q.C. as Inquiry Officer to conduct the hearing that had been
requested.
1.16 The hearing took place on eight days. It began on May 6, 1998 and ended on August 24,
1998. Notice of the hearing was given to each owner who had notified the Municipality that
that owner desired a hearing in respect of the lands or rights-of-way intended to be
expropriated. I represented the Municipality at the hearing. Orchards Cove, Mr. White and
Ms. Richardson were represented by their legal counsel, Ms. Gabrielle Kramer. Ms. Barrick
represented herself and acted as agent for several owners of rights-of-way in Cove Road. Mr.
L. Defosse acted as agent for Mr. J. Edmund Barrick. Neither Ms. Barrick nor Mr. J.
Edmund Barrick were represented by legal counsel.
1.17 Mr. Go1dkind's report ("Inquiry Report") was delivered to me on behalf of the Municipality
on February 12, 1999. As is required by subsection 7(6) of the Expropriations Act, it contains
a summary of evidence and arguments advanced by the parties, Mr. Goldkind's findings of
fact, his opinion on the merits of the application for approval and his recommendation as to
the payment of costs of the parties. These are discussed in Sections 2 and 3 of this report.
A copy of the Inquiry Report has been made available to you.
1.18 Subsection 8(1) of the Expropriations Act requires that Council consider the Inquiry Report
and approve or not approve the proposed expropriation, or approve it with such
modifications as Council, as the approving authority, considers proper. Subsection 8(2) of
the Act requires that written reasons be given for Council's decision and that they be served
upon all parties within 90 days after the day on which the Inquiry Report was received. The
purpose of this report is to assist Council in the consideration of the Inquiry Report.
Report SOL-I-99
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March 8, 1999
2.0 THE EVIDENCE BEFORE THE INOUIRY OFFICER
2.1 As is required by the Expropriations Act, the Inquiry Officer heard extensive evidence
produced by the Municipality, Ms. Richardson, Mr. White and his companies, Ms. Barrick
and Mr. Defosse, respectively, concerning the objectives of the Municipality to be achieved
by the proposed expropriations and whether the proposed expropriations are fair, sound and
reasonably necessary in the achievement of the objectives of the Municipality. The
Municipality's witnesses were Mr. David Crome, Mr. RL. (Ric) Symmes (of the Trust), Mr.
Stephen Vokes, Mr. Donald Wright (CLOCA's Director of Environmental Approval and
Planning) and Mr. Perry Sisson (CLOCA's Director of Engineering). Mr. White testified on
his own behalf and on behalf of the companies controlled by him and Ms. Richardson. The
Inquiry Officer also heard testimony from Ms. Barrick and Mr. Defosse as well as from Ms.
Mavis Carlton and Ms. Leah Houston who were called as witnesses by Ms. Barrick.
2.2 The Inquiry Report fairly and accurately summarizes the evidence and arguments advanced
by the Municipality and the other parties to the Inquiry. For your assistance I have prepared
the following brief outline of the evidence, and the findings and opinions of the Inquiry Officer
set out in the Inquiry Report.
2.3 Mr. Crome gave extensive evidence concerning the Cove Road and Cedar Crest Beach Road
areas, Blue Circle's land holdings and operations in Bowrnanvi1le, conflicts between Blue
Circle and the residents of the two areas, the ecological importance of the Westside Marsh,
the existing licence of Blue Circle to quany much of the Westside Marsh and the probable
impacts of such quanying on the marsh and the co=unities, the Trust's Interim and Final
Reports and the consultative process established by the Trust, the content of the Principles
of Understanding between the Municipality and Blue Circle dated November 3, 1997, the
proposed Management Agreement between the Municipality and CLOCA which is
contemplated by the Principles of Understanding, the objectives of the Municipality in seeking
approval of the proposed expropriation, and the approvals of external agencies that had been
obtained in respect of the undertakings. Mr. Crome testified as to the works necessary to
implement the Principles of Understanding respecting Westside Creek, Westside Marsh and
the proposed Cove route, the applicable provisions of the Official Plan and the Zoning By-
law, and the impacts of the proposed expropriation on the lands of the affected registered
owners. He also testified that in his opinion the proposed expropriation is fair, sound and
reasonably necessary in the achievement of the objectives of the Municipality.
Report SOL-I-99
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March 8, 1999
2.4 Mr. R.L. (Ric) Symmes gave evidence as to the studies conducted by the Trust, its
investigation of the Berm route, the Cove route and the Ramble route, the cORtent of the
Trust's Interim and Final Reports, the Trust's recommendations as to actions to be taken by
the Municipality and Blue Circle to conserve a significant part of the Westside Marsh and to
exchange certain lands. He also testified that the Trust had established working groups of the
stakeholders including the residents of the Cove Road and Cedar Crest Beach areas to
examine the principal issues with the assistance of the consultants and that their work assisted
the Trust in preparing the Final Report. In addition, Mr. Symmes reviewed the Trust's
consideration of the Berm route, the Cove route and the Ramble route and the impact of
blasting on wells in the Cedar Crest Beach area.
2.5 Mr. Vokes gave detailed evidence as to the advantages and disadvantages of each of the Berm
route, the Cove route and the Ramble route and certain modifications of them that he had
prepared. He gave the basis for his opinion that the Cove route was the preferred route and
his recommendation that it should be selected by Council. He provided evidence concerning
the design and impact of the proposed Cove Road works including the bridge and approaches
as well as private connections to the Spur Roads which run north from Cove Road and the
properties which will abut the works. He testified that acquisition of the Spur Roads is not
part of the Municipality's objective of providing access to Cedar Crest Beach Road.
2.6 Mr. Wright gave evidence concerning O.Reg. 145/90 which established the Regional floodline
and CLOCA's "Fill and Construction Regulations" as they apply to the Cove Road and Cedar
Crest Beach areas and as to their impact respecting residential construction. He testified as
to the proposed Westside Marsh Creek diversion, the consequence of reducing the area of the
marsh, and water quality in the Westside Creek. He stated that since the same amount of
water which is to be maintained at predevelopment levels, will flow into the reduced area
reconfigured Westside Marsh, the frequency of turnover of water in the marsh will be
increased. However, the increase will be accommodated by means of a proposed engineered
outlet channel from the south-west of reconfigured Westside Marsh to Lake Ontario, and not
via more frequent breaches in the barrier beach to Lake Ontario than at present.
Report SOL-I-99
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March 8, 1999
2.7 Mr. Defosse testified that in his opinion the Municipality did not adequately investigate the
base of Cove Road with regard to reconstructing it as a stable road. He predicted that the
reconstructed road would require frequent maintenance. He testified that he thought that the
road construction would result in the loss of more trees than predicted by the Municipality
and the report of its engineers. With respect to the Cove route being the shortest route to
Cedar Cre~ Beach Road in comparison to the Ramble route, he testified that emergency and
other vehicles must travel a longer distance on West Beach Road to get to and from Cove
Road and that the distance travelled on both the Cove route and the Ramble route were the
same. He also testified that in his opinion the reconstructed and extended Cove Road and
bridge will result in marsh water being backed up and diverted away from Lots 9, 10 and II
on Plan 198 thereby making these lots more suitable for buildings. (Inquiry Report, pp. 70 and
71)
2.8 Mr. Defosse's evidence as to the Cove route selected by the Municipality, the stability of
Cove Road, the number of trees that would be lost, and the possible effect of the proposed
bridge and Cove Road to dam up marsh water was contrary to the evidence of Messrs.
Vokes, Sisson and Wright. The Inquiry Officer preferred the evidence of Messrs. Vokes,
Sisson and Wright to the evidence of Mr. Defosse on these issues.
2.9 Ms. Barrick testified that she objected to the Cove route and the method of its selection. She
expressed the opinion that the Berm route is the best route because it will rest on a berm
which must be constructed in order to separate the marsh from the quarry and that there is
no requirement for a bridge at the lower end of the marsh which will result in the loss of a
frog pond and gentian and cingfoil plants in the marsh. She argued that the Municipality
should have negotiated a better agreement with Blue Circle to preserve more of the marsh.
(Inquiry Report, p. 72)
2.10 Ms. Leah Houston was called as a witness by Ms. Barrick. She expressed the opinion that
there was not enough investigation by the Trust with respect to selecting a route to replace
the Waverley Road access to the Cedar Crest Beach community. However, she
acknowledged that the Municipality recognized the importance of the Westside Marsh and
there were limitations on what it could do with regard to saving the Westside Marsh. (Inquiry
Report, p. 69)
Report SOL-I-99
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March 8, 1999
2.11 Ms. Mavis Carlton was also called as a witness by Ms. Barrick. She testified that the Blue
Circle dock is causing erosion of the beach in part of the Cove and Cedar Crest Beach
communities. She expressed the view that the working group set up by the Trust did not
receive enough information on which to select the best route. She stated that she did not
want Cove Road made into a public road because of the increase in traffic. However, Ms.
Carlton testified that she supports the Principles of U derstanding even though she does not
favour the Cove route because as a package, the agr ement is in the long-term best interest
of the community since it saves the marsh and provi es additional greenbelt land. (Inquiry
Report, pp. 63 and 64)
2.12 Mr. White testified that his principal objection to th proposed expropriation was that the
Municipality's objective is too narrow and that re land than that proposed by the
Municipality should be acquired for the project fro Mr. White, his companies and Ms.
Richardson. Mr. White proposed that the Municipal ty acquire from him or his companies
the portion of Cove Road comprising Part 2 on Plan 4 R-17895, the two Spur Roads running
north from Cove Road (Parts 3 and 4 on Plan40R-17 95) all of Lots 12 and 13 on Plan 198
(instead of only the portion required for the propose Cove Road construction, bridge and
extension works) and part ofunsubdivided Lot 12 .F.C. (which includes the bottom of
Westside Creek to Lake Ontario instead of only the portion proposed to be expropriated
being the area required for the bridge) and a strip of! d on the west limit of Lot 12 B.F. C.
on the south side of Cedar Crest Beach Road also 0 ned by Mr. White.
2.13 Mr. White's counse~ Ms. Kramer, argued that the Municipality should acquire the two Spur
Roads, or parts of them for proper gradual grading into Cove Road, Ms. Kramer argued that
the Spur Roads should be converted into public roads so that "all of the lots in the Cove
community will have equally suitable public road access." (Inquiry Report, pp.98 and 99)
2.14 Ms. Kramer also argued that the reconfiguration of the Westside Marsh ''will result in an
uncertain and unpredictable functioning of the marsh at its lower end and outlet, and an
unpredictable effect on her client's Lots 12 and 13 (including the beach) on Plan 198 ... (and)
that the Municipality should acquire these lots since the Municipal project may change the
nature of these lots and accordingly, the Municipality should assume the risk of any changes
on her client's adjacent land." (Inquiry Report, p. 99)
2.15 In his evidence Mr. Vokes had testified that none of the lots affected by the proposed
expropriation would be landlocked and that it will be possible to provide road access to
driveways that may be constructed on them. (Inquiry Report, pp. 51 and 52)
Report SOL-1-99
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March 8, 1999
2.16 Mr. Vokes also had testified that the acquisition of the two Spur Roads was not part of the
Municipality's objective of providing access to Cedar Crest Beach Road, and that the
Municipality's policy was that it would only take over private roads if they are conveyed to
the Municipality in a condition which meets Municipal standards for a public road. The
estimated cost of bringing the Spur Roads up to Municipal standards is about $300,000.00.
Further, Mr. Vokes testified that with Mr. White's consent the Municipality would regrade
about a quarter of the westerly Spur Road to provide a more gradual slope to the elevation
of the reconstructed Cove Road the elevation of which will be lowered by about 1/2 metre
in front of the road. If Mr. White did not give his Consent, Mr. Vokes said that the transition
between the grades could be effected within the Cove Road right-of-way "but with a steeper
and less desirable slope". (Inquiry Report, pp. 53 and 54)
2.17 The Inquiry Officer accepted Mr. Vokes' evidence. He found that the improvement of the
Spur Roads is not essential to the existence or safe operation of Cove Road and that within
the Cove Road right-of-way the intersection can be made safe, and acceptable grading and
integration can be accomplished. (Inquiry Report, p. 100)
2.18 With respect to the issue raised by Mr. White of the effect of the proposed reconfiguration
of the Westside Marsh on Lots 12 and 13 (including the beach) on Plan 198 and the portion
of Lot 12 B.F.C. owned by Mr. White, Mr. Sisson testified as to how the reconfigured marsh
was designed to function and as to the expert studies that had been done. (Mr. Sisson's
evidence is summarized at pages 73 to 79 of the Inquiry Report.) Mr. Sisson stated that the
objective ofCLOCA "is to maintain the water level in the marsh in pre-project condition at
all times, so that the project has no effect on barrier beach and minimal effect on the marsh."
Further, contrary to the evidence of Mr. Defosse, he gave his opinion that the bridge would
not act as a dam to block water flow in the marsh because of its clearance above the water.
2.19 The Inquiry Officer found that Mr. Sisson's evidence was not challenged by the other expert
evidence, nor upset on cross-examination. (Inquiry Report, p. 99)
2.20 The Inquiry Officer accepted Messrs. Sisson's and Wright's evidence respecting the effect of
the project on the reconfigured Westside Marsh and on the adjacent lands of Mr. White and
Ms. Richardson. (Inquiry Report, pp. 101 and 105)
3.0 OTHER FINDINGS AND OPINIONS OF THE INOUIRY OFFICER
3.1 The Inquiry Officer found that the immediate objective of the Municipality is to establish a
public highway from West Beach Road to Cedar Crest Beach Road in order to provideahighway access to the Cedar Crest Beach Community. This objective is part of the
Municipality's broader objective to acquire a major portion of Wests ide Marsh from Blue
Circle and retain it as a marsh. (Inquiry Report, p. 80)
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Report SOL-I-99
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March 8, 1999
3.2 The Inquiry Officer also made a number of findings of fact consistent with the Municipality's
evidence respecting the background to the work of the Trust and its Interim and Final
Reports, Blue Circle's landholdings operations and significance to Clarington, community
concern respecting the possible relocation of the CBM operation to Blue Circle's land on
West Beach Road, the Principles of Understanding between the Municipality and Blue Circle,
the selection of the Cove route and its impact, the lands required for the Cove Road and
bridge project, the objections of Mr. White on his behalf and that of his companies and Ms.
Richardson, and the operation of the reconflgured Westside Marsh and Creek. These are set
out at pages 81 to 106, inclusive, of the Inquiry Report.
3.3 The Inquiry Officer expressed the following opinions. First, the Principles of Understanding
save a Provincially significant marsh and recognizes the legitimate rights of Blue Circle - a
significant employer and taxpayer in the Municipality - to carry on its business which is
dependent on an adequate supply of acceptable limestone. Second, the Cove route including
the bridge is not only the cheapest and shortest route to construct but it also represents minor
property impact and the least potential environmental impact. Third, the Municipality
requires the lands and interests therein that it seeks to expropriate in order to construct and
convert Cove Road into a public road and to erect a bridge linking the new Cove Road to the
Cedar Crest Beach area.
3.4 The Inquiry Officer concluded that the Municipality's actions are reasonably defensible and
that the proposed taking of lands or any part thereof by the Municipality is fair, sound and
reasonably necessary in the achievement of the objectives of the Municipality as the
expropriating authority. (Inquiry Report, pp. 107 to 109, inclusive)
4.0 COSTS
4.1 With respect to costs, the Inquiry Officer recommended that the Municipality pay costs as
provided under the Expropriations Act. He left the amount of costs and the basis on which
costs are paid to the discretion of the Municipality.
4.2 Subsection 7(10) of the Expropriations Act authorizes the Inquiry Officer to recommend to
Council that a party to the inquiry be paid a fixed amount of costs not to exceed $200.00.
However, Council is not obliged to accept the recommendation.
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Report SOL-1-99
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March 8, 1999
5.0 CONCLUSIONS AND RECOMMENDATIONS
5.1 The Inquiry Officer conducted a lengthy hearing into the proposed expropriation. He
carefully summarized the evidence that was adduced by the parties and correctly made
findings of fact based on the evidence. His central finding and opinion that the proposed
expropriation of Parts 2, 5, 6, 7, 8, 10, II and 12 and the rights-of-way in Parts 1 and 2 on
Plan 40R-17895 is fair, sound and reasonably necessary in the achievement of the objectives
of the expropriating authority are consistent with and are required by the evidence that was
adduced at the hearing.
5.2 I recommend that Council as the approving authority under subsection 5(1) of the
Expropriations Act having considered the Report of the Inquiry Officer Mr. Harold S.
Goldkind, Q.c. and for the reasons set out in paragraph 5.1, approve the proposed
expropriation of Parts 2, 5, 6, 7, 8, 10, II and 12 and the rights-of-way in Parts I and 2 on
Plan 40R-17895 for the purposes of reconstruction of the public and privately owned portions
of Cove Road, the construction of a bridge over Westside Creek and approaches to the bridge
to connect Cove Road to Cedar Crest Beach Road, and to establish Cove Road, the bridge
and approaches as a public highway.
5.3 With respect to costs to be paid to the parties, I recommend that $200.00 be paid to Mr.
Gordon Alexander White to assist in defraying his costs and those of the companies that he
controls and Ms. Richardson's participation in the hearing. I also recommend that $100.00
be paid to Ms. E. Marsden Barrick to assist in defraying her costs of participating in the
hearing. Since Mr. L. Defosse acted as agent for Mr. 1. Edmund Barrick, I recommend that
$100.00 be paid to Mr. 1. Edmund Barrick to assist in defraying his costs of participating in
the hearing. The Treasurer advises that the funds for this purpose should be drawn from the
Pits and Quarries Reserve Fund (Account No. 2900-18-x).
5.4 I recommend that the Clerk be authorized to cause the decision and reasons for the decision
of Council to approve the proposed expropriation to be served upon all of the parties as is
required by subsection 8(2) ofthe Expropriations Act.
5.5 I recommend that Council pass a by-law to authorize the Mayor and Clerk to execute a
Certificate of Approval as required by subsection 8(3) of the Expropriations Act on behalf of
Council as the approving authority under the Act.
5.6 I also recommend that Council pass a by-law to authorize the Mayor and Clerk on behalf of
the Municipality to execute a plan of the land the expropriation of which has been approved
for registration in the proper land registry office pursuant to subsection 9(1) of the
Expropriations Act.
.
,
Report SOL-I-99
- 13 -
March 8, 1999
5.7 If Council approves the proposed expropriations, they will be completed by the registt:ation
in the proper land registry of a plan of the lands which are expropriated. The plan must be
registered within 3 months after approval to expropriate has been given. Title is transferred
to the Municipality on the registration of the plan and the owners' rights are converted by the
Act from rights in the lands expropriated to rights to be paid at market value compensation
and compensation for any damage suffered by injurious affection of the lands. However, the
Municipality cannot obtain possession of the lands expropriated until notices are served on
the registered owners concerned of the expropriation and requiring possession of the lands
expropriated to be given to the Municipality on a specified date which shall be at least 3
months after the date of service of the notice of possession. Also, subsection 25( 1) of the Act
requires that the expropriating authority within 3 months after registration of the
expropriation plan and before taking possession of the land which is expropriated, serve upon
the registered owner an offer of an amount in full compensation for the owner's interest and
offer immediate payment of 100% of the amount of the estimated market value of the owner's
interest.
Respectfully submitted
Dennis C. Hefferon, Solicitor
DH/ms
Attachments
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THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
DN: ADMIN-47.97
REPORT
Meeting:
Council
File #
.1 , ,'Z
Date:
Monday, November 3, 1997
Res. #
Report #:
Subject
ADMIN-47-97 File #: By-law # q7~2 :)0-7
PRINCIPLES OF UNDERSTANDING BETWEEN BLUE CIRCLE CANADA iNC. AND:Y/' - ",51
THE MUNICIPALITY OF CLARINGTON ON THE IMPLEMENTATION OF THE
RECOMMENDATIONS OFTHE WATERFRONT REGENERATION TRUST REPORT ON
WESTSIDE MARSH
Recommendations:
It is respectfully recommended to Council the following:
1. THAT Report WD-64-97 be lifted from the table and received for information;
2. THAT Report ADMIN-47-97 be received;
3. That the Principles of Understanding between Blue Circle Canada Inc. ("Blue Circle")
substantially in the form and content of Attachment #4 be approved and that the Mayor
and Clerk be authorized to execute the Principles of Understanding on behalf of the
Municipality;
4. That subject to the Director of Public Works advising Council that the extension of the
haul road has been connected to Waverly Road to his satisfaction and the portion of the
haul road identified in Attachment #2 to this report is in a condition appropriate for a
public highway, Council approve the Lease of the land for the Temporary Public Highway
from Blue Circle to the Municipality and authorize the Mayor and Clerk to execute the
Lease on behalf of the Municipality substantially in the form and with the content of
Attachment #9;
5. That Council pass a by-law dedicating the Temporary Public Highway in accordance with
the Principles of Understanding;
6. That notwithstanding Section 7 of By-law 95-22, Council pass a by-law declaring
Proposed Closure Area A and the abutting reserves as defined in the Principles of
Understanding to be surplus pursuant to Section 193 of the Municipal Act;
7. That following the dedication of the Temporary Public Highway, as a public highway,
Council pass a by-law to close that portion of Waverly Road identified as Proposed
Closure Area A and authorize the conveyance of it and the abutting reserves to Blue
Circle in accordance with the terms of the Principles of Understanding;
8. That Council authorize staff to take all necessary actions to obtain the senior government
approvals referred to in the Principles of Understanding;
REPORT ADMIN-47-97
PAGE 2
9. That conditional on the payment to the Municipality of $707,800.00 by Blue Cirde Canada
Inc. on the Closing Date as defined in the Principles of Understanding and payment by
Blue Cirde Canada Inc. of not less than $70,000.00 to CLOCA or not less than
$94,500.00 to the CLOCA Foundation, Council:
(i) appropriate $691,800.00 comprising $375,000.00 from Account 2900-18-X (Pits
and Quarries Reserve) and $316,800.00 from Account 5001-6-X (Roads Capital
Reserve Fund) for the reconstruction of Cove Road, the construction of the
Westside Creek Bridge and the improvements to the Blue Circle Haul Road;
(ii) transfer $100,000 from Account 2900-18-X (Pits and Quarries Reserve) to a
reserve fund to be established for the preparation and implementation of a
management plan for the Westside Marsh and Bowmanville Marsh wetland
complex;
(iii) approve the payment of one-half of all government fees and taxes up to $5,000
payable on the registration of transfers to CLOCA, such monies to be
appropriated from Account 2900-18-X (Pits and Quarries Reserve); and
(iv) approve the payment of additionai costs associated for consulting, legal and any
additional studies required from the Contingency Account 7007-X-298 (best
estimate approximately $75,000.).
10. That staff report back on the status of negotiations for the acquisition of interests in land
required for reconstruction of Cove Road, the construction of the Westside Creek Bridge
and approaches to them;
11. That Council direct that notwithstanding By-law 94-129 as amended (the Purchasing By-
law) the tender documents for the reconstruction of Cove Road and the construction of
the Wests ide Creek bridge and the accesses to it shall require that aggregate and
concrete be purchased from Blue Cirde at prices not to exceed then current market
prices for these products in the Municipality;
12. That Council approve the making of a management agreement between the Municipality
and CLOCA respecting the future public lands identified in the Principles of
Understanding which are to be transferred to CLOCA addressing among other matters,
the issues set out in Attachment #6 and pass a by-law to authorize the Mayor and Clerk
to execute the same on behalf of the Municipality;
13. That Council approve Modification #170 to the Clarington Official Plan as contained in
Schedule "M" of the Principles of Understanding as contained in Attachment #4 to this
report and that the Region of Durham be requested to:
. approve the portion of the modification related to the Cove residential
area; and
· defer approval of portion of the modification related to the Blue Cirde
lands until the Temporary Public Highway referred to in the Principles of
REPORT ADMIN-47-97
PAGE 3
Understanding is closed as a public highway and the Lease of the
Temporary Public Highway is released to Blue Circle;
14. That the Region of Durham be requested to modify the Durham Regional Official Plan as
contained in Schedule "L" of the Principles of Understanding as contained in Attachment
#4 and request the approving authority under the Planning Act not approve the same
until the Temporary Public Highway referred to in the Principles of Understanding is
closed as a public highway and the Lease of the Temporary Public Highway is released
to Blue Circle;
15. That the Rt. Hon. David Crombie and the Waterfront Regeneration Trust be requested to
obtain assistance from the Province of Ontario or other sources to provide matching
funding for the preparation and implementation of a environmental management plan for
the enhancement of the provincially significant wetland functions in the Westside
Marsh/Bowmanville Marsh complex on the basis of matching funding; and
16. That Council approve the content of the letter contained in Attachment #5 to Blue Circle
Canada Inc. that conditional on satisfaction of the conditions set out in it the Municipality
would not object to an Increase in the maximum amount of the annual tonnage that may
be extracted from the quarry from 3 to 4.5 million tonnes;
17. That conditional on the actions required to be undertaken prior to and on the "Closing
Date" as defined in the Principles of Undertaking being completed, staff be authorized to
undertake all necessary steps to implement the Principles of Understanding including but
not limited to:
. the preparation of working drawings, specifications and tender documents as well
as calling tenders for the construction and installation of the Cove Road
improvements and the Wests ide Creek bridge;
· the holding of a public meetings to consider the amendments to the zoning by-
law referred to in the Principles of Understanding;
18. THAT Blue Circle Canada Inc., the Port Darlington Community Association, the Waterfront
Regeneration Trust, Central Lake Ontario Conservation, Ontario Hydro, the Region of
Durham Planning Department and the interested parties listed in this report be advised
of Council's decision.
REPORT ADMIN-47-97
PAGE 4
EXECUTIVE SUMMARY
1. Municipal staff and Blue Circle have been meeting to settle the terms of the Principles of
Understanding to implement the recommendations of the Waterfront Regeneration Trust
regarding Westside Marsh. The details on the background to the negotiations are
contained in Section 1 of this Report.
2. At recent meetings of Committee and Council, residents have raised a number of
concerns with respect to the proposals. While many residents appear to support the
principles of the arrangement, a number of specific issues of concern have been raised
and certain individuals have objected to the proposed solution. These are outlined in
Section 2 of this report.
3. The main elements of the Principles of Understanding contained in Sections 3-10 of this
report are summarized below:
SUMMARY OF MAIN ELEMENTS OF PRINCIPLES OF UNDERSTANDING
Item Blue Circle Municipality of Clarington
Closure and It is the intention of the parties that the '
Conveyance of Municipality will close Waverly Road in two
Waverly Road stages. Closure Area A (southerly 1.36 ha)
will be closed and conveyed prior to the
Closing Date. It is the intention that Closure
Area B (the northerly 0.57 ha) will be closed
and conveyed to Blue Circle after the Cove
RoadiWestside Creek Bridge works are
completed and dedicated as a public
highway.
Temporary Public Blue Circle will improve and lease a The Municipality will credit Blue Circle for
Highway portion of their haul road and its one half of the costs of the road
extension to Waverly Road to the improvements for the temporary road at the
Municipality for nominal consideration time of Closing.
until such time as Cove Road is
reconstructed and Westside Creek
Bridge is constructed and both are
dedicated as public highways.
Conveyance of Lands At the closing date, Blue Circle will The Municipality will close and convey 0.74
to CLOCA convey approximately 43 acres of lands acres of Waverly Road to CLOCA.
comprising portions of the Bowmanville
Marsh, valleylands and the Marsh Link
Area. Blue Circle will also convey in
escrow approximately 67.5 acres of the
Reconfigured Marsh. The conveyance of
these lands will be completed upon the
closing of the Temporary Public Highway
and the release of the Lease of it to Blue
Circle. Certain easements will also be
transferred to CLOCA.
REPORT ADMIN-47-97
PAGE 5
Item Blue Circle Municipality of Clarin9ton
Westside Creek Blue Circle will construct the creek
Diversion diversion at its cost. The diversion works
include the construction of an overflow
channel to provide flood relief.
Fisheries Habitat Blue Circle will construct fisheries habitat
Compensation compensation works at its cost.
Bridge and Road Blue Circle will contribute $707,800. The Municipality will construct the bridge
Construction towards land acquisition, bridge and road and road improvements for an estimated
construction works. cost of $1.4 million dollars.
Land Acquisition for The Municipality is responsible for acquiring
Bridge and Road Cove Road and the lands needed for the
Works bridge. The appraised land costs have
been included in the cost-sharing
arrangements. Any additional costs would
be borne by the Municipality.
Emergency Route Blue Circle will licence to the Municipality
an emergency route to and from Highway
401 for fire, and other emergency
vehicles and for residents in the event of
a flood. The route would utilize internal
haul roads and be relocated from time to
time in accordance with Blue Circle's
operations.
Aggregate Supply The Municipality will purchase all aggregate
and concrete required for the Cove Road
and bridge construction from Blue Circle at
market prices.
Fisheries Agreement Blue Circle, CLOCA, the Ministry of
Natural Resources and the Department of
Fisheries and Oceans will sign a Letter of
Intent which will detail the works to be
done, timing of construction, and
monitoring activities.
Maintenance and Blue Circle will enter into agreements
Monitoring Agreement with CLOCA and Ontario Hydro regarding
the issues of the stability of the
channelization works, liability, monitoring
program, maintenance procedures and
costs.
Management Blue Circle will contribute not less than The Municipality and CLOCA will have a
Agreement either $70,000 to CLOCA or $94,500 to joint management agreement for the lands.
the CLOCA Foundation for start-up costs. The Municipality will contribute $100,000
towards the start-up costs.
REPORT ADMIN-47-97
PAGE 6
Item Blue Circle Municipality of Clarington
Waterfront Trail Blue Circle will relocate a portion of the
waterfront trail at its cost and ensure that
it will generally be open between April 1
and October 31 st during the construction
period.
Security Fence Blue Circle will install a 6 ft. high chain
link security fence around the perimeter
of their lands once they commence
quarrying east of Waverly Road.
Official Plan Blue Circle will not object to modifications The Municipality will proceed to adopt
to the Durham and Clarington Officiai modifications to the Clarington Official Plan
Plan provided that the approval is and request modification to the Regional
withheld until the Temporary Public Official Plan.
Highway is closed and the Lease is
released to Blue Circle.
Zoning By-law Blue Circle will not object to the passing The Municipaiity will proceed to enact two
of two zoning by-laws, the latter to be zoning by-laws to rezone the lands EP. The
enacted oniy after the lease on the haul first by-law would be enacted as soon as
road is surrendered. possible. The second by-law is affected by
the existing aggregate licence and would be
enacted only after the licence is amended
and the lease on the temporary haul road is
released.
4. The financial arrangements provide for an equal sharing of the anticipated total
cost of acquiring lands, construction of roads and bridges and funding the start-up
costs for CLOCA to manage the wetland. Due to timing requirements and tax
considerations, the costs have been apportioned as follows:
Total
Clarington Blue Circle
Share Share Total
691 ,800. 707,800. 1 ,399,600.
O. 14,000. 14,000.
100,000. 70,000. ' 170,000.
$791,800. $791,800. 1,583,600.
5,000. 5,000. 10,000.**
$796,800. $796,800. $1,593,600.
Municipal Land Acquisition and Construction
Blue Circle Haul Road Improvements
CLOCA Management Plan and Start Up Costs
Subtotal
Land Transfer Tax
* $94,500. if donation made to CLOCA Foundation
'*Estimate only
REPORT ADMIN-47-97
PAGE 7
1. BACKGROUND
1.1 Overview
The Westside Marsh is a provincially significant wetland, the majority of which is currently
licensed for extraction by Blue Circle Canada Inc. (see Attachment #1) As well, the
Marsh borders on approximately 50 dwellings on Cedar Crest Beach Road and Watson
Drive, and is also adjacent to a number of dwellings in the Cove Road area, which is a
private road. The Westside Marsh is highly valued by these residents, as well as by
regional and local naturalists.
Blue Circle Canada Inc. ("Blue Circle" formerly 8t. Marys Cement) holds a license to
quarry limestone on a 252.38 ha parcel on the waterfront. The licensed area is also
bisected by Waverly Road, which is owned by the Municipality, and provides road access
to the residences on Watson Drive and Cedar Crest Beach Road. Blue Circle also owns
several smaller parcels, including a portion of the Bowmanville Marsh, which are not
licensed for extraction.
The Westside Marsh is provincially significant for several reasons:
. as an example of old dune succession;
. as an example of dynamic beach flora; and
. as an example of fen-like habitat which does not occur anywhere else in Durham
Region and is considered provincially rare.
In addition, Westside Marsh is in a unique position receiving relatively little impact over
the years. The bird community numbers in excess of 250 species, including many
regionally rare and some provincially significant birds. The wetland vegetation is the
most diverse of all of the marshes in Durham in terms of its flora which includes 16
regionally rare species. While much of the wetland will be retained, the loss of the north
end of wetland represents the loss of a significant breeding bird population, a vibrant
plant community, and amphibian breeding grounds.
1.2 Waterfront Regeneration Trust Process
1.2.1 In December 1993, the Waterfront Regeneration Trust, at the request of the Municipality
and Blue Circle, agreed to help resolve the numerous issues related to Blue Circle
REPORT ADMIN-47-97
PAGE 8
operation on the Lake Ontario Waterfront, including their plans to quarry the Westside
Marsh.
1.2.2 In December 1994, three public discussion sessions were held in Clarington to increase
public understanding of Blue Circle plans and explore any practical alternatives that
provided for both the long term viability of Blue Circle's operations and the preservation
of the greatest portion of the wetland possible.
1.2.3 On April 5, 1995 the Trust held a fourth public discussion session to outline its proposal
on a concept to resolve the primary issues and receive public comments. This was
documented in an Interim Report dated June 1995.
1.2.4 The Trust invited a number of interested parties, including local residents, naturalists, the
Ministry of Natural Resources, the Central Lake Ontario Conservation Authority and the
federal Department of Fisheries and Oceans, to participate in two workgroups to consider
habitat issues and other community concerns related to Blue Circle's plans. These
workgroups met regularly through the summer and "fall of 1995 to explore issues and
review information, and to assist the Trust in the development of options for resolving the
various issues.
1.2.5 In November 1995, the Trust released a report entitled Westside Marsh - Report and
Recommendations in which they presented a concept for the preservation of the Westside
Marsh. The major recommendations provided in the Report are as follows:
. The "limit of extraction" available to Blue Circle on the Westside Marsh is to be
shifted to the north. This would allow a major portion of the existing Westside
Marsh to be retained. This would also provide for an increased buffer zone
between the waterfront communities and the quarry.
. The remnant wetland should be enhanced and augmented with additional habitat
on site or in nearby marshes to achieve "no net loss" overall as a result of the
quarrying activities.
· The Municipality should close and transfer Waverly Road to Blue Circle, thereby
allowing the company to quarry the limestone under the road allowance as well
as within the required extraction setbacks (30 metres on either side).
· The Municipality should provide a new road access to Cedar Crest Beach Road
by constructing a bridge and road connections to West Beach Road. The Trust
REPORT ADMIN-47-97
PAGE 9
supported the use of Cove Road as the most direct, least costly and least
damaging option.
. Wests ide Creek would be diverted so that it flows through the Ontario Hydro
transmission corridor to the north of the Marsh and empties into the east side of
the retained Marsh. The diversion was to be constructed on natural stream
principles.
. Blue Circle should convey the retained portion of the Marsh, industrially-zoned
land to the north of the Cove Community and other smaller land holdings to a
public agency to create a community-controlled parkland linking with the existing
Bowmanville Marsh. This would create 120 acres of additional parkland.
. The Municipality should provide an industrial location for Blue Circle to allow for
the relocation of the CBM stone crushing and concrete batching plant.
. Blue Circle should set up a Community Relations Committee
. Representatives of the local community, Blue Circle, Clarington and CLOCA
should form a Steering Committee to develop an environmental management
plan, co-ordinate education and volunteer involvement and provide advise.
. The Waterfront Regeneration Trust, Clarington and the local community should
assist CLOCA to find the necessary resources to carry out management and
planning activities.
1.3 Implementation of Trust Proposal
1.3.1 In July 1996, Council authorized Staff to initiate negotiations with representatives of Blue
Circle regarding the closure and conveyance of Waverly Road, and the transfer of the
retained Marsh and other lands to a public agency. As well, in order to continue public
access to Cedar Crest Beach Road once Waverly Road is closed, Council agreed to take
public ownership of Cove Road and to build a bridge over the mouth of the Marsh to
connect the two roads.
1.3.2 The following actions were undertaken subsequently:
· Staff initiated negotiations with the owners of property on both the east and west
sides of the mouth of the Marsh to acquire the necessary lands to build the
bridge and road approaches.
· Cornwall Property Consultants Ltd. was retained to undertake an appraisal for the
portion of Waverly Road to be closed and conveyed to Blue Circle.
REPORT ADMIN-47-97
PAGE 10
. Bird and Hale Limited was retained to undertake a scoped environmental study
to determine the environmental impacts related to the construction of the bridge
and road approaches. This report, completed in November 1996, indicates that
there are no serious impacts on the natural environment resulting from the
location and construction of the bridge and road approaches. The Report
recommends a number of mitigative measures to reduce or eliminate the potential
impacts.
. Totten Sims Hubicki was retained by the Municipality to undertake an engineering
study to determine the final design and location of the bridge crossing and road
approaches, including the necessary upgrades to Cove Road.
. Two public information centres and a public meeting were held as follows:
i) A Public Information Centre was held on February 18, 1997 to present and
discuss the findings of the Environmental Impact Study with consultants
and Staff.
ii) A second Public Information Centre was held on September 4, 1997 to
provide information relating to the location and design of the bridge, the
road improvements for Cove Road and the approaches on the east side
of the Marsh. Notice of both Information Centres was provided to all
residents of the waterfront communities adjacent to the Marsh.
iii) A Public Meeting was held on September 29, 1997 on the application to
close and convey a portion of Waverly Road to Blue Circle and to dedicate
the Haul Road and its extension as a temporary public highway.
2. RESIDENT'S COMMENTS:
2.1 At the September 29, 1997 Public Meeting respecting the closure of Waverly Road a
number of residents raised questions and voiced concerns related to the road closure
and other aspects of the proposal. Subsequently, on October 6, 1997, a report was
presented to the GPA addressing concerns related to the road closure (WD-64-97). At
that meeting, more questions were raised by concerned residents.
The following summarizes questions and concerns raised by the residents, each are
followed by staff's response.
What are the health effects resulting from the aggregate operations (ie noise, dust
and vibrations)?
The operation of the quarry can create a number of nuisances which are
regulated by the Ministry of Natural Resources (MNR) under the Aggregate
.
REPORT ADMIN-47-97
PAGE 11
Resources Act. However, Staff are not aware of any health effects specifically
resulting from noise, dust and vibration of quarrying activities. The Ministry of
Natural Resources have indicated that they have no knowledge of any studies
related to health impacts.
Will well water supply in the Watsons Drive area continue to diminish?
In December 1995, residents in the Watsons Drive area experienced well water
disturbances after a series of blasts in the quarry. According to a hydrogeologist
retained by Blue Circle, the water source in the Watsons Drive area is derived
from an aquifer not fed from either the marsh or Lake Ontario. Although the
hydrogeologist could not be certain that the disturbances resulted from the blasts,
he did indicate that as the quarry moves east, the aquifer would recharge at a
much slower rate. Since that time Blue Circle has provided water in a portable
cistern to the affected residents. It is Blue Circle's intention to acquire additional
residential properties in the Watsons Drive area to alleviate direct impacts on
residents. Alternately, consideration would be given to providing in-ground
cisterns as a long-term solution.
Will land values in the Cedar Crest Beach/Watsons Drive area decrease as a result
of proposal?
Staff are not aware of any evidence that wouid support this conclusion.
According to the Trust's report, in most instances, waterfront properties hold their
value. The increased open space buffer between residences and the quarrying
operation could have a positive effect on land value.
Will the length of time children stay on the school bus increase?
Staff have spoken with representatives from both School Boards. They both
indicated that the length of time on the school bus would likely increase but only
marginally. The school boards want to ensure that there will always be an
appropriate turn-around at the end at Cedar Crest Beach Road. This turn-around
is currently provided by Watsons Drive. In addition, the school boards indicated
that they are in the process of realigning school boundaries as a result of new
REPORT ADMIN-47-97 PAGE 12
schools opening in Bowmanville and would consider the impact of closing
Waverly Road.
Saving only sixty percent of the Marsh is not good enough. Why should we stop
here?
The agreement reached between Blue Circle and the Municipality, in Staff's
opinion, is a good solution for saving a portion of the marsh and meeting the
concerns of the residents while maintaining the economic viability of the
company.
When will the CBM aggregate processing operation be relocated and where?
The agreement partially implements the Trust recommendation regarding CBM
aggregate processing and redi-mix operations on Waverly Road. The Trust
recommended that these operations be transferred to an industrial location
provided by the Municipality of Clarington within two years of the execution of the
agreement. Under the agreement negotiated between the Municipality and Blue
Circle, the existing CBM aggregate processing plant and redi-mix operation will
be removed within two years of the closing of the Temporary Public Highway on
the Blue Circle Haul Road. However, Blue Circle reserved the right to reinstall
another crusher on their lands provided it complies with the Official Plan
modification. Modification No. 170 to the Clarington Official Plan prohibits the
CBM operation within 700 metres of the nearest residence and 150 metres from
Lake Ontario, or alternatively is located 10.7 metres (35 feet) below natural grade.
What assurances are there that the marsh link area will come into public ownership?
Is there a polley document to reflect this?
The agreement between Blue Circle and the Municipality requires the marsh link
area to be transferred to a public agency. The transfers will take place
simultaneous with the transfer of the first portion of Waverly Road. (See Section
8(a)(ii) of Principles of Understanding).
What assurances are there that CLOCA will not sell off the marsh?
Under the terms of the agreement, the marsh and various other parcels will be
transferred at the direction of the Municipality to CLOCA. The Municipality will
REPORT ADMIN-47-97
PAGE 13
retain an option so that if the Authority dissolves or declares the lands surplus to
their needs, the lands would be transferred back to the Municipality.
Will Blue Circle have any form of interest in the lands to be transferred?
Blue Circle will retain some easements to access the diversion channel and dyke
for construction and repairs as detailed in Schedule "K" to the Principles of
Understanding. A temporary easement will also be retained over the reconfigured
marsh to create and maintain fisheries enhancement works as required by
Department of Fisheries and Oceans. Blue Circle will have no other legal interest
in the transferred lands.
Why does Waverly Road need to be closed before the bridge is built?
Blue Circle was willing to contribute their share of the costs for reconstruction of
Cove Road and construction of Westside Creek bridge provided that Waverly
Road was closed by the Municipality. In other words, they were not willing to
advance the funds on speculation that a future Council would pass the necessary
by-laws to close the road. Given the end of term for this current Council and the
recognition by all parties of the need to bring this process to a close, it is legally
necessary to close the road first while providing for a temporary road on a leased
basis until the bridge is actually built and Cove Road dedicated as a public road.
The Municipal Act prohibits the closing of a public highway which is the only
access to properties unless access is provided by another public highway.
Why is the northerly part of Waverly Road deleted from the proposed closure?
Blue Circle had originally wanted to acquire as much of Waverly Road as possible
under the first phase of the closure. However, this section was deleted to avoid
the unnecessary construction of a temporary route estimated to cost $70,000
when that portion of Waverly Road could be used. It also avoids additional
unnecessary inconvenience to residents. The Principles of Understanding provide
for a second closure ofthe northerly part and the Temporary Public Highway after
the Westside bridge is constructed and dedicated as a public road (See Section
4 of Report).
REPORT ADMIN-47-97
PAGE 14
When are approvals for the bridge forthcoming from the various agencies?
The status of the approvals for the Wests ide Creek are reviewed in Section 5 of
this report.
Once Cove Road becomes public, area residents are concerned that the general
public will access the beach over private property. Can signage be provided to
direct people to areas that are publicly accessible?
Directional signage to public areas along the waterfront will only be considered
once public amenities are built along the waterfront.
3. THE PRINCIPLES OF UNDERSTANDING
3.1 The Principles of Understanding will be made fully conditional on the necessary senior
government approvals being granted. In the event that all approvals are not granted by
December 31, 1999, the Principles of Understanding will unwind and consequently will
not bind either the Municipality or Blue Circle after that date.
3.2 The main elements of the Principles of Understanding (Attachment #4) are set out in the
chart included in the Executive Summary and key items are reviewed in detail in the
following sections.
3.3 The implementation of the recommendations of the Waterfront Regeneration Trust will
require that:
. Blue Circle enter into a legal arrangement with the Federal Department of
Fisheries and Oceans, the Ministry of Natural Resources and CLOCA respecting
the fish habitat;
. Blue Circle enter into a legal arrangement with Ontario Hydro and CLOCA
respecting the diversion works and lands; and
. the transfer of certain lands to CLOCA, the making of a management agreement
respecting them by the Municipality and CLOCA, the preparation of a
management pian by CLOCA and the implementation of the plan by CLOCA.
4. CLOSURE OF WAVERLY ROAD
4.1 Closure Areas
4.1.1 The Principles of Understanding outline four proposed closure areas of the road
allowance of Waverly Road (see Attachment #2). Only Proposed Closure Area A would
REPORT ADMIN-47-97 PAGE 15
be closed immediately. The other three potential closure areas would be considered by
future Councils.
Proposed To be Use Consideration
Closure Areas Conveyed to
A Blue Circle Quarry $337,250
B Blue Circle Quarry Part of above
C CLOCA Conservation Area Nominal
D Blue Circle Buffer Area Blue Circle assuming costs of
repair and maintenance of the
bridge over the CN railway
4.1.2 Staff previously reported to Council on the closure of approximately 5 acres of Waverly
Road through Reports WD-51-97 (August 18,1997), Admin-42-97 (September 29,1997)
and WD-64-97 (October 6, 1997). The latter report noted that Blue Circle amended its
application for the immediate closure and conveyance from the lands advertised in the
Public Notice to include only the southerly portion, being Proposed Closure Area A.
4.1.3 The residents of the Cedar Crest Beach Road and Watson Drive areas now have access
to their properties only via Waverly Road. The acquisition of Cove Road, its dedication
as a public highway, and the construction of the proposed bridge to connect Cove Road
to Cedar Crest Beach Road would follow the closure and conveyance of the portions of
Waverly Road in question and the acquisition of necessary properties by the Municipality.
The Municipal Act prohibits the closing of a public highway which is the only access to
properties unless access by another public highway is provided.
In order to address these considerations in the first phase, staff have negotiated for and
Blue Circle has agreed to lease to the Municipality the portions of its present haul road
and an extension to intersect with Cedar Crest Beach Road as shown on Attachment #2.
The haul road and its extension would be leased for a nominal rent from Blue Circle as
a temporary public highway. There would be improvements made to the road by Blue
Circle prior to dedication as a public highway. In addition, the Municipality would install
appropriate signage to direct traffic on the temporary public highway. All of the costs
REPORT ADMIN-47-97
PAGE 16
associated with the improvements to the temporary public highway would be cost shared
on a SO/50 basis.
4.1 .4 The residents of the Cedar Crest Beach Road and Watson Drive areas would utilize the
leased portion of the haul road and its extension for that period of time following the
transfer of Waverly Road to Blue Circle (estimated to be January 1998) until such time
as Cove Road and the proposed bridge are dedicated as public highway (which could
be as soon as late Fall 1998). Any delay in obtaining approvals under Federal legislation
or land acquisition could serve to delay construction from Spring 1998 to Spring 1999
or later, thus increasing the length of time requiring utilization of the leased haul road.
4.1.5 Report WD-64-97 (Attachment #5), tabled by Council on October 14,1997, recommends
to Council that conditional on Council approval of an agreement with Blue Circle, staff
be authorized to prepare by-laws to stop up, close and convey portions of the road
allowance known as Waverly Road to Blue Circle and to assume and dedicate portions
of the Blue Circle haul road and its extensions as a temporary public highway. Report
WD-64-97 had recommended that an extension to the temporary public highway be
constructed on the east side of Waverly Road through the CBM/Blue Circle lands to the
Ontario Hydro right-of-way. It has been agreed with Blue Circle that this extension should
not be undertaken and accordingly will not be included in either the Lease or the
dedication by-law. It is recommended that Report WD-64-97 be lifted from the table
and received for information. This report deals comprehensively with all matters and
incorporates the recommendations in WD-64-97.
4.1.6 It is recommended that Council pass the necessary by-laws to close and convey
Proposed Closure Area A. The actual conveyance to Blue Circle will not take place until
the "Closing Date", which is defined by last of occur of a number of actions including the
acquisition of lands for constructing the Westside Bridge and the execution of the various
related agreements referred to in Section 8 of this report.
4.1 .7 It is also recommended that Council pass a by-law to dedicate a Temporary Public
Highway, being a portion of the Blue Circle haul road and its extensions as defined
by Schedule F of the Principles of Understanding. The Director of Public Works will
REPORT ADMIN-47-97
PAGE 17
provide a verbal report at the meeting indicating whether the improvements to the haul
road have been made to his satisfaction to enable Council to pass the above by-law.
4.1.7 The second phase of the closure would occur subsequent to the construction of the
Westside Bridge, the improvements to Cove Road and its dedication as a public highway.
The Principles of Understanding indicate that it is Council's intention to proceed with
Closure Area B. However, for legal reasons this decision cannot be made at this time
and will be a matter to be determined by a future Council. Given this uncertainty Blue
Circle has required that, among other things, the conveyance of the Westside Marsh
(approximately 60 acres) be held in escrow on the condition of Council proceeding to
close and convey Proposed Closure Area B.
4.1.8 The second phase would also include the closure and conveyance of approximately 0.30
hectares (0.74 acres) to CLOCA for incorporation into the Westside Marsh management
area.
4.1.9 A third and finai phase of road closure is possible. It was staff's position in the
negotiations that the remaining 0.47 hectares (1.16 acres) could be closed and conveyed
to Blue Circle for use as a open space buffer area in consideration for Blue Circle
assuming the maintenance costs, appropriately secured, for the bridge over the CN
railway. However, there has been no agreement as to these terms. While the matter is
referenced in the Principles of Understanding, the arrangements will be dependent on
further discussions.
4.2 Appraisal and Surplus Land
4.2.1 Before Council may pass a by-law to authorize the conveyance of Proposed Closure Area
A to Blue Circle, Section 19.3 of the Municipal Act and the Municipality's by-law
establishing procedures on the saie of real property must be complied with. Section 19.3
requires Council to declare the land to be surplus, to obtain at least one appraisal of the
fair market value of the real property and to give notice to the public of the proposed
sale.
REPORT ADMIN-47-97
PAGE 18
4.2.2 The Director of Public Works concurs with the memorandum from the Director of
Planning and Development to the Chief Administrative Officer dated September 5, 1997
(Attachment #6). They recommend that Council declare Proposed Closure Area A to be
surplus.
4.2.3 With respect to the required appraisal, Cornwall Property Consultants Ltd. were retained
by the Municipaiity. Their estimate of the aggregate value of Waverly Road for a section
that includes Closure Area A and Closure Area B is $337,250.00. Staff recommend that
this be accepted as the fair market value of Closure Area A and Closure Area B.
4.2.4 Notice has been given to the public of the proposed sale of Proposed Closure Area A
and abutting reserves to Blue Circle.
4.2.5 The Director of Public Works recommends that Proposed Closure Area A be declared
surplus following the dedication of the Temporary Public Highway as a public highway
pursuant to the Principles of Understanding. The Temporary Public Highway will serve
the same function as the portion of Waverly Road that is within Proposed Closure Area
A.
4.2.6 Staff recommend therefore that council authorize the sale of Proposed Closure Area
A pursuant to the provisions of the Principles of Understanding.
5. RECONSTRUCTION OF COVE ROAD AND CONSTRUCTION OF WESTSIDE CREEK
BRIDGE
5.1 Preliminary drawings have been prepared by the Municipality's consultants which show
the proposed bridge that would connect Cedar Crest Beach Road to Cove Road and the
improvements that are necessary to bring Cove Road up to Municipal standards. As
approved by Council in April 1997, it has been resoived to construct a bridge spanning
Wests ide Creek including 120 metres of Cedar Crest Beach Road and the full length of
Cove Road from the bridge to West Beach Road, a length of 325 metres.
REPORT ADMIN-47-97
PAGE 19
The bridge shall be of concrete construction with a horizontal span of 32 metres, one
traffic lane wide with a sidewalk on the south side. The design characteristics shall
conform with current day criteria.
5.2 Cove Road shall be built with a pavement width of 6.5 metres with adjacent sodded
shoulders and swales. The local residents have requested that construction designs be
established as necessary to retain the present character of the neighbourhood. The total
cost of road construction (including utility relocation and illumination at the bridge) is
estimated at $832,000. The total project cost, including land acquisition, is presently
being estimated at $1,500,000.
5.3 Construction of the proposed bridge to connect Cove Road to Cedar Crest Beach Road
require approvals under the Ontario Environmental Assessment Act, the Navigable Waters
Protection Act, the Fisheries Act, and (possibly) the Federal Environmental Assessment
Act.
Approval for the project has been obtained under the Ontario Environmental Assessment
Act. The Ministry of the Environment and Energy determined the project is subject to a
Schedule B of the Act and no request for bump-up was received.
Staff is continuing to follow up on all approvals required under Federal Legislation.
However, it is not possible to estimate the timing and costs of doing so with confidence
at the present time. The Canadian Coast Guard (CCG) has declared the open waters of
Westside March as navigable under the regulations of the Federal Navigable Waters
Protection Act. This declaration required the preparation of an Environmental Study
Report with subsequent circulation of the report by GGG to other agencies. In addition,
the Marsh is subject to the Fisheries Act legislation, the Navigable Waters Protection Act,
and (possibly) the Federal Environmental Assessment Act. As of the writing of this report,
the Department of Fisheries and Oceans (DFO) has requested additional information on
the impact on fish habitat of the bridge and road construction and will not issue an
authorization unless acceptable measures to compensate habitat loss are developed and
implemented.
REPORT ADMIN-47-97
PAGE 20
5.4 The Municipality would proceed with construction at the earliest possible opportunity
subsequent to receiving the remaining approvals and subject to construction season
requirements to minimize environmental impacts. It is anticipated that this project would
be undertaken in 1998.
5.5 Under the agreement, the Municipality agrees to purchase all aggregate and concrete
materials for Cove Road and the bridge from Blue Circle at current market value prices.
It is recommended that Council exempt this project from the Purchasing By-law and
allow the tender documents for the Cove Road/Westside Creek Bridge project to
include a requirement that Blue Circle would be the exclusive supplier for aggregate
and concrete.
6. PROPERTY ACQUISITION
6.1 Westside Marsh Bridge and Approaches
Property Valuators/Consulting Inc. were engaged to compiete an appraisal of the said
lands for the purpose of estimating their market values. There are five properties that the
Municipality needs to acquire. Discussions have been held with the principal owner of
the lands affected and to date there has been no progress.
6.2 Dedication of Cove Road as a Public Highway
Cove Road is neither owned nor maintained by the Municipality of Clarington. It is a
private road over which many landowners or their mortgagees have a right of way. As the
Municipality is in discussions with the owner of Cove Road to assume responsibility and
dedicating it as a public highway, the Municipality must obtain title to the road free and
clear of all encumbrances including any right of ways.
Quit Claim documents have been prepared and sent out to the 50 property owners and
approximately 35 mortgagees. There have been several problems with the Quit Claim
Process as many of the claims have been returned due to incorrect addresses, new
owners etc. All current information has been reviewed and staff are continuing to
process all claims.
REPORT ADMIN-47-97
PAGE 21
6.3 Expropriation
Failing to complete negotiations with landowners for whose properties are affected by the
approaches and the construction of the Westside Creek Bridge, the Municipality may
have to consider commencing expropriation proceedings by publishing a notice of
intention to expropriate under Section 6 of the Expropriation Act.
Similarly if the Municipality does not receive quit claims from all property owners and
mortgagees, the Municipality may have to consider commencing expropriation
proceedings to obtain clear and free title to Cove Road.
It is the intent of Staff to continue to meet with all parties to avoid these proceedings if
at all possible. If agreements cannot be reached with all parties, staff would
subsequently report on all land acquisition issues.
7. LANDS TO BE CONVEYED TO CLOCA
7.1 The Principles of Understanding provide for 111 acres of land to be conveyed to CLOCA.
The first 43 acres would be conveyed upon closing. This includes the Marsh Link Area,
the Bowmanville Marsh and the Bowmanviile Creek vaileylands as identified on
Attachment #3.
7.2 Blue Circle has been concerned that the current Council cannot bind future Councils.
Accordingly there is an element of risk to the completion of the project that the remaining
portion of Waverly Road or the Temporary Public Highway would not be closed by a
future Council. In order to provide a level of certainty that the arrangements will be
completed as negotiated, the actual Reconfigured Westside Marsh would be conveyed
in escrow with the condition that the Municipality close and conveys the remaining
portion of Waverly Road (Closure Area B) and closes the Temporary Public Highway and
surrenders the lease.
7.3 For liability reasons, CLOCA has indicated that it does not want to own either the
Westside Creek Diversion Area B or the southerly dyke (as shown on Attachment #1).
Accordingly, these lands wiil remain in Blue Circle's ownership, but will be subject to
easements in favour of CLOCA.
REPORT ADMIN-47.97
PAGE 22
7.4 Various easements will be granted in favour of either CLOCA or retained by Blue Circle
in order to allow either party to access various lands for construction, monitoring and
maintenance purposes. The creek diversion area through the Ontario Hydro corridor will
be subject of an easement granted to both Blue Circle and CLOCA. Blue Circle is
responsible to acquire the easement on the basis of the land values paid by Ontario
Hydro at the time of expropriation.
7.5 At the meeting of the Board of Directors of CLOCA on October 21, 1997, the authority
resolved to enter into the necessary agreements (see Section 8 below) and implement
the Principles of Understanding as would be adopted by the Municipality including
assuming management responsibilities of the Wetland complex.
8. RELATED AGREEMENTS
8.1 The project negotiated through the Waterfront Regeneration Trust involves the retention
of approximately 60% of the 102 acre Westside Marsh. It is a scientifically complex
arrangement which involves the relocation of the Westside Creek in part through the
Ontario Hydro corridor, the creation of new fisheries habitat as mandated under the
Fisheries Act and the long term management of the new Westside Marsh and
Bowmanville Marsh wetland complex so that there is no net loss in wildlife habitat.
As the present time, not all of the related agreements which are necessary to implement
the arrangements have been completed. Since these agreements are fundamental to the
Municipality's objective of preserving as much of the Marsh's function as currently exists,
it is important that these agreements be referenced as a requirement in the Principles of
Understanding. This lays the groundwork for the further work and expectations of all
parties in the futu re.
8.2 Fisheries Agreement
8.2.1 While the fisheries aspect is the least significant component of the Westside Marsh, the
legislation governing fisheries is the most powerful. Blue Circle has undertaken studies
which estimate that approximately 55% of the fish habitat productivity would be lost under
the extraction proposal of the Waterfront Regeneration Trust. The compensation proposal
comprises a number of components including the creek diversion area, an enlarged and
REPORT ADMIN-47-97
PAGE 23
deepened new creek mouth, deepening the central part of the marsh and adding logs,
tree roots and aquatic plants, and removal of a portion of the southern berm to create
additional fish habitat area. Each enhancement area will be transplanted primarily with
plant material harvested from the wetland. Carp control fencing will be built and the
marsh will be stocked with large mouth bass. There will be detailed performance
monitoring at years 2,5 and 10 after construction, but some limited monitoring will be
done each year. Nevertheless, in the event that the compensation measures fail, Blue
Circle is not obligated to undertake further works.
8.2.2 Blue Circle, CLOCA, the Ministry of Natural Resources and the Department of Oceans
and Fisheries (DFO) have signed a Letter of Intent with respect to the compensation and
monitoring arrangements. It is anticipated that in light of the commitment for
compensation in the Letter of Intent, DFO will shortly give authorization for Blue Circle to
destroy fisheries habitat within the revised limits of the quarry.
8.2.3 As noted above, staff are continuing discussions with DFO respecting any possible
impact of Cove Road and the bridge on the fish habitat. If necessary, the Municipality
may be required to provide compensation if there is any impact on fisheries habitat.
8.3 Maintenance and Monitoring Agreement
8.3.1 The diversion of Westside Creek through the Ontario Hydro corridor and around the
currently licensed area involves a deep cut, the careful placement of culverts between
hydro towers, and the bio-engineering of the creek channel. Blue Circle estimates the
construction work would take up to 3 years and it would be another 2 years for the
vegetation to grow before the creek was actually diverted.
Ontario Hydro has co-operated with all parties in order to meet the objectives of the
project. They have provided their consent in principle for the diversion of the creek
through their corridor. However, they remain concerned about the engineering work for
the culvert to be placed between their towers and the long term maintenance of the creek
diversion. Ontario Hydro requires that a pUblic sector agency own and operate the creek
through their corridor. To this end, CLOCA staff have indicated that their agency would
be willing to accept management responsibility for the creek diversion subject to an
REPORT ADMIN-47-97
PAGE 24
agreement with Blue Circle to deal with indemnity, monitoring and maintenance works.
Blue Circle will be acquiring an easement interest through the corridor for both CLOCA
and themselves.
The Maintenance and Monitoring Agreement would also extend to other lands including
the lower part of the diversion channei, the reconfigured marsh and the new overflow
channel to be constructed at the southwest side. This agreement would deal with the
hydrology and structural stability issues related to the diversion of the creek. It does not
deai with the natural environment issues save and except for the bio-engineering
techniques to be used to provide a more natural character to the diversion works and
provided in relations to the fisheries compensation.
8.4 Management Agreement
8.4.1 The conveyance of the various lands by Blue Circle, in particular the tableland area which
wouid link the remnant Westside Marsh with the Bowmanville Marsh, provides the
opportunity to compensate for the loss of important habitat which will be quarried at the
north end of the wetland. This would establish a significant holding with linkages
between the two wetlands.
The Waterfront Regeneration Trust's report envisages a broader environmental
management plan being prepared to guide CLOCA's management of the new public
lands. It is also anticipated that the Municipality, Blue Circle and the community will
contribute to funding these activities. The Trust also indicate that it would assist in
finding resources for management activities.
8.4.2 CLOCA estimates that the cost of preparing a plan would be in the range of $50,000 to
$100,000 and that initial costs for enhancement and improvements would be in the range
of $200,000 including such items as plantings for the open field areas, ponds for
amphibians, snake hibernacula, trails and interpretive facilities.
8.4.3 The agreement with Blue Circle provides for the following:
· a joint management agreement would be prepared between the Municipality and
CLOCA
REPORT ADMIN-47-97
PAGE 25
. The Municipality would contribute $100.000 towards the costs of preparing a
management plan and an initial seed funding for improvements to wildlife habitat
and interpretive features including lookouts and spur trails from the waterfront trail
. Blue Circle would contribute either $70.000 to CLOCA or $94.500 ($70,000 plus
tax benefit) to the CLOCA Foundation at such time as they receive their charitable
status for the management plan and seed money for the initial improvements as
outlined above. This payment wouid be made prior to the Closing Date.
8.4.4 It is recommended that Council authorize the preparation and execution of a
management agreement between the Municipality and CLOCA which addresses,
among other matters, the issues identified in Attachment #7. It is also
recommended that the Municipality's contribution of $100,000 towards the start-up
costs for the management of the Westside Marsh and Bowmanville Marsh Wetland
Complex be appropriated from the Pits and Quarries Reserve Account and set aside
in a Reserve Account to be established for the management of the wetland complex.
These funds would be accessed upon submission of invoices from CLOCA for services
or projects completed.
8.4.5 Given the provincial significance of this wetland, the Waterfront Regeneration Trust
indicated that it would assist in finding resources for the management and enhancement
of the remnant wetland. It is recommended that the Rt. Hon. David Crombie and the
Trust be requested to secure matching funds for this project.
9. OFFICIAL PLAN AND ZONING ISSUES
9.1 As part of the negotiations. Staff wanted to resolve the outstanding deferrals to the
Regional Official Plan and Clarington Official. In addition, amendments to the Zoning By-
law are proposed to remove the Extractive Industriai (M3) zoning covering the lands
which would be part of the Westside/Bowmanville Marsh wetland complex and the
Westside Creek Diversion areas and overflow channel.
9.2 Both Blue Circle and staff have agreed to defer any matters dealing with the existing and
proposed expansion of the dock. Blue Circle has received provincial and federal
approval. It is staff's intention to deal with the official plan and zoning matters in the new
year alter review of all of the necessary technical reports.
REPORT ADMIN-47-97
PAGE 26
9.3 Durham Regional Official Plan Modification
9.3.1 The lands owned by Blue Circle (with the exception of the Bowmanville Marsh) are
designated as Special Policy Area B in the Regional Official Plan. At the request of the
Port Darlington Community Association, the land use designation and associated policies
were deferred for further consideration.
9.3.2 The modification, included in Schedule "L" in Attachment #4, indicates that the Region
supports the agreement between the Municipality and Blue Circle which would allow for
a reduction of the total licensed area, the closing of Waverly Road, the retention of a
significant portion of the Marsh and the conveyance of approximately 40 ha into public
ownership and management. The modification also includes some technical changes
which recognize the change in ownership, the completion of the Region's waterfront plan
and the new Provincial Policy Statement.
9.3.3 It is recommended that the Region be requested to amend the Regional Official Plan
in accordance as indicated in Schedule "L" to the Principles of Understanding. Both
parties have agreed to request the Region not to adopt the proposed modification until
such time as the temporary public highway is closed and the Lease of it has been
released to Blue Circle.
9.4 Clarington Official Plan Modification
9.4.1 The Clarington Official Plan currently designates the lands held by Blue Circle, west of
Waverly Road, as Special Policy Area C. The Blue Circle lands between Waverly Road
and West Beach Road and much of the residential area know as the "Cove" are
designated Special Study Area 2. These lands and the related policies are deferred for
further consideration by the Region.
9.4.2 The proposed modification #170 included in Schedule "M" contained in Attachment #4
proposes a variety of changes designed to implement the Principles of Understanding
and to ensure that existing irritants of noise and dust will not be further aggravated as
quarrying activities proceed easterly. Specifically the modification provides for:
. a revised list of permitted uses within the Special Policy Area;
REPORT ADMIN-47-97
PAGE 27
. spatial separation of 700 metres between aggregate processing plant, the
concrete-batching plant and the truck terminal and the residential properties. In
addition there is a requirement for a 150 metre setback from Lake Ontario
. notwithstanding the spatial separation above, in the event that Blue Circle requires
to use a primary or secondary crusher within the quarry, it would be permitted
provided that it was located at least below 10.7 metres (approximately 35 feet)
below natural grade;
. the management of the creek diversion, wetlands and link areas with the objective
of achieving no net loss in biodiversity and function
. requires that rehabilitation plans account for a variety of factors including the
Westside Marsh and that Blue Circle would consider the input and comments of
the Municipality and CLOCA prior to submitting it to the Ministry of Natural
Resources. Consultation between the Municipality, Blue Circle and the relevant
agencies to develop a long term rehabilitation plan will be required.
. A new Special Policy Area for the Cove Residential community will be
added which recognizes the historic residential community and permits
limited infilling on private sewer or water services and in accordance with
other appropriate policies of the Plan.
. Special Study Area 2 is deleted
9.4.3 It is recommended that Modification # 170 be approved by Council and forwarded
to the Region. Blue Circle has consented to the modification provided that the policies
affecting its lands are not approved by the Region and in force until the arrangements
are completed in accordance with the Principles of Understanding. Accordingly, the
Municipality and Blue Circle would request the Region to defer its approval of Section
16.5 (Special Policy Area "C" - Blue Circle) and the associated land use designations until
the temporary public highway is closed and the Lease is released to Blue Circle.
However, the Municipality would request the Region to approve Section 16.11 (Special
Policy Area "I" - Cove Residential Area) and the associated land use designations.
9.5 Zoning By-law Amendments
9.5.1 Under the Principles of Understanding, the Municipality would initiate the process under
the Planning Act to rezone the lands associated with the Wests ide Creek Diversion and
the wetland complex comprising the Westside and Bowmanville marshes and the Marsh
Link Area. Two by-laws have been prepared and are attached as schedules to the
agreement.
REPORT ADMIN-47-97
PAGE 28
9.5.2 The first by-law (see Schedule "N" of the Principles of Understanding in Attachment #4)
would rezone the Hydro transmission corridor, the westerly part ofthe Bowmanville Marsh
and parts of the Bowmanville creek valley from "Agriculture (A)" Extractive Industrial -
Special Exception 2 (M3-2)" to "Environmental Protection (EP)". This by-law is not subject
to the modification to the Clarington Official Plan or the application by Blue Circle to
amend their aggregate licence. Accordingly, this by-law would be passed by Council
after complying with the requirements of the Planning Act including the holding of a
public meeting and circulation to agencies.
9.5.3 The second by-law (see Schedule "0" of the Principles of Understanding in Attachment
#4) would rezone the reconfigured marsh area, the habitat link area, dyke area "B" and
the overland flow channel from "Extractive Industrial - Special Exception 2 (M3-2)" to
"Environmental Protection (EP)". This by-law would be processed under the Planning Act,
including the holding of a public meeting. However, Council would only enact the by-law
at such time as the Municipality has closed and conveyed the northerly portion of
Waverly Road (Proposed Closure Area B) and Blue Circle has received an amended
aggregate licence.
9.5.4 It is recommended that staff be authorized to initiate amendments and advertise a
public meeting for the zoning by-laws referred to in the Principles of Understanding.
10. INCREASE IN ANNUAL TONNAGE
10.1 Blue Circle requested the Municipality's support in increasing their annual tonnage limit
under the licence issued by the Ministry of Natural Resources from 3 million tonnes to
4.5 million tonnes. A letter has been prepared by the Director of Planning (Attachment
#8) indicating that subject to Council's approval of the letter and the provision of
technical reports which would indicate there will not be a substantial change in the
emission of noise, dust or vibration or an unacceptable impact on the road system as a
result of the increase in annual capacity, the Municipality would not object to the
proposed increase in annual tonnage. It is recommended that Council approve the
content of the leUer regarding an increase in annual tonnage for the Blue Circle
lands as per Attachment #8.
REPORT ADMIN-47-97
PAGE 29
11. REMOVAL OF CBM CRUSHER
Blue Circle has committed to removing the existing CBM Crusher located on the east side
of Waverly Road within two years of the closing of the temporary public highway and
surrender of the lease for the Blue Circle haul road. However, they have reserved the
right to install another crusher for CBM use provided that it complies with the provisions
of Modification 170 to the Official Plan, specifically that it is greater than 700 metres from
any residentiai property.
12. CONCLUSION
12.1 Staff of the Municipality and Blue Circle have worked diligently over the past few months
so as to provide for Blue Circle is economic requirement for certainty in the future of their
operations, the protection of residents from irritants as the quarry operation moves
easterly and the preservation of a large portion of the provincially significant wetland.
The arrangements require that all parties, including the area residents, make a
commitment to share the burden and reap the benefits in fulfilling the plan.
12.2 The Treasurer has reviewed the financial recommendations contained in this report and
concurs.
Respectfully submitted,
~ Ud.--/
Stephen A. Vokes, P. Eng.
Director of Public Works
WH~~
Chief Administrative Officer
'j _ (" C' r
'.~ to (t '-- ~ \. ~- "-' L'-...
Franklin Wu, M.C.I.P., R.P.P.
Director of Planning
and Development
DC*SAV*FW*jip
REPORT ADMIN-47-97
PAGE 30
Attachments
1. Map of Westside Marsh and Blue Circle Quarry
2. Road Map
3. Map of Lands to be Conveyed to CLOCA
4. Principles of Understanding
5. Report WD-64-97
6. Memo from Director of Planning on Surplus Land
7. Specifications for Management Agreement with CLOCA
8. Letter to Wilson Little, Director of Engineering, Blue Circle
9. Lease for Temporary Haul Road and Extensions (Under Separate Cover)
Interested Parties to be notified of Council's decision:
Mr. Wilson Little
Director of Engineering
Blue Circle Canada Inc.
400 Waveriy Road
Bowmanvilie, Ontario
L 1 C 3K3
Mavis Cariton, Co-Secretary
Glenda Gies, Acting Co-Secretary
Port Darlington Community Association
R.R. #2, Group 2, Box 63
Bowmanville, Ontario
L 1 C 3K3
Mr. Michael McQuaid, Q.C.
Weir and Foulds
Exchange Tower
Suite 1600, P.O. Box 480
2 First Canadian Place
Toronto, Ontario
M5X 1 J5
Leah Houston
Youth-in-Action
137 Cedar Crest Beach Road
Bowmanville, Ontario
L1C 3K3
Mr. Russell Powell
Chief Administrative Officer
Central Lake Ontario Conservation
100 Whiting Avenue
Oshawa, Ontario
L1H 3T3
Mr. Gordon White
37 Windsor Valley Drive
Courtice, Ontario
L1E 1J4
Rt. Hon. David Crombie
Waterfront Regeneration Trust
207 Queen's Quay West
Suite 580
Toronto, Ontario
M5J 1A7
Mars Barrick
147 Cove Road
Group, Box 66
Bowmanville, Ontario
L 1 C 3K3
Valerie Dostie
R.R. #2, Box 11
707 Waverly Road South
Bowmanvilie, Ontario
L 1 C 3K3
Mr. Ric Symmes
Sternsman International
13 Ganton Road
R.R. #2
Orillia, Ontario
L3V 6H2
Larry Defosse
125 Cove Road
Group 2, Box 66
Bowmanville, Ontario
L1C 3K3
REPORT ADMIN-47-97
PAGE 31
Murray DeHaas
83 Cedar Crest Beach Road
Bowmanville, Ontario
L 1 C 3K3
C.H. (Chris) Vanderreest
Agent/Appraiser! Administrator
GRID System Real Estate
GRID District Operations
7676 Woodbine Avenue, Suite 300
Markham, Ontario
L3R 2N2
David Ashcroft
63 Cedar Crest Beach Road
Group 5, Box 36, R.R. #2
Bowmanville, Ontario
L1C 3K3
Debbie Houston
137 Cedar Crest Beach Road
Bowmanville, Ontario
L 1 C 3K3
R.W. Messerney, District Manager
Aurora District
Ministry of Natural Resources
P.O. Box 7400
10401 Dufferin Street
Maple, Ontario
L6A 1 S9
Georgina Preston
69 Cedar Crest Beach Road
R.R. #2
Bowmanville, Ontario
L1 C 3K3
Mr. Ken Brant
Regional Superintendent
Canadian Coast Guard
201 North Front Street
Suite 703
Sarnia, Ontario
NIT 8B1
Christine Reid
49 West Beach Road
Group 2, Box 26
Bowmanville, Ontario
L1C 3K3
David Hill
101 Cedar Crest Beach Road
Bowmanville, Ontario
L1C 3K3
D.V. Gilman, Area Manager
Department of Fisheries and Oceans
Fisheries and Habitat Management - Ontario
867 Lakeshore Road, P.O. Box 5050
Burlington, Ontario
L7R 4A6
Bob Morrison
97 Cedar Crest Beach Road
Group 5, Box 25
R.R. #2
Bowmanville, Ontario
L1C 3K3
Maureen & Ted Remington
Box 44201
600 Grandview Street South
Oshawa, Ontario
L 1 H 8R5
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LANDS TO BE
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ATTACHMENT #4
Draft #16
October 27, 1997
THESE PRINCIPLES OF UNDERSTANDING dated this 3rd day of November, 1997.
BET WEE N:
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
("Municipality")
OF THE FIRST PART
- and -
BLUE CIRCLE CANADA INC.
("Blue Circle")
OF THE SECOND PART
PRINCIPLES OF UNDERSTANDING
WHEREAS:
A. Blue Circle is the owner in fee simple in possession of certain portions of Lot 11, Broken
Front Concession, former Town of Bowmanville and of Lots 12, 13, 14, 15, 16 and 17, Broken
Front Concession, former Township of Darlington now in the Municipality of Clarington and
certain portions of the original road allowances between Lots 11 and 12, Lots 12 and 13, Lots
14 and 15, and Lots 16 and 17. Blue Circle also is the owner in fee simple in possession of a
water lot comprising Part I on plan of survey of record lOR-2426 on a portion of which is
constructed a dock. The lands owned by Blue Circle collectively are referred to hereafter as the
"Blue Circle Lands" and are shown on the Plan contained in Schedule "A" hereto.
-2-
B. The Westside Marsh is located on the portions of the Blue Circle Lands which comprise
parts of Lots 12 and 13, Broken Front Concession, former Township of Darlington now in the
Municipality of Clarington;
C. Presently, Blue Circle holds a licence to extract aggregate from the Westside Marsh
under the Aggregate Resources Act;
D. The Waterfront Regeneration Trust ("Trust") issued its Westside Marsh Report and
Recommendations in November, 1995. This Report followed the submission by the Honourable
David Crombie of the Interim Report on the Royal Commission on the Future of the Toronto
Waterfront in 1990. The 1995 Report was prepared with the encouragement of the Municipality,
the Community and Blue Circle's predecessor St. Marys Cement Corporation;
E. Westside Marsh was identified by the Trust as the only Provincially significant Class II
Wetland on the Durham shore of Lake Ontario. The Trust noted that it is valued highly by
regional and local naturalists and by residents on the Municipality's waterfront. However, the
limestone beneath the Westside Marsh is licensed for extraction and subject to protection under
Provincial policy;
F. In preparing its Report of November, 1995, the Trust organized a number of meetings
between two groups of stakeholders to consider habitat issues and other community concerns
related to St. Marys proposed developments in the Westside Marsh. While these meetings were
ongoing, additional studies were conducted and the Trust met with relevant agencies and
individuals to obtain additional expert information. The plan contained in the Trust Report
stated the following objectives:
· protect most of the Marsh and create a new habitat for fish, birds, plants and animals in
order to achieve no net loss, overall,
· create 120 acres of parkland to protect the community,
-3-
. close approximately four (4) acres of Waverly Road which would be transferred to St.
Marys Cement and provide access to Cedar Crest Beach by a bridge and road connection
to West Beach Road,
. relocate a portion of Westside Creek, east and then south, into the portion of Wests ide
Marsh which will be retained;
G. A Letter of Intent to Implement Fish Habitat, Mitigation and Compensation Measures
dated August 27, 1997 ("Letter of Intent") has been executed by Blue Circle and the Central
Lake Ontario Conservation Authority (" CLOCA "). A copy of the Letter of Intent is contained
in Schedule "B" hereto. It is anticipated by the Parties that it will be executed in the near future
by the other parties to it, being the Ontario Ministry of Natural Resources and the Fisheries and
Habitat Management - Ontario Area of the Department of Fisheries and Oceans Canada and that
an extension to the dates in it will be required;
H. Blue Circle and CLOCA intend to enter into a monitoring and maintenance agreement
respecting certain lands and facilities, hereafter referred to ("Maintenance and Monitoring
Agreement");
1. The Municipality intends to enter into a Management Agreement with CLOCA respecting
the planning and management of the Westside Creek Diversion located on Westside Creek
Diversion Areas A and B, the Overflow Channel located on Overflow Channel Areas Band C,
the Reconfigured Westside Marsh, the Marsh Link Area, the Bowmanville Marsh and the
Bowmanville Valley Lands ("Management Agreement");
J. The Letter of Intent and the Maintenance and Monitoring Agreement will implement to
the extent reasonably possible, fish habitat, mitigation and compensation measures which are
intended to ensure that the reconfiguration of the Westside Marsh into the smaller "Reconfigured
W estside Marsh" (as hereafter defined) and the diversion of the W estside Creek to flow into the
Reconfigured Westside Marsh will not result in a net loss overall in fish habitat. Similarly, the
implementation of the Management Agreement is intended to ensure to the extent reasonably
-4-
possible, that there will be no net loss overall in wildlife habitat and vegetation through measures
that will be designed to appropriately replace the ecological functions of the present Westside
Marsh with appropriate ecological functions for the Reconfigured Westside Marsh, and the
"Marsh Link Area", the "Bowmanville Marsh" and the "Bowmanville Valley Lands" (all as
hereafter defined) and adjacent wetlands with which the Reconfigured Westside Marsh will inter-
act.
K. Ontario Hydro is the owner in fee simple in possession of those lands which comprise
certain portions of Lots 11, 12, 13, 14 and 15, Broken Front Concession, former Township of
Darlington, now in the Municipality of Clarington. They are referred to in these Principles as
the "Ontario Hydro Lands" and are shown on the Plan contained in Schedule "A" hereto;
L. Blue Circle intends to acquire perpetual easements from Ontario Hydro on the portions
of the Ontario Hydro Lands which are identified on the Plan contained in Schedule "A" hereto
and which are referred to in these Principles as the "Westside Creek Diversion Area A". Blue
Circle will transfer these easements to CLOCA forthwith after the completion of construction
of the "Westside Creek Diversion Works" (as hereafter defined);
M. "Westside Creek Diversion Area B" referred to in these Principles comprises those
portions of the Blue Circle Lands which are identified on the Plan contained in Schedule "A"
hereto. Title in fee simple in possession to the Westside Creek Diversion Area B will be
retained by Blue Circle;
N. "Overflow Channel Area A" and "Overflow Channel Area B" referred to in these
Principles comprise those portions of the Blue Circle Lands which are identified as such on the
Plan contained in Schedule "A" hereto. "Overflow Channel Area C" referred to in these
Principles presently comprises a portion of the Waverly Road Allowance identified on the
aforesaid Plan. Blue Circle will retain title in fee simple in possession in Overflow Channel
Area A and will transfer Overflow Channel Area B to CLOCA or as otherwise directed by the
Municipality .
-5-
O. The "Future Quarry Area" referred to in these Principles comprises the portion of the
Blue Circle Lands which is identified as such on the Plan contained in Schedule "A" hereto.
Blue Circle will retain title in fee simple in possession in the Future Quarry Area;
P. The "Reconfigured Westside Marsh" referred to in these Principles comprises the portion
of the Blue Circle Lands which are identified as such on the Plan contained in Schedule "A"
hereto. Blue Circle will transfer title in fee simple in possession in the Reconfigured Westside
Marsh to CLOCA or as otherwise directed by the Municipality;
Q. The "Marsh Link Area", "Bowmanville Marsh" and "Bowmanville Valley Lands"
referred to in these Principles comprise those portions of the Blue Circle Lands which are
identified as such on the Plan contained in Schedule "A" hereto. Blue Circle will transfer title
in possession in the Marsh Link Area, the Bowmanville Marsh, and the Bowmanville Valley
Lands to CLOCA or as otherwise directed by the Municipality, subject to the Municipality's
option to purchase them for a nominal consideration if CLOCA is dissolved or if its composition
and powers are materially altered from those in place on the date of these Principles ("Option
to Purchase");
R. Blue Circle will construct and install at its cost certain works and vegetation for the
Westside Creek Diversion on Westside Creek Diversion Areas A and B ("Westside Creek
Diversion Works") in accordance with the plans, drawings, specifications and schedule of
construction and installation contained in Schedule "D" hereto ("Westside Creek Diversion
Works Plan"), the Letter of Intent, and the Monitoring and Maintenance Agreement. Blue
Circle will maintain the W estside Creek Diversion Works as provided in the Letter of Intent and
the Monitoring and Maintenance Agreement;
S. Blue Circle will construct and install at its cost the Overflow Channel on Overflow
Channel Areas A, Band C in accordance with plans, drawings, specifications and schedule of
construction and installation contained in Schedule "E" hereto ("Overflow Channel Works
-6-
Plan"). Blue Circle will maintain the Overflow Channel Works as provided in the Letter of
Intent and the Monitoring and Maintenance Agreement;
T. Blue Circle will construct a bridge or culvert of appropriate dimensions and load carrying
capacity over or through the portion of Overflow Channel Area A to provide emergency access
by emergency vehicles including fire-fighting vehicles to the homes located on the lands within
registered plans of subdivision 318 and 659 via the Blue Circle Lands to Highway No. 401 as
provided in these Principles;
U. Without fettering Council in the exercise of its legislative discretion in order to establish
the Reconfigured Westside Marsh, the Marsh Link Area, the Bowmanville Marsh and the
Bowmanville Valley Lands in accordance with the intent of these Principles, the Parties intend
that a portion of Waverly Road should be closed and conveyed to Blue Circle as the owner in
fee simple of the abutting lands. Without fettering Council in the exercise of its legislative
discretion, the Parties intend that in the interim, the Municipality will lease a portion of a
existing private road located on the Blue Circle Land together with certain extensions thereof.
The roads referred to in these Principles are shown on the Road Map contained in Schedule "F"
hereto;
V. "Cove Road" identified on the Road Map contained in Schedule "F" hereto presently is
a private road extending from West Beach Road and terminating easterly of the Westside Creek.
The Municipality intends to seek to acquire Cove Road from the persons who have interests in
it and the necessary right-of-way for a single span bridge, over the Westside Creek ("Westside
Creek Bridge") and approaches which also are identified on the Road Map. Without fettering
the Municipality's Council in the exercise of its legislative discretion if Cove Road and the right-
of-way for the proposed Westside Creek Bridge and approaches are acquired by the
Municipality, the Municipality intends to reconstruct Cove Road and to construct Westside Creek
Bridge and dedicate the same as a public highway. This will provide a public highway
connection from Cedar Crest Beach Road to West Beach Road via Cove Road and the Westside
Creek Bridge.
-7-
The construction and reconstruction is intended to be undertaken in accordance with the plans
and drawings contained in Schedule "G" hereto ("Cove Road and Westside Creek Bridge Plans
and Specifications").
NOW THEREFORE WITNESSETH THAT in consideration of the premises and
the covenants hereinafter expressed, and the sum of two ($2.00) dollars of lawful money of
Canada, now paid by each Party to the others (the receipt whereof by each Party is hereby
acknowledged), the Parties hereto covenant and agree to and with each other as follows:
1. PrinciDles are Conditional
These Principles are conditional on,
(i) all necessary approvals of the undertakings referred to in these Principles being
granted pursuant to the Environmental Assessment Act and applicable legislation
of the Province of Ontario; and
(ii) all necessary approvals being obtained under applicable legislation of Canada.
2. Schedules
These Principles contain the following Schedules:
Schedule "A" "Plan Showing Areas and Description of Blue
Circle Lands"
Schedule "B"
"Letter of Intent"
Schedule "C"
Schedule "D"
Schedule "E"
"Statement of Purposes"
"Westside Creek Diversion Works Plan"
"Overflow Channel Works Plan"
Schedule "F"
"Road Map"
-8-
Schedule "G"
"Cove Road and Westside Creek Bridge Plans and
Specifications"
Schedule "H"
"Description of Reserves Abutting Portions of
Waverly Road
Schedule "I"
"Estimated Costs of Construction of Cove Road,
Westside Creek Bridge and Extensions of
Temporary Public Highway"
Schedule "J"
"Schedule of Construction of Westside Creek
Diversion Works"
Schedule "K"
"Plan Showing Easement Areas and Description of
Transferee and Scope"
Schedule "L"
"Modification of Region of Durham Official Plan"
Schedule "M"
"Modifications of Clarington Official Plan"
Schedule "N"
"Zoning Amendment I"
Schedule "0"
"Zoning Amendment 2"
Schedule "P"
"Permitted Encumbrances"
3. Waverlv Road
(a) Blue Circle has applied to the Municipality of Clarington for the enactment of the
necessary by-laws to close and authorize the conveyance to Blue Circle of the
portion of Waverly Road identified on the Road Map contained in Schedule "F"
hereto as "Proposed Closure Area A" together with the abutting reserves set out
in Schedule "H" hereto. Blue Circle at its expense will cause to be prepared and
deposited on title in the Land Registry Office, a Reference Plan identifying
Proposed Closure Area A, "Proposed Closure Area B", "Proposed Closure Area
C" and "Proposed Closure Area D" (each term as hereafter defined) as separate
Parts. The Parties will act expeditiously so that, if possible, since the hearing of
persons interested in the proposed by-law respecting Proposed Closure Area A
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and the abutting reserves set out in Schedule "H" hereto has been held by Council
September 29, 1997, Council will be in a position to make a decision on Blue
Circle's application as soon as is reasonably practicable to do so.
(b) Without fettering Council in the exercise of its legislative discretion, the Parties
express their present intention that as soon as is reasonably practicable after the
enactment of the dedication by-law referred to in Paragraph 6 hereof respecting
"Cove Road and the Westside Creek Bridge" (as hereafter defined), Council will
consider whether to close and authorize the conveyance to Blue Circle of
"Proposed Closure Area B" shown on the Road Map contained in Schedule "P"
hereto together with the abutting reserves set out in Schedule "H" hereto provided
that either the Municipality is satisfied that a cui de sac to the Municipality's rural
standards will be available for turning vehicles and is secured by a perpetual
easement transferred to the Municipality by Ontario Hydro at no cost to the
Municipality or the Municipality retains title to the land required from the
northerly portion of Proposed Closure Area B as a turning circle for vehicles
traversing Waverly Road.
(c) Without fettering Council in the exercise of its legislative discretion, the Parties
express their present intention that the consideration to be paid by Blue Circle to
the Municipality for the conveyance to Blue Circle of Proposed Closure Areas A
and B and the abutting reserves set out in Schedule "H" hereto, and by Blue
Circle, as its contribution to the "Cove Road and the Westside Creek Bridge
Works" (as hereafter defined) will be:
(i) the payment to the Municipality of the sum of $707,800.00 which shall
include $337,250.00 as the consideration for the transfer to Blue Circle
of Proposed Closure Area A, Proposed Closure Area B and the reserves
abutting them with the value of $337,250.00 being allocated to Proposed
Closure Area A, Proposed Closure Area B and the reserves abutting them
-10-
on a proportionate basis calculated on the areas of Proposed Closure Area
A, Proposed Closure Area B and the reserves abutting them;
(ii) the payment to CLOCA of at least the sum of $70,000.00 or to the
"CLOCA Foundation" (as hereinafter defined) of at least the sum of
$94,500.00 or of at least the sum of $70,000.00 to the Municipality or as
directed by the Municipality in accordance with paragraph 12;
(iii) the transfer to the Municipality of Parts 9 and 13 on draft plan of survey
prepared by Brown and Coggan under File No. 1970710;
(iv) the transfer of the Marsh Link Area, the Bowmanville Marsh and the
Bowmanville Valley Lands to CLOCA or as otherwise directed by the
Municipality in accordance with paragraph 8 (a) (ii);
(v) the delivery of transfers to CLOCA in escrow of the Reconfigured
Westside Marsh, with the exception of Part 9 on draft plan of survey
prepared by Brown and Coggan under File No. 1970710 as provided in
paragraph 8(a)(iv) of these Principles; and
(vi) the entering into by Blue Circle of the other agreements set out in these
Principles, all in accordance with the provisions of these Principles.
(d) Without fettering Council in the exercise of its legislative discretion, the Parties
express their present intention that on the application of Blue Circle, Council will
consider a by-law to close the portions of Waverly Road identified on the Road
Map contained in Schedule "F" hereto as "Proposed Closure Area C" and the
abutting reserves set out in Schedule "H" hereto and "Proposed Closure Area D"
and the abutting reserves set out in Schedule "H" hereto and will consider a by-
law to authorize the conveyance of Proposed Closure Area C to Blue Circle. The
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Parties acknowledge that the lands comprising Proposed Closure Area C and
abutting reserves are intended by Blue Circle to be part of a buffer zone for the
quarry on the Blue Circle Lands. Without fettering Council in the exercise of its
legislative discretion, the present intention of the Parties is that Council will
consider this intended use of Proposed Closure Area C and abutting reserves in
determining the consideration to be paid by Blue Circle in exchange for their
conveyance to Blue Circle by the Municipality. Council and Blue Circle may
also consider as part of the consideration for the conveyance of Proposed Closure
Area C and abutting reserves, accepting Blue Circle's covenant on terms
acceptable to both parties to keep in repair and maintain the bridge over the CN
railway right-of-way identified on the Road Map contained in Schedule "P"
hereto. It is understood and agreed by the Parties that when it submits its
application to the Municipality for the closure and conveyance to it of Proposed
Closure Area C, Blue Circle will provide the Municipality with evidence
satisfactory to the Municipality's Director of Public Works either that it owns the
abutting portions of Waverly Road with the exception of the reserves set out in
Schedule "H" hereto, or that the owners thereof have consented to the closure of
them as a public highway and conveyance of them to Blue Circle.
(e) Without fettering Council in the exercise of its legislative direction, it is the
intention of the Parties that on application of CLOCA, Council will consider by-
laws to close and to authorize the conveyance of Proposed Closure Area D
together with the abutting reserves set out in Schedule "H" hereto, to CLOCA.
Effective on the date of closing of the "Temporary Public Highway" (as
hereinafter defined), as a public highway and termination of the Lease (as
hereinafter defined), Blue Circle hereby irrevocably consents to the closure of
Proposed Closure Area D as a public highway and to its conveyance to CLOCA
for a nominal consideration.
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4. Lease. Improvement and Dedication of Temporary Public Hiehwav
(a) Forthwith after the execution of these Principles, Blue Circle will construct the
extension of the private road shown on the Road Map contained in Schedule "F"
to Waverly Road in accordance with plans and specifications approved by the
Municipality's Director of Public Works acting reasonably provided that the
Director shall have regard for the temporary nature of the Temporary Public
Highway in making his determination as aforesaid.
(b) If Council decides to pass the necessary by-laws to close and authorize the
conveyance to Blue Circle of Proposed Closure Area A and abutting reserves as
referred to in paragraph 3(a), prior to (1) the passing of the aforesaid by-laws by
Council and (2) the occurrence of the Closing Date, Blue Circle will lease
("Lease") on a wholly net basis, except as otherwise provided in paragraphs 4(a)
and 4(b), the portion of private road and the extension of it to Waverly Road
shown on the Road Map contained in Schedule "F" (collectively referred to as the
"Temporary Public Highway") to the Municipality for a single payment of a
capitalized rent of $2.00, the receipt whereof is hereby acknowledged by Blue
Circle. Until dedication of the Temporary Public Highway as a public highway,
Blue Circle shall be entitled to use it as a roadway for its operations. The Lease
shall provide that Blue Circle will have the right either to cross over the
Temporary Public Highway or to tunnel under the Temporary Public Highway or
to construct the bridge over the Temporary Public Highway including, without
limitation in all cases the right to install and maintain a conveyer for materials for
the purposes of transporting raw materials for processing at its plant; provided
that all costs of constructing and maintaining any such improvements shall be the
responsibility of Blue Circle and all such improvements shall be made in
accordance with plans and specifications approved by the Municipality's Director
of Public Works, acting reasonably and provided further that the use of the
Temporary Public Highway as a public highway is not interrupted except for
-13-
temporary disruptions first approved by the Director acting reasonably if an
alternate route acceptable to the Director is provided for the period of the
temporary disruption. Without limiting the generality of the foregoing, Blue
Circle shall be entitled to have at least a total of four truck crossing points across
the Temporary Public Highway and Waverly Road at such locations as may be
approved by the Municipality's Director of Public Works, acting reasonably. The
Lease shall provide that Blue Circle shall only have the right to exercise the
foregoing rights in the event that the terms of the escrow set out in paragraph
8(a)(iv) have extended more than three years from the Closing Date. The Lease
shall be subject to a condition subsequent of the transfer to Blue Circle of the
Proposed Closure Area A and abutting reserves referred to in paragraph 3(a) and
shall have a term of one year which shall be automatically renewed until it shall
terminate on the day on which the Municipality's Council passes a by-law
dedicating Cove Road and the Westside Creek Bridge (or any readjustment
thereto or alternative access as determined by Council) as a public highway.
Until Blue Circle gives the Municipality written notice pursuant to paragraph
8(a)(iv) requiring the return of the escrowed transfers and the repayment of the
sum of money referred to therein, Blue Circle will indemnify the Municipality
against the capital cost of necessary improvements to or reconstruction of the
portion of the road that contains a culvert under the Temporary Public Highway,
as may be deemed necessary by the Municipality's Director of Public Works
acting reasonably, provided that the Director shall have regard for the temporary
nature of the Temporary Public Highway in making his determination as
aforesaid. Without derogating from the foregoing, the Lease shall also provide
that the Municipality shall maintain at its expense the Temporary Public Highway
for the term of the Lease.
(c) Without fettering the Municipality's Council in the exercise of its legislative
discretion, the Parties express their present intention that by-laws will be passed:
-14-
(i) prior to the occurrence of the Closing Date to dedicate the Temporary
Public Highway as a public highway until the termination of the Lease;
and
(ii) on or as soon as is reasonably practicable after the dedication of Cove
Road and the Westside Creek Bridge as a public highway, to close the
Temporary Public Highway as a public highway.
5. Emerl!encv Access to Cedar Crest Beach Road
(a) Blue Circle hereby irrevocably licences to the Municipality for a nominal
consideration a portion of the Blue Circle Lands to be selected by Blue Circle
which is acceptable to the Municipality's Director of Public Works acting
reasonably to provide an emergency access route for emergency vehicles
including fire vehicles from Highway 401 to the westerly terminus of Cedar Crest
Beach Road and for residents of homes in plans of subdivision 318 and 659 in the
event of flood. The consideration for the licence hereby granted is a single
capitalized payment of $2.00, receipt whereof is hereby acknowledged by Blue
Circle. Subject to paragraph 5(c), the emergency access route is intended to be
the access route used by Blue Circle to its current dock with an extension to
Cedar Crest Road and a connection to Waverly Road. The emergency access
route will be kept in repair and will be maintained by Blue Circle at its expense.
Blue Circle shall install at its cost a barrier to non-emergency vehicles at the
southerly terminus of the emergency route.
The licence shall also provide that the Municipality, police and ambulance
services and the residents of homes within plans of subdivision 318 and 659 shall
use the emergency access route at their own risk. The Municipality for itself and
the residents of plans of subdivision 318 and 659 who use the emergency access
route in the event of a flood, and such other services for themselves shall
-15-
indemnify and save Blue Circle harmless from any costs, damages, losses or
liability arising from or in consequence of the use of such emergency access
route. The licence shall automatically terminate on the opening of either of a
grade separation at the intersection of Port Darlington Road and the CN railway
right of way or on opening of extensions either of Duke Street or Liberty Street
over or under Highway 401 and via a grade separation at the intersection of Duke
Street or Liberty Street, as the case may be, and the CN railway right of way,
whichever shall first occur. In the event that after the termination of the licence
the residents of homes in plans of subdivision 318 and 659 need to cross the Blue
Circle Lands as a result of flooding, Blue Circle hereby irrevocably consents to
such crossing(s).
(b) If the emergency access route referred to in paragraph 5(a) will traverse the
Overflow Channel Area A a bridge or culvert of appropriate dimensions and load
carrying capacity to accommodate emergency vehicles using the route will be
constructed by Blue Circle at its cost in accordance with plans and drawings
which have been first approved in writing by the Municipality's Director of
Public Works. The Director shall not refuse either to accept an emergency access
route or to approve plans and drawings for a bridge or culvert if the bridge or
culvert will have sufficient load bearing capacity to accommodate fire vehicles
and the emergency access route will be designed to accommodate radii for fire
vehicles.
(c) Blue Circle may from time to time replace the emergency access route referred
to in paragraphs 5(a) and 5(b) with a new emergency access route on the Blue
Circle Lands from Cedar Crest Beach Road to Highway 401. Paragraphs 5(a)
and 5(b) apply in respect of each substituted emergency access route with
necessary changes to it to give effect to this paragraph 5( c) being deemed to have
been made.
-16-
6. Cove Road and the Westside Creek Bridl!e
(a) Without fettering Council in the exercise of its legislative discretion, the Parties
express their present intention that after complying with all legal requirements,
the Municipality as soon as reasonably practicable:
(i) will acquire title to the lands required for Cove Road and the Westside
Creek Bridge;
(ii) will reconstruct Cove Road and the approaches to it, and construct
Westside Creek Bridge and approaches to it in accordance with all legal
requirements and the Cove Road and the Westside Creek Bridge Plans and
Specifications; and
(iii) forthwith after the Municipality's Director of Public Works gives Blue
Circle written notice that Cove Road and the Westside Creek Bridge and
the approaches to them have been reconstructed or constructed to his
satisfaction, they will be dedicated by by-law passed pursuant to the
Municipal Act as a public highway and the obligation to keep Cove Road,
the Westside Creek Bridge and approaches to them in repair and
maintained will be assumed by the Municipality pursuant to the Municipal
Act.
(b) The Parties acknowledge that the legal requirements referred to in paragraph 6(a)
include the requirement to comply with the Ontario Environmental Assessment
Act, the Navigable Waters Protection Act (if applicable), the Canada
Environmental Assessment Act (if applicable), as well as regulations enforced by
CLOCA.
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(c) The preliminary estimate of the Parties of all costs of acquiring the interests of
all persons in Cove Road, the Westside Creek Bridge and the approaches to them,
the reconstruction of Cove Road, and of the construction of the Westside Creek
Bridge and approaches to them is contained in Schedule "I" hereto. In the event
that the total as-built costs of reconstruction and construction of the Cove Road
and Westside Creek Bridge Works exceeds the total of all of the estimated costs
set out in Schedule "I", then in respect of servicing and associated costs for only
Ontario Hydro, Clarington Hydro and Bell Canada, Blue Circle will pay to the
Municipality an amount equal to one-half the difference of the increase of such
costs in excess of the estimates for Ontario Hydro, Clarington Hydro and Bell
Canada after being given written notice of the aforesaid as-built costs by the
Municipality's Director of Public Works forthwith after written demand therefor
is given to it by the Municipality.
7. Actions Prior to and After Closinl! Date
(a) Prior to the "Closing Date" (as hereafter defined) Blue Circle at its cost,
(i) will execute an agreement for the acquisition of a perpetual easement from
Ontario Hydro in that portion of the Ontario Hydro Lands which comprise
the Westside Creek Diversion Area A which will be transferred on
completion of the Westside Creek Diversion Works to CLOCA for a
nominal consideration;
(ii) will execute a letter of intent to implement fish habitat mitigation and
compensation measures with the Department of Fisheries and Oceans,
Canada and other persons substantially with the content of the Letter of
Intent contained in Schedule "B" hereto subject from time to time to an
extension of timing set out therein to accommodate the timing
contemplated by these Principles and any delays resulting from the
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Municipality's inability to satisfy the terms of the escrow set out III
paragraph 8(a)(iv);
(iii) will execute a Monitoring and Maintenance agreement with CLOCA
respecting the Westside Creek Diversion Areas A and B, and Overflow
Channel Areas A, B and C which contain terms satisfactory to the
Municipality's Director of Public Works;
(iv) will prepare and use its best efforts to obtain the written approval of the
Department of Fisheries and Oceans, Canada, the Ministry of Natural
Resources, CLOCA and the Municipality's Director of Public Works of
the Westside Creek Diversion Works Plan, Dyke Area A, Dyke Area B
and the Overflow Channel Works Plan. (The approved plans are referred
to in these Principles as the "Approved Westside Creek Diversion Works
Plans" and the "Approved Channel Overflow Works Plans" respectively.)
(b) After the Closing Date, and in any event, no later than 12 months after the date
of closing of the Temporary Public Highway as a public highway, Blue Circle at
its cost will commence the construction and installation of the Wests ide Creek
Diversion Works and will proceed to complete the same in good faith and with
reasonable expedition in accordance with the Approved Westside Creek Diversion
Works Plan and with the schedule of construction contained in Schedule "J"
hereto, subject to "Force Majeure" (as hereafter defined), provided that if the
Letter of Intent is not amended from time to time to coincide with the aforesaid
date of commencement, the date of commencement set out in this paragraph 7(b)
shall be deemed to be that set out in the Letter of Intent.
(c) After the Closing Date, and in any event no later than 12 months after the date
of closing of the Temporary Public Highway as a public highway, Blue Circle at
its cost will commence the construction and installation of the Overflow Channel
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Works, and proceed to complete the same in good faith and with reasonable
expedition in accordance with the Approved Overflow Channel Works Plan and
with the schedule of construction contained in Schedule" J" hereto, provided that
if the Letter of Intent is not amended from time to time to coincide with the
aforesaid date of commencement, the date of commencement set out in this
paragraph 7(c) shall be deemed to be that set out in the Letter of Intent. Blue
Circle's obligation for the Overflow Channel Works is subject to the Municipality
conveying Proposed Closure Area D and the abutting reserves set out in Schedule
"H" hereto to CLOCA and CLOCA allowing Blue Circle to have access to
complete such works.
(d) For the purposes of these Principles, the term "Force Majeure" means any delay
for the duration of the delay which is imposed by reason of strikes, lockouts;
riots, wars or acts of military authority, acts of public enemies, sabotage,
epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil
commotion, fire or explosion; flood, wind, water, earthquake or other casualty,
prohibitory govermnental laws or regulations, or an Act of God and any act,
omission or event whether of the kind herein enumerated or otherwise not within
the control of Blue Circle, and not caused by the deliberate default or act or
omission by Blue Circle and not avoidable by the exercise of reasonable effort or
foresight by Blue Circle.
8. Closinl! Date
(a) On the Closing Date,
(i) if (1) the portion of Waverly Road comprising the land within Proposed
Closure Area A has been closed as a public highway by the Municipality's
Council by the enactment of the necessary by-law under the Municipal
Act, (2) that by-law has been registered in the Registry Office for the
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Registry Division of Durham (No. 40), and (3) the Municipality's Council
has authorized the transfer to Blue Circle of Proposed Closure Area A
together with the abutting reserves more particularly described in Schedule
"H" hereto, the Municipality shall transfer Proposed Closure Area A and
the abutting reserves to Blue Circle in fee simple, free and clear of
encumbrances and restrictions except for Permitted Encumbrances set out
in Schedule "P" and the parties agree that for purposes of the Land
Transfer Tax Affidavit, the value of the consideration for this transfer
shall be based on multiplying the total consideration of $337,250.00 by a
fraction, the denominator of which shall be the total area of Proposed
Closure Areas A and B and the abutting reserves and the numerator of
which shall be the area of Proposed Closure Area A and its immediate
abutting reserves; and
(ii) Blue Circle shall transfer to CLOCA or as otherwise directed by the
Municipality the Marsh Link Area, the Bowmanville Marsh and the
Bowmanville Valley Lands, in fee simple, free and clear of encumbrances
and restrictions other than Permitted Encumbrances set out in Schedule
"P" and the Option to Purchase which Blue Circle shall grant to the
Municipality, except that in the case of the Marsh Link Area Blue Circle
may reserve to itself a perpetual easement of access to the W estside Creek
Diversion Area "B" over Easement Area "B" shown on the plan contained
in Schedule "K" hereto as provided in Schedule "K"; and
(iii) Blue Circle shall pay the sum of $707,800.00 to the Municipality in
accordance with paragraph 3(c) and the sum of either not less than
$70,000.00 to CLOCA or not less than $94,500.00 to the CLOCA
Foundation or the payment of at least $70,000.00 to the Municipality or
as directed by the Municipality in accordance with paragraph 12;
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(iv) Blue Circle shall deliver in escrow to the Municipality, a transfer of the
Reconfigured Westside Marsh, with the exception of Part 9 on draft plan
of survey of record prepared by Brown and Coggan under File No.
1970710 to CLOCA or as otherwise directed by the Municipality in fee
simple, free and clear of encumbrances and restrictions other than (1) a
perpetual easement of support of Dyke Area "B" in accordance with the
plan contained and the relevant portion of the text of Schedule "K", (2)
a temporary easement to permit the construction and installation of the
Westside Creek Diversion Works and monitoring and maintenance of the
same in accordance with the Letter of Intent and the Monitoring and
Maintenance Agreement, (3) Permitted Encumbrances set out in Schedule
"P", and (4) the Option to Purchase the Reconfigured Westside Marsh
which Blue Circle shall grant to the Municipality. The escrow condition
of delivery shall be fully satisfied and the delivery of the transfer shall be
effective on the latest to occur of (1) the dedication of Cove Road, the
Westside Creek Bridge and approaches to them as a public highway, (2)
the registration of a by-law closing the Temporary Public Highway as a
public highway in accordance with the Municipal Act, and (3) the
surrender of the Lease of the Temporary Public Highway. If the escrow
has not been satisfied on or before the expiry of 3 years following the
Closing Date (which shall be automatically extended by the period of any
litigation preventing the Cove Road reconstruction, the Westside Creek
Bridge construction, the dedication of Cove Road and the Westside Creek
Bridge and approaches as a public highway or the closing of the
Temporary Public Highway as a public highway and the period of Force
Majeure, provided that such extension shall occur only so long as the
Municipality is actively conducting such litigation in good faith) Blue
Circle by written notice given to the Municipality may require (1) the
return of the escrowed transfer of the Reconfigured Westside Marsh, (2)
the return of the escrowed transfers of the easements referred to in
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paragraph 8(a)(v), (3) if Proposed Closure Area B with abutting reserves
have not been conveyed to Blue Circle by the Municipality, the repayment
of a sum equal to the proportionate value of the sum of $337,250.00 paid
by Blue Circle to the Municipality on the Closing Date which is
attributable to Proposed Closure Area B and abutting reserves with the
calculation to be made in the same manner as set out in paragraph 8(a)(i),
and (4) the repayment to Blue Circle of the sum of $370,550.00 paid by
Blue Circle to the Municipality on the Closing Date less one half of the
costs expended by the Municipality following the date of execution by the
Parties of the Principles either to payor to indemnify itself in respect of
the costs incurred for one or more of the purposes set out in Schedule
"C". If the escrowed transfer of the Reconfigured Wests ide Marsh and
escrowed transfer of the easements are returned to Blue Circle, Blue
Circle shall have no further obligation hereunder to transfer the same. In
the event that the transfer of the Reconfigured Westside Marsh is rendered
void by reason of the provisions of the Perpetuities Act, R.S.O. 1990,
c.P.9, as amended or any successor legislation, the obligations of Blue
Circle with respect to the fisheries habitat referred to in the Letter of
Intent, the obligations referred to in the Monitoring and Maintenance
Agreement with CLOCA and the obligations with respect to the
construction of the Westside Creek Diversion Works shall also be
rendered void.
(v) Subject to paragraph 8(a)(iv), Blue Circle shall deliver in escrow to the
Municipality transfers to CLOCA or otherwise directed by the
Municipality of perpetual easements in Easement Areas "C", "D,", "Dz",
"G" and "R" shown on the plan contained in Schedule "K" hereto, free
and clear of encumbrances and restrictions other than Permitted
Encumbrances set out in Schedule "P" and the Option to Purchase which
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Blue Circle shall grant to the Municipality, in the areas, for the purposes
and to the transferees also as set out in Schedule "K" hereto; and
(vi) Blue Circle shall deliver to the Municipality transfers of Parts 9 and 13 on
draft plan of survey prepared by Brown and Coggan under File No.
1970710 in fee simple free and clear of all encumbrances and restrictions
other than Permitted Encumbrances set out in Schedule "P".
The Option to Purchase referred to in these Principles shall be granted for a nominal
consideration and have a form and content satisfactory to the Municipality's solicitor
acting reasonably, provided that the Municipality assumes the rights and duties of
CLOCA under the Monitoring and Maintenance Agreement.
(b) The Closing Date ("Closing Date") shall be three business days (excluding
Saturdays, Sundays, and statutory holidays) after the last to occur of the following
events:
(i) satisfaction of the conditions set out in paragraph 1 of these Principles;
(ii) the passing of by-laws by Council to close and authorize the conveyance
of the portion of Waverly Road comprising the Proposed Closure Area A
and reserves abutting such Area;
(iii) the Lease to the Municipality by Blue Circle of the Temporary Public
Highway;
(iv) the passing of a by-law by the Municipality to dedicate the Temporary
Public Highway until the expiry of the term of the Lease thereof to the
Municipality;
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(v) the date of approval of the later to be approved of the Approved Westside
Creek Diversion Works Plan and the Approved Overflow Channel Works
Plan as referred to in paragraph 7;
(vi) the execution by Blue Circle and the other parties to it of the Letter of
Intent referred to in paragraph 7(a)(ii);
(vii) the execution by Blue Circle and the other party to it of the Monitoring
and Maintenance Agreement referred to in paragraph 10;
(viii) the execution of an agreement by Blue Circle and Ontario Hydro to
transfer an easement in Westside Creek Diversion Area A to CLOCA on
completion of the construction of the Westside Creek Diversion Works;
(ix) plans of survey have been prepared and deposited on title as provided in
paragraph 16;
(x) satisfaction of the conditions set out in paragraph 23 of these Principles;
and
(xi) the completion of the acquisition by the Municipality of all lands and
interests in land, required for the reconstruction of Cove Road and the
construction of the Westside Creek Bridge.
9. Fisheries Habitat
Provided that the Letter of Intent containing terms satisfactory to Blue Circle acting
reasonably is executed on behalf of Blue Circle, CLOCA, the Ontario Ministry of Natural
Resources and the Fisheries and Habitat Management - Ontario Area of the Department of
Fisheries and Oceans, Canada, Blue Circle at its cost and in accordance with paragraphs 7(b)
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and 7(c) hereof, will construct and install the Westside Creek Diversion Works including the
dykes on Dyke Areas A and B shown on Schedule "A" hereto in accordance with the Approved
Westside Creek Diversion Works Plan and the Approved Overflow Channel Plan and maintain
the same at its cost in accordance with the provisions of the Letter of Intent and the Monitoring
and Maintenance Agreement subject to Force Majeure.
10. Monitorinl! and Maintenance Al!reement
(a) Forthwith after the execution of these Principles, Blue Circle will enter into a
Monitoring and Maintenance Agreement with CLOCA containing terms
satisfactory to Blue Circle acting reasonably, respecting the Westside Creek
Diversion Works, and the Overflow Channel Works.
(b) Subject to the terms of these Principles, Blue Circle will perform each of its
covenants to CLOCA respecting the Westside Creek Diversion Works and the
Overflow Channel Works which are contained in the Monitoring and Maintenance
Agreement subject to Force Majeure.
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11. Manal!:ement Al!:reement
(a) The Municipality will use its best efforts to settle the terms of and will execute
an appropriate Management Agreement with CLOCA in respect of the planning
and the management of the "Westside/Bowmanville Marsh Wetland Complex"
which comprises the Westside Creek Diversion Areas A and B, the Overflow
Channel Areas A, Band C, Dyke Area B, the Reconfigured Westside Marsh, the
Marsh Link Area, the Bowmanville Marsh, the Bowmanville Valleylands and the
wetlands and valleylands south of the CN railway.
(b) The principal objective of the Management Agreement will be to ensure to the
extent reasonably possible, by the actions of the parties to it that there will be no
net loss overall in wildlife habitat and vegetation of the present Wests ide Marsh.
The Management Agreement will define the roles and responsibilities including
the financial responsibilities of the parties to it, as well as the members of the
general community who are interested in ensuring that the ecological functions of
the present Westside Marsh will be replaced with appropriate ecological functions
in the Westside/Bowmanville Marsh Wetland Complex. In order to address this
and related issues, the Municipality will co-operate with CLOCA in the
preparation of a Management Plan for the Westside/Bowmanville Marsh Wetland
Complex.
12. Contribution to Start-Un Process
(a) To assist CLOCA in obtaining necessary funds to meet the start-up costs of its
management of the Westside/Bowmanville Marsh Wetland Complex, conditional
on (1) Blue Circle paying to the Municipality the sum of $707,800.00 on the
Closing Date; and (2) Blue Circle paying the sum of either at least $70,000.00
either to CLOCA or at least the sum of $94,500.00 to a charitable organization
for which CLOCA is seeking registration as an organization to which tax
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deductible donations may be made ("CLOCA Foundation") or the payment of at
least $70,000.00 to the Municipality or as directed by the Municipality in
accordance with paragraph 12(b) on the Closing Date, (3) the transfers to
CLOCA of the lands and easements referred to in paragraph 8; and (4) the
approval by the Municipality of the terms of reference for a study, the
Municipality intends to pay to CLOCA a sum of money to be settled with
CLOCA which shall not exceed $100,000.00, the payments to be made in
response to periodic invoices to the Corporation as work is completed for the
preparation of a Management Plan for the Westside/Bowmanville Marsh Wetland
Complex, provided that the Closing Date has occurred before any payment is
made to CLOCA by the Municipality.
(b) The Parties acknowledge that Blue Circle's payment either of at least the sum of
$70,000.00 either to CLOCA or at least the sum of $94,500.00 to the CLOCA
Foundation as referred to in paragraph 8(a)(iii) is intended to be used as start-up
funds for the implementation of the Management Plan provisions, respecting the
ecological functions of the Westside/Bowmanville Marsh Wetland Complex. In
the event that before the Closing Date the Municipality directs that Blue Circle
transfer the Reconfigured Westside Marsh to a transferee other than CLOCA,
Blue Circle shall pay the aforesaid sum of at least $70,000.00 either to the
Municipality or as the Municipality directs, to be used by the payee as the
aforesaid start -up funds.
13. Ontario Hvdro Easement
Subject to the terms of these Principles, Blue Circle will enter into an agreement with
Ontario Hydro containing terms satisfactory to Blue Circle acting reasonably to permit Blue
Circle to construct and install the Westside Creek Diversion Works on Westside Creek Diversion
Area A including the dyke on Dyke Area A in accordance with the Approved Westside Creek
Diversion Works Plan, the Letter of Intent and the Monitoring and Maintenance Agreement.
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The agreement shall provide for the transfer, at Blue Circle's cost, of a perpetual easement in
Westside Creek Diversion Area A to CLOCA and, if acceptable to Ontario Hydro, to Blue
Circle forthwith after CLOCA gives notice to Blue Circle in writing that the Westside Creek
Diversion Works on Westside Creek Diversion Area A have been completed to CLOCA's
satisfaction. The easement shall be transferred for a nominal consideration and shall be in a
form and have a content that is satisfactory to the Municipality's solicitor acting reasonably.
14. Westside Creek Diversion
Subject to the terms of these Principles, Blue Circle will construct and install at its cost
certain works and vegetation for the Westside Creek Diversion on Westside Creek Diversion
Areas A and B ("Westside Creek Diversion Works") in accordance with the plans, drawings,
specifications and schedule of construction and installation contained in the Approved "Westside
Creek Diversion Works Plan", the Letter of Intent, and the Monitoring and Maintenance
Agreement. Blue Circle will maintain the Westside Creek Diversion Works to the extent
provided in the Letter of Intent and the Monitoring and Maintenance Agreement.
15. Overflow Channel Works
Subject to the terms of these Principles, Blue Circle will construct and install at its cost
the Overflow Channel on Overflow Channel Areas A, Band C in accordance with the Approved
Overflow Channel Works Plan. Blue Circle will maintain the Overflow Channel Works to the
extent provided in the Letter of Intent and the Monitoring and Maintenance Agreement.
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16. Description and Transfers
(a) Blue Circle at its cost shall prepare and deposit in the Land Registry Office for
the Registry Division of Durham (No. 40), plans of survey of record identifying
the Reconfigured Westside Marsh, the Marsh Link Area, the Bowmanville Marsh,
the Bowmanville Valley lands, Overflow Channel Areas A, B and C, Proposed
Closure Areas A, B, C and D, Westside Creek Diversion Areas A and B, Dyke
Area B and Easement Areas "B" to "H" inclusive, as referred to in these
Principles.
(b) All transfers to CLOCA or as otherwise directed by the Municipality shall have
a form and content satisfactory to the Municipality's solicitor, acting reasonably.
All govermnental fees and taxes payable on the registration of such transfers shall
be paid in equal shares by Blue Circle and by the Municipality.
(c) The Municipality at its cost shall prepare and register in the Land Registry Office
for the Registry Division of Durham (No. 40), plans of survey of record
identifying Cove Road and the Westside Creek Bridge, inclusive as referred to
in these Principles.
17. Securitv Fence and Silroae:e
Forthwith after completion of construction of the Westside Creek Diversion Works and,
the dykes located on Dyke Areas A and B, Blue Circle will construct and maintain signage
warning of quarrying operations and a chainlink security fence with a minimum height of 6 feet
with gates at locations first approved by the Municipality's Director of Public Works acting
reasonably and to the satisfaction of Ontario Hydro, CLOCA and the Municipality's Director
of Public Works, provided that prior to the commencement of quarrying operations including
any excavation on any portion of the Future Quarry Area, Blue Circle may install a farm fence
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with a minimum height of 4 feet which shall be replaced by Blue Circle with the aforesaid
security fence before quarrying operations are begun.
18. Supply of Aeereeate and Concrete
When tenders are called for the construction and installation of the Cove Road and the
Westside Creek Bridge Works, the Municipality will provide in the tender documents that
aggregate and concrete supplies for the Works shall be purchased from Blue Circle, provided
the prices to be paid therefor by the tenderer whose offer to construct and install is accepted by
the Municipality do not exceed the then current market prices for these products in the
Municipality that would be paid by the contractor but for the provisions of this paragraph 18.
19. Official Plan Modifications and Zonine Amendments
(a) Without fettering the Municipality's Council in the exercise of its legislative
discretion, it is the present intention of the Parties that forthwith after the passing
of by-laws to close Closure Area A as a public highway and authorize its
conveyance with the abutting reserves to Blue Circle pursuant to these Principles,
(1) the Municipality will request that the modifications to the Region of Durham
Official Plan and the Clarington Official Plan contained in Schedules "L" and
"M" hereto, respectively, be made, and (2) after complying with the provisions
of the Planning Act, will enact the amendments to its Zoning By-law which are
set out in Schedule "N" hereto. Blue Circle will not object to any of the
aforesaid Official Plan provisions and related designations, provided that the
relevant approving authority continues to defer (1) all of the policies in Section
16.5 of the Clarington Official Plan, and (2) the words "and a commercial
docking facility" in line 5 of Section 18.2.2, clause 18.2.2(a) and the dock area
on the Blue Circle Lands which is shown on Map A-5 of the Region of Durham
Official Plan, until the Temporary Public Highway is closed as a public highway
and the Lease of the Temporary Public Highway is released to Blue Circle.
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(b) Without fettering the Municipality's Council in the exercise of its legislative
discretion, it is the present intention of the Parties that Council will enact the
amendments to its Zoning By-law which are set out in Schedule "0" hereto as
soon as is reasonably practicable after Proposed Closure Area B with abutting
reserves is transferred by the Municipality to Blue Circle, and Blue Circle's
licence to extract aggregate is amended to include Proposed Closure Areas A and
B and to exclude the Reconfigured Westside Marsh. After the escrow terms of
paragraph 8(a)(iv) have been satisfied, Blue Circle will act in good faith and with
reasonable expedition in applying for and in prosecuting its application for the
aforesaid amendment to its aggregate extraction licence under the Aggregate
Resources Act.
20. Waterfront Trail Relocation
The Municipality will consent to the relocation of any portion of the Ontario Hydro
Lands which have been licensed to the Municipality and have been developed for the purposes
of a waterfront trail for the use of members of the public that coincides with anyone or more
portions of Westside Creek Diversion Area A, provided that (1) the Municipality's Director of
Planning and Development approves the design and specifications therefor in writing which shall
not exceed the standard of surface improvement of the existing Waterfront Trail, (2) the cost
thereof is paid by Blue Circle, and (3) Blue Circle provides a temporary aligmnent satisfactory
to the Municipality's Director of Planning and Development acting reasonably for the portion
of the Waterfront Trail in question throughout the construction period which is suitable for use
by the public from April 1 to October 31 of the year(s) of construction of the Westside Creek
Division Works. Notwithstanding the foregoing, the Municipality agrees that Blue Circle may
interrupt the Waterfront Trail for construction purposes for reasonable periods of time, provided
that Blue Circle gives notice in writing to the Municipality's Director of Public Works at least
48 hours before each interruption stating the likely duration of the interruption in question and
installs signs approved by the aforesaid Director at either end of the Trail to notify members of
the public that the portion of the Trail in question is closed.
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21. Removal of CBM Crusher
No later than two years after the later of the days on which a by-law is registered closing
the Temporary Public Highway as a public highway and the Lease of the Temporary Public
Highway is released to Blue Circle, Blue Circle at its cost shall remove the crusher presently
located on the portion of the Blue Circle Lands which is adjacent to the Ontario Hydro Lands
and presently used in connection with the CBM operations, from the Blue Circle Lands.
Following the removal of the aforesaid crusher Blue Circle will not instal or cause or suffer any
person to instal a crusher dedicated for use in the CBM operations on any portion of the Blue
Circle Lands.
22. Interdevendencv of Princivles and Covenants Not to Merl!:e
(a) Each of the Principles contained herein is interdependent until the Closing Date
upon the performance of the covenants of the Parties that are required to be
completed prior to or on the Closing Date pursuant to paragraphs 7(a) and 8(a).
(b) All covenants, provisions and terms contained in these Principles on the part of
both Blue Circle (save for title) and the Municipality shall not merge on the
Closing Date but shall survive the Closing Date and for greater clarification, shall
not merge upon the delivery of any transfer of any of the Blue Circle Lands to
CLOCA or as the Municipality may direct.
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23. Conditions of Blue Circle
These Principles are conditional on Blue Circle on or before the date of Unwinding set
out in paragraph 24 satisfying the following conditions:
(a) Blue Circle being able to satisfy the requirements to obtain the necessary
agreements and approval from third parties as set out in subparagraphs (i), (ii),
(iii) and (iv) inclusive of paragraph 7(a) hereof;
(b) Blue Circle obtaining the necessary approval and appropriate partial discharges
and postponements in favour of the transfers and easements of portions of the
Blue Circle Lands which are to be given under these Principles by Blue Circle
from the holder of all trust indentures, charges and mortgages affecting all or any
portion of the Blue Circle Lands which are to be included in such transfers or
easements; and
(c) Blue Circle either obtaining the necessary consents under the severance provisions
of the Ontario Planning Act to the partial discharges of all trust indentures,
charges and mortgages affecting the lands being transferred by Blue Circle under
these Principles or the Municipality agreeing to take title to all such lands so that
such consents are not required pursuant to section 50(17)(c) of the Planning Act.
24. Unwindinl! of Principles
In the event that any of the conditions referred to in paragraph 1 and paragraph 23 or any
of the events listed in paragraph 8(b) is not satisfied prior to December 31, 1999, these
Principles shall terminate and have no force or effect ("Unwinding"). In the event of an
Unwinding of these Principles, neither Party hereto shall have any liability whatsoever to the
other Party hereto.
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25. Environmental Condition
Immediately after execution of these Principles, Blue Circle shall provide the
Municipality and/or CLOCA with access to those portions of the Blue Circle Lands which are
to be transferred to CLOCA or as the Municipality may otherwise direct pursuant to these
Principles for the purposes of the performing of Environmental Site Assessments by qualified
professional environmental consultants. Such access shall be subject to the rights of any existing
tenants of such lands and the Municipality or CLOCA as the case may be shall indemnify and
save Blue Circle harmless from any costs, damages or liability whatsoever or injury to persons
or animals arising by reason of or in consequence of such access being given. Upon completion
of such inspections as the Municipality or CLOCA may deem appropriate, complete copies of
all reports or other written correspondence or memoranda dealing with such inspections shall
be delivered to Blue Circle. These Principles are conditional within the time frame set out
herein on the Municipality's Directors of Planning and Development and Public Works in
consultation with CLOCA, each acting reasonably, being satisfied that the lands to be transferred
to CLOCA or as otherwise directed by the Municipality are not unacceptably contaminated
having regard to the purpose of the transfers as contemplated in these Principles. If written
notice is given by the Municipality to Blue Circle prior to the expiry of the 45 day period
commencing on the day on which these Principles are executed that the aforesaid lands or any
of them are unacceptably contaminated, these Principles shall terminate and neither Party shall
have any liability to the other and if no such notice is given, this condition shall be deemed to
be satisfied. This condition is included in these Principles for the benefit of the Municipality
and may be waived by the Municipality by notice in writing given to Blue Circle.
26. Assumption Aereement ReQuired
If Blue Circle desires to sell, lease including renewals for a term of twenty-one (21) years
or more or charge the Blue Circle Lands prior to the Closing Date, Blue Circle shall first require
the proposed purchaser or lessee to enter into an agreement with the Municipality to be bound
by these Principles with respect to that portion of the Blue Circle Lands being acquired by them
-35-
to the same extent as if such proposed purchaser or lessee was a party to these Principles.
Where a mortgage, charge, lease, assignment of lease or sublease of a leasehold interest is given
by way of security for financing, then such mortgagee, chargee, lessee, assignee or sublessee
thereunder shall not be bound to assume such of Blue Circle's obligations and covenants unless
and until such mortgagee, chargee, lessee, assignee or sublessee takes possession or control of
the Blue Circle Lands pursuant to such security and then only for such period of time as they
remain in possession or control of the Blue Circle Lands. The parties agree that these Principles
do not create an interest in land other than in those portions of the Blue Circle Lands to be
conveyed to CLOCA or the Municipality as set out herein and neither these Principles nor any
notice, caution or other registration relating to these Principles shall be registered, filed or
recorded in any way against the title to the balance of the Blue Circle Lands.
27. Governinl! Law
These Principles are governed by and shall be interpreted and enforced in accordance
with the laws of the Province of Ontario, Canada.
28. Time of Essence
Time shall be of the essence of these Principles.
29. Effect
These Principles are binding on and enure to the benefit of the Parties and their
respective successors and assigns.
-36-
30. Notice
If any notice or other document is required to be or may be given by either Party hereto
to the other or by any official of the Municipality to Blue Circle under this Agreement, such
notice shall be transmitted by telefax or mailed by prepaid registered post or delivered to:
Blue Circle:
Blue Circle Canada Inc.
400 Waverly Road South
Bowmanville, Ontario
LiC 3K3
Attention: Plant Manager
Phone No.:
Fax No.:
(905) 623-3341
(905) 623-4695
The Municipality:
The Corporation of the Municipality of Clarington
40 Temperance Street
Bowmanville, Ontario
LiC 3A6
Attention: Chief Administrative Officer
Phone No.:
Fax No.:
(905) 623-3379
(905) 623-0830
or such other telefax number or address of which either Party has notified the other Party in
writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient
notice under the terms of this agreement and if telefaxed or delivered prior to 4:30 p.m. on any
business day (excluding Saturdays, Sundays and statutory holidays) shall be deemed to have been
received at the time of delivery or transmission and if mailed by pre-paid registered mail, it shall
be deemed to have been received on the third business day (excluding Saturdays, Sundays and
statutory holidays) following the mailing thereof. Notwithstanding the foregoing, in the event
that it may be reasonably anticipated that due to Force Majeure any notice will not be received
within the time limit set out above, then such notice shall be sent by an alternate means of
transportation which it may reasonably be anticipated will cause the notice to be received
reasonably expeditiously by the addressee.
-37-
31. Authoritv of MuuiciDalitv
Blue Circle acknowledges and agrees that the Municipality has authority to enter into this
Agreement, that every provision hereof is authorized by the law and is fully enforceable by the
Parties, and that this Agreement is made by the Municipality in reliance on the acknowledgement
and agreement of Blue Circle as aforesaid.
IN WITNESS WHEREOF the Parties hereto have hereunto set their hands and seals the
day and year first above written and the Parties hereto have hereunto affixed their corporate
seals by the hands of their proper officers duly authorized in that behalf.
SIGNED, SEALED AND ) THE CORPORATION OF THE
) MUNICIPALITY OF CLARINGTON
DELIVERED )
)
) Mayor
)
)
)
) Clerk
)
)
) BLUE CIRCLE CANADA INC.
)
)
) Per:
) Name: Title:
)
)
) Per:
) Name: Title:
)
)
LOT 14
LOT 12
J
BLUE
CIRCLE
LANDS
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OVERFLOW '
CHANNE
LANDS'
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)
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OVERFLOW I
CHANNEL :
LANDS -A- I
Ontario
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PROPOSED 2: 1 QUARRY
SlOE SLOPE &: BENCH
PROPOSED DIVERSION
CHANNEl SlOE SlOPE
2 or 3:1
SCHEDULE "A"
SCHEDULE "A"
DESCRIPTION OF BLUE CIRCLE LANDS
FIRSTLY:
ALL AND SINGULAR those certain parcels or tracts of land and premises
situate, lying and being in the Town of Bowmanville, in the Township of Darlington, in the
County of Durham, in the Province of Ontario, and being composed of parts of Township Lot
Eleven (11) in the Broken Front Concession, now within the limits of the said Town of
Bowmanville, lying South of the Canadian National Railway right-of-way and North of the
Northerly limit of Registered Plan Number 198 and its production Easterly, the boundaries of
the said parcels being more particularly described as follows;
PARCEL 1
Part of Darlington Street and parts of Lots 156, 157 and 158, and all of Lots 159
and 160, according to a plan made for Wilson, Armour and Mearns, by Thomas Wallace
Herrick, P.LS., registered the 28th day of May, 1857, now known as Plan H50078, and part
of Township Lot 11 in the Broken Front Concession of the Township of Darlington, now within
the limits of the said Town of Bowmanville, containing by admeasurement 1.32 acres, be the
same more or less, which said parcel or tract of land may be more particularly described as
follows;
COMMENCING at the point of intersection of a fence marking the Southerly limit of the
Canadian National Railway right-of-way with the Easterly limit of said Lot 11, said point distant
Southerly in the last-mentioned limit nineteen hundred and sixty-six and sixty-one one-hundredths
feet (1966.61') on a course of South 17 degrees 36 minutes 30 seconds East from the North-
Easterly angle of said Township Lot 11;
THENCE South 17 degrees 36 minutes 30 seconds East along the Easterly limit of said Lot 11
a distance of two hundred and thirty-seven and fifty-one one-hundredths feet (237.51'J to an iron
bar planted at the point of intersection with the Northerly limit of a sixty-six foot (66') service
road expropriated by Deposited Plan Number 14618 for the Town of Bowmanville;
THENCE South 85 degrees 34 minutes 30 seconds West in said Northerly limit of the service
road a distance of three hundred and fifteen and six-tenths feet (315.6') to an iron bar planted
at the point of intersection with the Easterly limit of a sixty-six foot (66') road leading Southerly
from said Railway right-of-way;
THENCE North 17 degrees 37 minutes 30 seconds East along the Easterly limit of the said road
a distance of two hundred and sixty-six and eight one-hundredths feet (266.08') to an iron bar
planted at the point of intersection with a fence marking the Southerly limit of the said Railway
right-of-way;
SCHEDULE "A"
- 2 -
THENCE North 87 degrees 55 minutes 30 seconds East along the Southerly limit of said
Railway right-of-way a distance of thirty-nine and twenty-five one-hundredths feet (39.25') to
an iron bar marking an angle in the said limit;
THENCE South 88 degrees 00 minutes East continuing along the said Southerly limit a distance
of one hundred and twenty-three feet (123') more or less to the POINT OF
COMMENCEMENT.
SUBJECT TO whatever rights the public may have in that part of unopened Darlington Street
running across the land hereby conveyed at the Northern limit thereof and adjoining the said
Canadian National Railway right-of-way. As described in Instrument Number 30724.
PARCEL 2
Part of Lot Eleven (11) in the Broken Front Concession in the said Township of
Darlington, now within the limits of the said Town of Bowmanville, lying East of a sixty-six
foot (66') road running Southerly through said Lot 11, containing by admeasurement 12.45
Acres, be the same more or less, said parcel or tract being more particularly described as
follows;
COMMENCING at an iron bar planted at the point of intersection of the Southerly limit of a
sixty-six foot (66') service road expropriated by said Deposited Plan Number 14618, with the
Easterly limit of said Lot 11, said point distant Southerly in the last-mentioned limit twenty-two
hundred and seventy-one and nine-one one-hundredths feet (2271.91') from the North-Easterly
angle thereof;
THENCE South 85 degrees 34 minutes 30 seconds West along the Southerly limit of the said
service road a distance of one hundred and eighty-seven and twenty-nine one-hundredths feet
(187.29') to an iron bar;
THENCE South 17 degrees 35 minutes 30 seconds West a distance of three hundred and eight
and forty-two one-hundredths feet (308.42') to an iron bar planted in the Northerly edge of a
creek;
THENCE on a general bearing of North 68 degrees 13 minutes West in and along the Northerly
edge of the said creek a distance of one hundred and fifty-eight and six-tenths feet (158.6') to
an iron bar planted at the point of intersection with the Easterly limit of a sixty-six foot (66')
road running Southerly;
THENCE South 17 degrees 37 minutes 30 seconds West along said Easterly limit a distance of
sixty-eight and ninety-eight one-hundredths feet (68.98') to an iron bar marking an angle in the
said limit;
SCHEDULE "A"
- 3 -
THENCE South 66 degrees 08 minutes 30 seconds East continuing along the limit of the said
road a distance of ninety-two and eleven one-hundredths feet (92.11') to an iron bar marking an
angle in the said road;
THENCE South 26 degrees 29 minutes 30 seconds East continuing along the Easterly limit of
the said road a distance of fifty-three and seventy-nine one-hundredths feet (53.79') to an iron
bar marking the North-Westerly angle of the lands described in Instrument Number 14862 for
the town of Bowmanville;
THENCE North 63 degrees 30 minutes 30 seconds East a distance of thirty-seven feet (37') to
an iron bar;
THENCE South 66 degrees 41 minutes 30 seconds East a distance of one hundred and thirty and
ninety-two one-hundredths feet (130.92') to an iron bar marking the South-Easterly angle of the
lands described in said Instrument Number 14862;
THENCE South 63 degrees 30 minutes 30 seconds West along the Southerly limit of the said
lands a distance of one hundred and twenty-one and five-tenths feet (121.5') to an iron bar
planted at the point of intersection with the Easterly limit of the aforesaid road;
THENCE South 26 degrees 29 minutes 30 seconds East continuing along the Easterly limit of
the said road a distance of five hundred and sixty-seven and fifty-eight one-hundredths feet
(567.58') to an iron bar marking an angle in the said road;
THENCE South 51 degrees 08 minutes 30 seconds East continuing along the Easterly limit of
the said road a distance of one hundred and four and one-tenth feet (104.1') to an iron bar
marking an angle in the said limit;
THENCE South 31 degrees 20 minutes 30 seconds East continuing along the Easterly limit of
the said road a distance of seven hundred and seventy-seven and eighty-one one-hundredths feet
(777.81') to an iron bar marking an angle in the said limit;
THENCE South 16 degrees 10 minutes 30 seconds East continuing along the Easterly limit of
the said road a distance of one hundred and thirty-two and ninety-two one-hundredths feet
(132.92') more or less to an iron bar planted at the point of intersection with the Easterly
production of the Northerly limit of Registered Plan Number 198, said iron bar distant Easterly
in said production thirty and sixty-five one-hundredths feet (30.65') from the most Northerly
angle of Block "0", Registered Plan Number 198;
THENCE North 68 degrees 08 minutes 30 seconds East in said production a distance of one
hundred and four and seventy-five one-hundredths feet (104.75') more or less to the point of
intersection with the Easterly limit of said Lot 11;
SCHEDULE "A"
- 4 -
THENCE North 17 degrees 38 minutes 30 seconds West along the Easterly limit of said Lot 11
a distance of nineteen hundred and six feet (1906') more or less to the POINT OF
COMMENCEMENT. As described in Instrument Number 30724.
Save and Except:
That Part of said Parcel 2 being that Part of Lot 11, Broken Front Concession designated as
Parts 4, 5 and 7, Expropriation Plan 88189, Town of Bowmanville, Regional Municipality of
Durham.
PARCEL 3
Part of Lot Eleven (11) in the Broken Front Concession in the said Township of
Darlington, now within the limits of the said Town of Bowmanville, lying South of the Canadian
National Railway right-of-way and West of a sixty-six foot (66') road running Southerly through
said Lot 11, containing by admeasurement 52.57 acres, be the same more or less, said parcel
or tract of land being more particularly described as follows:
COMMENCING at an iron bar planted at the North-Westerly angle of Registered Plan Number
198 for the Town of Bowmanville;
THENCE North 68 degrees 08 minutes 30 seconds East along the Northerly limit of Blocks "H"
and "K" according to said Registered Plan Number 198 a distance of eleven hundred and sixty
and one-tenth feet (1160.1') more or less to an iron bar planted in the Northerly limit of Block
"N", Registered Plan 198, said iron bar distant Westerly in the last-mentioned limit thirty-five
and sixty-eight one-hundredths feet (35.68') from an iron tube marking the North Easterly angle
of said Block "N";
THENCE North 16 degrees 10 minutes 30 seconds West along a fence marking the Westerly
limit of a sixty-six foot (66') road a distance of one hundred and thirty and seven-tenths feet
(130.7') to an iron bar marking an angle in the said fence;
THENCE North 31 degrees 20 minutes 30 seconds West continuing along a fence marking the
Westerly limit of said road a distance of seven hundred and fifty-seven and five-tenths feet
(757.5') to an iron bar marking an angle in the said fence;
THENCE North 51 degrees 08 minutes 30 seconds West continuing along a fence marking the
Westerly limit of the said road a distance of one hundred and seven feet (107') to an iron bar
marking an angle in the said fence;
SCHEDULE "A"
- 5 -
THENCE North 26 degrees 29 minutes 30 seconds West continuing along a fence marking the
Westerly limit of a sixty-six foot (66') road a distance of seven hundred and twelve feet (712')
to an iron bar marking an angle in the said fence;
THENCE North 66 degrees 08 minutes 30 seconds West continuing along the said fence
marking the South-Westerly limit of the said road a distance of one hundred and thirty feet
(130') to an iron bar;
THENCE North 21 degrees 08 minutes 30 seconds East continuing along the Westerly limit of
the same road a distance of forty and five-tenths feet (40.5') to an iron bar marking an angle in
the said road;
THENCE North 17 degrees 37 minutes 30 seconds East continuing along the Westerly limit of
a sixty-six foot (66') road a distance of two hundred and forty and nine-tenths feet (240.9') to
an iron bar planted in the line of a fence running North-Westerly.
THENCE North 55 degrees 07 minutes West along the centre line of the said fence a distance
of eighty-three and four-tenths feet (83.4') to an iron bar marking an angle in the same fence;
THENCE North 00 degrees 57 minutes 30 seconds West continuing along the said fence a
distance of twenty-three feet (23;) to an iron bar;
THENCE South 87 degrees 44 minutes West a distance of two hundred and twenty-five feet
(225') to an iron bar;
THENCE North 112 degrees 46 minutes West a distance of three hundred and two feet (302')
to an iron bar planted in the Southerly limit of the Canadian National Railway right-of-way;
THENCE South 88 degrees 14 minutes West along the Southerly limit of the Canadian National
Railway right-of-way a distance of three hundred and thirty-five and five tenths feet (335.5') to
an angle in the said limit;
THENCE South 50 degrees 46 minutes West continuing along the Southerly limit of the
Canadian National Railway right-of-way a distance of fifty-nine feet (59') to an iron bar marking
an angle in the said limit;
THENCE South 80 degrees 16 minutes West continuing along the Southerly limit of the said
Railway right-of-way a distance of two hundred and seventy-five feet (275') to an iron bar
planted at the point of intersection with the Westerly limit of said Lot 11, said iron bar distant
Southerly in the last-mentioned limit sixteen hundred and fifty-eight feet three inches 91658'3")
more or less from the North-Westerly angle of said Lot 11;
SCHEDULE "A"
- 6 -
THENCE South 17 degrees 46 minutes East along the Westerly limit of said Lot 11 a distance
of twenty-six hundred and fifteen and seventy-five one-hundredths feet (2615.75') more or less
to the POINT OF COMMENCEMENT. As described in Instrument Number 30724.
Save and Except:
That Part of said Parcel 3 being that Part of Lot 11, Broken Front Concession designated as Part
of Part 1, Part 2 and Part 8, Expropriation Plan 88189, Town of Bowmanville, Regional
Municipality of Durham.
SECONDLY:
Lots 1, 2, 3, 4 and 5, Blocks A and B, Plan 694, formerly in the Geographic Township of
Darlington, now in the Town of Newcastle, Regional Municipality of Durham, and those parts
of the one foot reserves, on Plan 694, designated as Parts 3, 5, 7 and 9 on Plan lOR-852 save
and except the following lands:
That Part of Lot 4, Plan 694, being designated as Parts 4 and 5, Expropriation Plan 88190,
Town of Newcastle, Regional Municipality of Durham;
That Part of Lots 1 and 3, Plan 694, being designated as Part of Part 1, Expropriation Plan
88189, Town of Newcastle, Regional Municipality of Durham;
That Part of Lot 4, Plan 694, being designated as Parts 11 and 12, Plan lOR-852, Town of
Newcastle, Regional Municipality of Durham;
TOGETHER with those rights of way as more particularly described in Instrument Nos.
N30904, N30725 and N30720.
THIRDLY:
Parcel CL-4751 in the Register for Section Water Lot Darlington, being part of the bed of Lake
Ontario in front of parts of Lots 14 and 15 and the road allowance between the said lots, Broken
Front Concession, as shown on the plan of the Township of Darlington, being also in front of
Lots 4 and 5 and Block "B", as shown on Registered Plan 694, designated as Part 1 on a plan
and field notes of Water Lot Location CL-4751 deposited in the Land Registry Office for the
Registry Division of Newcastle as Plan lOR-2426.
SCHEDULE "A"
- 7 -
FOURTHLY:
Parcel CL-8140 in the Register for Section Water Lot Darlington being part of the bed of Lake
Ontario in front of parts of Lots 15 and 16, Broken Front Concession (formerly Township of
Darlington), Town of Newcastle, Regional Municipality of Durham and in front of Registered
Plan 694, designated as Part 1 on Plan 40R-14460.
SCHEDULE "B"
Auguust 27, 1997
LETTER OF INTENT
Russell Powell
Chief Administrative Officer
Central Lake Ontario Conservation Authority
100 Whiting Avenue
Oshawa, Ontario
LlH 3T3
Glenn Price
Ontario Ministry of Natural Resources
50 Bloomington Road West
Aurora, Ontario
L4G 3G8
Vic Gilman, Area Manager
Fisheries and Habitat Management - Ontario Area
Department of Fisheries and Oceans Canada
P.O. Box 5050, 867 Lakeshore Road
Burlington, Ontario
L 7R 4A6
Re:
Blue Circle Canada Inc. (formerly St. Marys
Cement)
Bowmanville Quarry
Letter of Intent to Implement Fish Habitat
Mitigation and Compensation Measures
Dear Gentlemen:
Enclosed please find four copies of the Letter of Intent signed by Gary Gentles,
president of Blue Circle Canada Inc. As you know, Blue Circle has recently purchased
St. Marys Cement. In this final process of approval, we request that you sign the final
... cont'd
"~ ~
';;;;'
DILLON
CONSULTING
100 Sheppard
Ayenue East.
Suite 300,
Toromo, Ontario,
Canada
M2N 6NS .
Mail, Box 18S0.
~onh York.
Ontario, Canadi
M2N 6HS
Telephone
(416) 229-4646
Fax
(4] 6) 229-4692
Dillon ConsultinF
Limited
~"'?
Page 2
August 27, 1997
Letter of Intent to Implement Fish Habitat Mitigation and Compensation Measures
page of each letter where indicated, Following this, please courier this letter with the
four copies of the Letter of Intent to the person whose name appears next on the list,
using the appropriate envelope,
The signed Letter ofIntent will then be inserted into the final version of the Westside
Marsh Fish Habitat Compensation Report and distributed immediately.
We would appreciate execution of this process in a timely fashion and thank you in
advance for your attention.
Yours sincerely,
Dillon Consulting Limited
-=c=a L~
~
Shawn Taylor, M,Sc.
Project Manager
Enc!.
JAL:mrb
94-1800-13-02
BLUE CmCLE CANADA INC. BOWMANVILLE QUARRY
LETTER OF INTENT TO IMPLEMENT FISH HABITAT MITIGATION AND
COMPENSATION MEASURES
FINAL
In accordance with the Federal Department of Fisheries and Oceans' Policy for the Management of Fish
Habitat (DFO 1986), and the Habitat Conservation and Protection Guidelines (DFO 1994), and with
particular reference to the principle of "no net loss of the productive capacity offish habitats":
Blue Circle Canada Inc. will provide habitat enhancement measures in Westside Creek and
Wests ide Marsh as described in the report and preliminary concept drawings prepared by
Dillon Consulting Limited and in the drawings prepared by Marshall Macklin Monaghan.
This has been prepared following the recommendations of the Waterfront Regeneration
Trust November 13, 1995 report.
To compensate for the destruction of21.28 ha' of Wests ide Marsh and 550 m of Wests ide Creek (totals 10.14
productivity units [p.U.]), Blue Circle Canada Inc. will implement the following measures. Although
Westside Marsh is a Class 2 Provincially Significant Wetland, the Provincial Wetland Policy does not apply,
as the current quarry licence predates the Policy.
I. Westside Creek Diversion - Creation of2,540 m Natural Lowflow Channel (0.93 P. U.)
Construct a 1,835 m long floodway and approximately 2,540 m long bankfull/low flow channel
combination, in a valley varying from 5 - 8 m in width along the Ontario Hydro Corridor, to divert
flow from Westside Creek to the Northern Tip of the wetland and, subsequently to the new Creek
Mouth and into Westside Marsh. The channels will incorporate fish habitat features to allow
migration of fish and provide spawning resources for forage fish species. Three culverts will be
constructed 55.0,110.0 and 42.5 metres in length. One cell of each culvert will be installed at an
elevation to allow migratory passage by fish and to maintain sediment transport, while other cells
will carry flood flows only. The Creek Diversion is divided into six distinct reaches with the
following geomophologic characteristics. A minimum of2 growing seasons will be allowed before
diverting water flow to allow plant establishment, conduct maintenance and minimize erosion.
Preliminary design drawings for each reach are presented in Appendix B of the report.
I Please: see Table 6.3. the Minns Method productivity model for translation of hectares to productivity units. Note the area of
fish habitat destroyed exceeds the areas that will be created or enhanced, but that the lost productivity units are balanced such that there is
no net loss.
1
Westside Creek Diversion Channel - Geomomholoaic Characteristics
Reach I Reach 2 Reach 3 Reach 4 Reach 5 Reach 6
Bankfull Width (m\ variable 1.5 3.0 2.5 1.8 1.8
Bankfull Denth (m) variable 1.4 1.2 0.3 0.55 0.4
Ml\ander Band Width 5.0 5.0 6.5 6.5 8.0 8.0
Meander Radius(m) variable 4.05 7.8 6.7 4.9 4.9
Meander Frenuencv (m \ variable 12-15 21-27 17-23 14-17 14-17
Sinuositv 1.1 1.5 1.5 1.8 1.5 1.5
Gradient (%) 1.75 0.28 0.16 0.017 0.012 0.13
rrofu.~l{ii~,N bJ) 100 365 82 180 465 435
uXfver s g
Reach I
. A medium gradient transition zone 110 m long will be constructed between the existing railroad
culvert and the lower invert elevation required for Reaches 2 and 3. A gravel bed nourishment zone
will be built over a reinforced rootwad comer, which is followed by a series of Riffle Gravel Beds.
The geometry is based on a Rosgen Type C4 channel in a 5m wide floodway channel. Reach ends
at culvert under Waverley Road. The Riffle Gravel Beds will be constructed 0.5-1.0 m deep from
a mixture of 20% 5-10 mm limestone gravel, 40% 10-30 mm riverstone and 40% 50-70 mm
cobblestone.
Reach 2
. The low gradient, 547 m long, entrenched lowflow channel is based on Rosgen Type E6 geometry.
The reach extends from Reach I to the first set of Hydro Tower culverts (42 m long), and includes
the Waverly Road culvert.
. Woody trees and shrubs will be established along the floodway side slopes to the top of bank.
Slopes faces are will be hydroseeded with native grass species and toes of slopes to be bioengineered
with live willow socks at 2.0 m spacings (as detailed in Drawings L5, L7 in Appendix B).
. The floodway bottom (5 m wide) will be lined with organic topsoil from the wetland including plant
propagules obtained from the converted portion of the Northern Tip sub-unit.
. The lowflow channel will be lined with limestone gravel to encourage formation of a riffle-step pool
complex, to create microniches for aquatic insects and create potential spawning habitats for forage
fish species. Submerged tree cover logs will be provided to enhance habitat.
Reach 3
. A low gradient '30 m long, entrenched, lowflow channel similar to Reach 2 will be constructed with
the exception of a wider (6.5 m) floodway and wider and more shallow lowflow channel. This short
reach provides a transition from Reach 2 to the Northern Tip wetland area.
. Floodway and Iowflow channel treatment similar to Reach 2.
2
Reach 4
. A very low gradient, 324 m 10ng,Iowflow channel through the Northern Tip of the Wetland will be
constructed during winter frozen conditions. A relatively wide and shallow channel will be
constructed to innundate the surrounding wetland area during low intensity, frequent storm events
as well as larger events.
. Railroad Creek flows will be integrated into the meander pattern of Westside Creek at a constructed
confluence.
Reach 5
. A very low gradient, 698 m long, lowflow channel extending from the Northern Tip of the Wetland
toward the southern extension of the Creek will be implemented in one 8 m wide regularly
inundated floodway. This reach also contains the second set of Hydro Tower culverts (42 m long)
which will be built with one cell lower in elevation to ensure constant fish passage.
. An erosion buffer between the flooded channel and floodway side slopes will be bio-engineered with
a continuous bond of shrub willow wattles to provide erosion revetment, shade, food resources for
fish and wildlife habitat.
. The drier portions of the floodway channel bottom including the bankfull and low flow channels will
be layered with organic soils (200 mm deep) from the Wetland, or equivalent, as a medium for
planting a dense vegetative growth of emergent aquatic plants (i.e. sedges, sweet flag, blue flag
irises) along the streamside over the silt clay based substrate.
. The floodway side slopes will be stabilized with bioengineered woody plants (i.e. buckthorn,
staghorn sumac) and grass seed to stabilize the soil and once established, will be kept linmaintained,
in a natural state.
Reach 6
. A very low gradient 653 m long lowflow channel with permanently flooded channel and floodplain
will be constructed throughout the base of the floodway channel.
. The valley will be permanently flooded by the wetland backwater to approximately 75.1 m.a.s.l.,
with a spring high water level of 75.4 m a.s.1.. The valley will have riparian vegetation along a
1.0 m band at the toe of slope with hardstem and river bulrush throughout the 8.0 m wide floodplain.
A 200 mm deep layer of organic soil from the wetland will provide the growth medium.
. The valley side slopes will be bioengineered with native willow, buckthorn and sumac plant~ngs in
an alternating scale pattern, at a spacing of 6 m or with 30 m' clumps randomly planted over the
slopes.
. The flooded channel will be built out into the Creek Mouth open water zone to integrate the two
waterbodies at an estuary as described below. Depending on the current flow rates of the stream and
water levels in the Marsh, the flooded channel mouth will create numerous habitats for fish,
invertebrates and other related organisms.
3
2. New Westside Creek Mouth - Creation of 2.52 ha Deep Water Refuge (2.02 P. V.)
. Approximately 2.52 ha of deep water refugewill be created with littoral zones and aquatic
plant beds at the Creek mouth.
. Creation of 3 zones of 2.5 m depth for over-wintering fish refuge, 0.5 - 1.5 m depth
shallower spawning, nursery, and forage habitats for Centrarchids, Percids and northern pike
and 2 pools of 1.5 m depth for other aquatic organisms.
. Shallow Open Water Zones of depths to approximately 1.0 m below low water level (LWL)
will be planted with submerged and broad leaf emergent macrophytes and stocked with root
tangles to provide habitat for yellow perch, largemouth bass, crappie, brown bullhead and
juvenile northern pike. Aquatic macrophyte beds such as Potomogeton, water lily,
bladderwort and Elodea will be established by transplanting at 2 foot on-centre spacings
using plants from the wetland and/or plants grown from seed from Westside Marsh or
Bowmanville Marsh.
. A total of 50 adult Largemouth Bass (I kg) will be stocked in the Creek Mouth during the
establishment period. The deepwater zones will be stocked with 21 deep or shallow water
structures (root tangles, tree tangles, inverted rootwads, log cribs) and 17 semi submerged
structures (fallen trees) to provide cover for all life stages of yellow perch, largemouth bass,
crappie and brown bullhead.
3. East End of Berm - Creation of 1.65 ha of Pike Spawning Habitat (1.32 P.U.)
. A total of 1.65 ha of spawning and nursery habitat for northern pike will be created by
removing this area of the existing topsoil berm and reconfiguring the bottom. Emphasis will
be on nursery habitat creation. The area will be excavated, lined with organic soils 300 mm
deep, from the wetland and planted as specified following.
. Wet Riparian Zones that will be seasonally flooded to the normal High Water Level, will
be constructed with shallow slopes and planted with narrow leaf emergents, broad leaf
emergents and wet tolerant grasses in order to develop suitable conditions for spring
spawning northern pike and forage fish. Channels and pools will be planted with submerged
aquatic plants to create pike nursery habitat. Existing wetland vegetation will be
transplanted at 2 foot on-centre spacings or through the mass movement of _ plant
propagules from existing sedge meadows during the dormant season.
. Micro channels, to improve access to this zone by these species will be field-fitted to be
appropriate to the conditions. The channels will be stocked with 8 submerged or inverted
root or tree tangles to provide shelter and cover habitat for larval and juvenile northern pike
and aU life stages of yellow perch, largemouth bass, crappie and brown bullhead as well as
haul outs for reptiles (ie. turtles).
. A series of embedded chain link fences sections will be constructed at the nine inlets to
protect the new habitats (East end berm, Backbeach) during the 2 year establishment period
by prohibiting carp entry and predation of vegetation.
4
. The remaining benn will be replanted with oak tree seedlings (black oak, white oak and red
oak) and prairie grasses to create additional habitat resources and as complementary wildlife
habitat.
4. Central Basin - Enhancement of6.02 ha (2.41 P.U.)
. Enhancement of 6.02 ha of Central Basin with eight deeper water zones to provide winter
and thennal refuge for largemouth bass and other target fish species (i.e. northern pike and
yellow perch) will be constructed by hydraulic dredging or by dredging through the ice,
. Deep Open Water Zones of depths to approximately 2.7 m below L WL will be excavated
and supplemented with submerged and floating macrophytes at 1.0 m spacing. The Zones
will be stocked with 17 deep water structures (tree tangles, root tangles) and 14 shallow
water structures (log cribs) to provide overwintering habitat for adult northern pike and all
life stages of yellow perch, largemouth bass, crappie and brown bullhead.
. A series of four islands to deflect creek flows into the Marsh for increased open water
circulation and residence time will be constructed from the dredgate. Fish and wildlife
habitat abutting the island chain will be enhanced through vegetation transplanting and root
wad stabilization.
. The existing macrophyte community will be enhanced to provide both shallow and deep
water cover through transplanting aquatic vegetation as above.
. A total of 200 largemouth bass will be stocked in the Central Basin at the start of the
establishment period.
5
5. Littoral Zone Along New Partition Berm - Enhancement of 0.53 ha (0.16 P.U.)
. Shaping of all side slopes facing the Marsh with elliptical edge will be completed with
followup planting of woody shrubs, trees and emergent aquatic macrophytes. Alder and
willow to be cleared from the alder thicket will be used where practical.
. A total of 530 m of shoreline edge will be scalloped over a width of 10m and faced with
granular substrates below the waterline of mixed grades of fine gravel, coarse gravel,
cobblestone and boulders suitable for fish and invertebrate substrate spawners.
. Submerged rocky shoals and woody debris will be established in the littoral zone as
shoreline cover where no vegetative cover (i.e. water lilies) remains. A total of 8 shallow
water cover structures (root tangles, tree tangles) will be placed along the shoreline.
6. Northern Tip - Enhanced Access to 1.81 ha (0.77 P.U.)
. A transition zone along Westside Creek through the 1.81 ha retained northern tip will be
established that has bankfull and lowflow capacity channels. Construction will occur during
the winter to minimize vegetation disruption.
7. West Basin - Enhances Edge Habitat over 0.85 ha (0.17 P.U.)
. Two deep open water zones will be constructed with vertical wall dropoffs along the cattail
clumps to increase the net overall area of edge habitat and increase access to the fringe areas
of cattail clumps and habitats in the overflow floodway.
. Two zones of depths to approximately 2.7 m below L WL will be excavated and planted with
submerged and floating macrophytes at 1.0 m spacing. The zones will be stocked with 4
deep water structures (tree tangles, root tangles) to provide overwintering habitat for adult
northern pike and all life stages of yellow perch, largemouth bass, crappie and brown
bullhead
. The existing macrophyte community will be enhanced to provide both shallow and deep
water cover through transplanting aquatic vegetation as above.
8. Cattail Clump 3 and 4 - Enhances 1.19 ha (0.12 P.U.)
. Portions of cattail clumps 3 & 4 will be excavated to provide edge habitat, cover, open water
habitat and greater edge structure. Isolated islands of cattails will be retained to allow
greater edge habitat, terrestrial habitat resources and provide vertical cover.
. Create deepwater zones to depths of 3.5 m in areas of excavated cattails ensuring distinct
drop-off structure at points of elevation change.
6
9. Backbeach - Enhanced Access to 2.88 ha (1.15 P.U.)
. Access channels.3 to 1.7 m deep (74.3 to 73.7 m elevation) will be excavated throughout
entire length and area (2.88 ha) of the backbeach sub-unit. Construction will occur during
winter freezeup to minimize impacts to vegetation.
. Permanent water channel linkages to both the East End Berm (South Berm), central basin
and outlet channel a minimum of I m wide and maximum of 4 m wide will be constructed.
A series of embedded chain link fence sections will be constructed at the nine inlets to
protect the new habitats (East end berm, Backbeach) during the 2 year establishment period
by prohibiting carp entry and predation of vegetation.
. Adjacent to the remnant fen community, construction will be strictly controlled to avoid
impacts to the fen. Protective fencing will be installed to prohibit vehicle traffic from the
fen and delineate the protection area boundaries.
10. Overflow Floodway Channel- Created Shallow Zones over 0.35 ha (0.21 P.U.)
. A low flow channel will be excavated within the 12m wide floodway to a continuous invert
elevation of 73.5 m. The area considered to be habitat is to be 0.35 ha.
. The low flow channel will mimic the design of the floodway channel of West Side Creek
The meander pattern will be irregular with small offside channels, blind ponds and dense
emergent vegetation.
. The flood way will be constructed to a width of 12 m at base and will be flooded at the
marsh interface and slowly increasing in elevation until the control point at Waverly Road
at an elevation of 75.68 m, a distance of 250 m. Organic soil from the wetland will be
layered to a depth of 300 mm between elevations of74.0 and 75.68 m..
. Excavated cattails from marsh construction (i.e. clumps 3 and 4) and salvaged sedge
meadow propagules will be transplanted into portions of the floodway at the appropriate
depths.
. The Overflow Floodway Channel will provide water depths rangining from 1.5 m to zero
during the summer to encourage the establishment of diverse vegetation similar to that of
the existing sedge meadow where the land is above the normal water level.
II. Mitigative Methods
Detailed mitigative methods will be determined during detailed design work and submitted for
review by the Ministry of Natural Resources, Central Lake Ontario Conservation Authority and the
Department of Fisheries and Oceans, Fish Policy and Habitat Management Branch along with the
design drawings. Initial mitigative methods to be considered are as follows;
. Dredging of existing wetlands to be completed by a barge mounted hydraulic dredge or
through the ice with an excavator, with dredgate deposited in an abandoned portion of
7
wetland for settlement. The dredgeate will be deposited to a location, and in a manner such
that it will not re-enter the open water areas of the marsh. Where feasible, work is to be
completed under dry conditions; all water control materials, (ie. Sand bags) shall be
removed from the site,
. Construction to occur primarily in winter and summer when fish spawning and bird nesting
I migration are minimal. Reflecting the cold water status of the Lake Ontario fishery and
potential for silt mobilization, an in-marsh construction constraint of April 1 to July 1 will
be observed for using heavy equipment in the construction of the wetland so that impacts
to the offshore fishery and nesting birds are minimized.
. A sediment and erosion control plan will be established on the detailed design drawings and
will be adhered to by the contractors. This plan will be reviewed and approved in advance
by the Ontario Ministry of Natural Resources - Aurora district and the Department of
Fisheries and Oceans, Fisheries and Habitat Management - Ontario Area.
. Machinery working in and around water will be in good working condition, free of
extraneous grease and oil and will be refueled no closer than 30 m away from the water,
. An emergency spills management plan will be prepared and implemented during
construction of all habitats,
. Where possible (ie. Creek Diversion), water flows will be diverted elsewhere while the
bioengineering works become established,
. The existing remnant fen will be protected from intrusion with stout fencing during
construction of the Backbeach access channels or when machinery are working in the area.
Similar natural areas will be fenced and marked as restricted areas during construction to
protect sensitive vegeation and wildlife communities. The Hemi-Marsh within the wetland
will be so marked following installation of the partition berm, and
. Transfer of fish and vegetation will be under the direction of the supervising biologist.
12. Construction and Establishment Timing
Construction will occur primarily in the winter and summer months over three years beginning in
1998. The Creek valley habitats will be stabilized with a minimum of 2 years growth of
bioengineering materials prior to moving waterflow into the new Creek bed and closing !Jff the
wetland. An establishment period of two years will follow primary construction to allow plant
densities to increase, sediments to stabilize and repairs to be completed. During this period, carp-
control fencing will be erected at the Creek Diversion, Creek Mouth, East End Berm, and Backbeach
areas. The establishment period may differ among habitats as activities such as fish stocking,
weeding, fertilization, fencing, will be required.
13. Detailed Plans
Detailed drawings of clearing and grubbing, survey layout, sediment and erosion control,
8
.
landscaping, culvert works, channel morphology, flood way design and habitat structure details will
be submitted to the signatories of this agreement for final approval by November 30, 1997.
14. Monitoring Plan
A ten year post habitat construction monitoring program will be implemented to assess the success
and utilization of the reconfigured Creek and Marsh covering at least three spawning seasons.
Population changes in the indicator species as identified in the Report will generally be used to
determine the level of success of the project in achieving no net loss of productivity.
Automated data recorders of water levels and temperatures are currently operated in the Marsh
and Creek. An automated weather station was installed at the Blue Circle Canada Inc. Technical
Centre in 1996 to collect data on rainfall, air temperature, wind speed and wind direction. The
automated dataloggers will be maintained throughout the construction, establishment and monitoring
periods. Air photography will be conducted on an annual basis, and at the same time each year,
covering the project life span. Bedload sampling in the Creek will be performed at ten permanently
monumented locations to determine sedimentation and erosion rates.
A Pre-construction data collection program will collect the following information:
. Inventory the fish species community using 3 foot hoop nets, fine mesh seining and
electrofishing using a standard level of effort.
. Water and bedload sediment sampling will be undertaken in the Creek, both upstream and
downstream of Waverly Road, and within the wetland to establish preconstruclion levels of
suspended sediment and associated particle sizes.
. Records of the following parameters will be collected at the water surface and just above
the bottom bi-weekly during the ice-free period to chart the rate of turbidity and primary
productivity increases over the growing period: Dissolved oxygen, temperature, pH, secchi
disk, turbidity. Samples of the following will be collected from mid water column
bi-weekly during the same period: chlorophyll a, particulate organic matter & total
particulates.
. Spring pike spawning activity will be documented to determine use and locations .
. Monitor under-ice dissolved oxygen, temperature, pH and conductivity in standardized
locations.
During the Two Year Establishment Period, installation oflong term monitoring apparatus will
be conducted along with inspection and maintenance of the works.
. Place gangs of four sedimentation tubes in five locations within the Creek Mouth and
Central Basin to chart the accumulation of sediments in these areas during the 10 years post
construction.
9
Inspect the meandering low flow channel, side slopes and bioengineering works in diversion channel
for stability of the channel and valley walls. Collect bedload samples at monumented
stations during six event flows.
Install concrete monument posts at ten selected locations along the Creek Diversion and accurately
plot the valley cross sections to establish the new baseline conditions before abandoning the
old creek bed and initiating flow to the new channel.
Install gangs of eight bank pins on 2: I slopes and survey in to measure relative vertical rates of
movement.
. Inspect plant beds, grading and habitat features in wetland and implement warranty work
by the contractor prior to finalization of construction contract.
A ten year Post Construction monitoring program will be implemented that collects and analyzes
detailed performance data to be collected in years 2, 5 and 10 following the establishment period as
follows:
. Survey permanent monuments and bank pins along sections of the Creek Diversion; collect
geomorphology monitoring statistics (cross sections, velocity, erosion rates, offset distance)
and inspect bioengineering works to confirm the rate of meander migration and slope
stability.
. Collect water samples at five of the monumented stations every 500 m along the Diversion
Channel and at the Creek Mouth outlet three times (seasonal) per year; analyze for Total
Phosphorus, Soluble Reactive Phosphorus and Total Organic Carbon. Collect representative
samples of streamside vegetation biomass.
. Conduct instream sediment sampling twice per year at monumented stations during event
flows to characterize the bedload of the diverted creek. Map the depositional zones and
sediment plume on digital base. Analyze sediments for Total Phosphorus and calculate mass
loadings.
. Records of the following parameters will be collected at the water surface and just above
the bottom bi-weekly during the ice-free period to chart the rate of turbidity and primary
productivity increases over the growing period: Dissolved oxygen, temperature, pH, secchi
disk, turbidity. Samples of the following will be collected from mid water column
bi-weekly during the same period: chlorophyll a, particulate organic matter ~ total
particulates.
. Inventory the fish species community using 3 foot hoop nets, fine mesh seining and
electrofishing at standard control stations in each new habitat using a standard level of
effort.
. Spring pike and early summer largemouth bass spawning activity will be documented to
determine use and locations of spawning activity.
. Inspect created physical habitats in the wetland for physical changes and plant colonization.
Review the long term creek flow and water level data to recalculate the water budget.
. Fish habitat assessment will accompany the field efforts to document the post habitat
10
construction plan and profile, including depths, substrates, vegetative cover and other cover
types. A digital air photo map of habitat features and vegetative communities will be
developed for each year of the program with an overlay of the habitat areas so that long term
trends in vegetation encroachment and sedimentation patterns can be observed.
Reporting will include interim, cumulative monitoring reports will be prepared for submission in
the second and fifth years following the period of establishment. A final report following the tenth
year of post construction monitoring will integrate all of the results of the previous years and provide
a realistic summary of the project successes and failures. These reports will be submitted to all
signatories of this agreement by June 30 in the year following the major monitoring periods.
15. Plan Deviation
It is understood that constraints may arise which may result in a deviation from the proposed plan.
Any deviations will be discussed and approved in advance with Fisheries and Habitat Management-
Ontario Area Office, Department of Fisheries and Oceans, Burlington.
The Department of Fisheries and Oceans, Ontario Region, will:
. provide advice on the proposed projects and offer assistance regarding interpretation of any aspects
of the "Policy for the Management of Fish Habitat" which will require clarification.
.
The Central Lake Ontario Conservation Authority, will:
. review the detailed design drawings and provide written comments to Blue Circle Canada Inc. and
provide advice on sediment and erosion control as necessary.
The Ontario Ministry ofNatnral Resources, will:
. review the detailed design drawings and provide written comments to Blue Circle Canada Inc.,
provide advice on fishh transfers, fish stocking practices as necessary and provide a fish transfer
permit to allow the supplementary stocking of Largemouth Bass.
11
~~
'I" I Gary Gentles, PreSldect
Brue Circle Canada Inc.
~ "l.-{( ""7
Date
D.V. GUman. Area Mmag::
Department of Fisheries and Ocean$
F~herics ...d Habitat l\.lznagemcnt . Ontario
Dote
Glen Price
Area Supervisor, Aurora District
Ministry efNatural Resources
Date
o-m
RussellPewell
Chief Administrative Officer
Central Lake Ontario Conservation Authority
August 1997
Page 12
SCHEDULE "C"
STATEMENT OF PURPOSES
The costs referred to in paragraph 8(a)(iv) of the Principles are the following:
. land appraisals of the lands to be acquired for the reconstruction of Cove Road
and the construction of the Westside Creek Bridge; and
. legal services provided to the Municipality in respect of the acquisition of lands
and interests in Cove Road, the Westside Creek Bridge and approaches thereto,
and the implementation of the Principles including representation of the
Municipality in any hearings that may be required to obtain approvals of senior
governments, retainer of experts to prepare reports and appear as witnesses, the
acquisition of lands and interest and approvals of the Official Plan provisions and
zoning amendments referred to in these Principles, and the negotiation and
preparation of a management agreement with CLOCA; and
· engineering consulting services respecting the implementation of the Principles
and obtaining necessary approvals of senior governments referred to in the
Principles, the preparation of working drawings and specifications for the works
referred to in these Principles, preparation of tender material and construction
contract documents, award of contracts, construction supervisions and
performance of the duties of the Municipality's engineering consultant under the
construction contract; and
· acquisition of lands and interest in Cove Road, and lands required for the
Westside Creek Bridge and approaches to them; and
SCHEDULE "C"
-2-
. the reconstruction of Cove Road and the construction of the Westside Creek
Bridge in accordance with these Principles.
.'
SCHEDULE "D"
WESTSIDE CREEK DIVERSION WORKS PLAN
NOTE:
In addition to the works shown on the following plans, Blue Circle will plant a vegetated buffer
zone on the lands outside of the top-of-bank of the Westside Creek diversion channel as follows:
a) at the waterfront trail, between Waverly Road to the first set of towers, a planted
vegetated buffer area totalling approximately 12 metres generally comprised of
approximately 2 metres at the top-of-bank and approximately 10 metres south of the
waterfront trail and planted with mixed deciduous tree and shrub seedlings;
b) by the Marsh Link Area, a vegetated buffer zone approximately 10 metres wide
comprised of mixed deciduous hardwood seedlings 3 metres off-centre;
c) between the Westside Creek Diversion Area B and the quarry, a vegetated buffer zone
planted with white spruce seedlings 3 metres off-centre; and
d) at all other locations, a vegetated buffer area totalling approximately 10 metres wide
comprised of approximately 2 metres at the top-of-bank and 8 metres outside of the
easement area to be planted with shrub seedlings 3 metres off-centre.
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PLAN or SURYEY
OF PI\R~ OF LOTS -3 & ~, PART Of
THE RESERVE. EAST or WA.VERLY ROAD,
PART OF THE RESERVE. WEST OF
WAVERLY RO,o.[), AND PART OF BLOCKS
\,2& 'C' (BEING A TAAllfLLEo ROA.[)
KNOWN AS WAVERLY ROAD) ...U
4CCORDING TO REGISITRED PlAN 594,
TCWNSYIP Of DARLINGTON, no.. in the
MUNICIPALITY 0' CLARINGTON
R<:GIQNAl MUN'C'PAUTY or OURH/l."
=-_~,w.;::;""""
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BE''''~G REFERrnCE
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NOTES & LEGEND
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PROPOSED
CLOSURE AREA 'B'
SCHEDULE "F"
ROAD MAP
-BROWN & COCGAN-CTD--
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SCHEDULE "G"
COVE ROAD AND WESTSIDE CREEK
BRIDGE PLANS AND SPECIFICATIONS
SCHEDULE "H"
DESCRIPTION OF PROPOSED CLOSURE AREAS AND
RESERVES ABUTTING PORTIONS OF W A VERL Y ROAD
1. Proposed Closure Area A and Abutting Reserves
All of Parts I, 3 and 5 on Plan 40R-17774
2. Proposed Closure Area B and Abutting Reserves
All of Parts 1, 2, 3,4,5, 6,7, 8, 9, 10, 11,
12, 13, 14 and 15 on Plan 40R-17775
3. Proposed Closure Area C and Abutting Reserves All of Parts
on Draft Plan 40R- prepared by Brown & Coggan Ltd.,
under File No. and Part 4 on Plan 40R-I7774
4. Proposed Closure Area D
All of Parts on Draft Plan
40R- prepared by Brown & Coggan Ltd. under File No.
5. Temporary Public Highway
Part 9 on Plan 40R-17774
SCHEDULE "I"
ESTIMATED COSTS OF CONSTRUCTION OF COVE ROAD. WESTSIDE CREEK
BRIDGE AND EXTENSIONS OF TEMPORARY PUBLIC HIGHWAY
MUNICIPALITY OF CLARINGTON
BOWMANVILLE
Construction of Roads and Bridges Preliminary Cost
Estimate
Structure Spanning Westside Creek (32m) $500,000.00
West Approach Cedar Crest Beach Road (126m) 130,000.00
East Approach Cove Road (550m) 480,000.00 (1)
Roads A & B (Cove Road Northerly) (30m) 40,000.00
Extension of Cedar Crest Road, West of Waverly Road (5Om) 7,000.00 (3)
Improvements to Haul Road 13,600.00
Utility Relocation (Bell) 50,000.00 (2)
Utility Relocation (Hydro) 110,000.00 (2)
Illumination 15,000.00
TOTAL (excl. taxes) $1,345,600.00
1. INCLUDES RECONSTRUCTION OF WEST BEACH ROAD AT COVE ROAD INTERSECTION
2. FIRM SERVICING PROPOSALS AND ASSOCIATED COSTS HAVE NOT BEEN RECEIVED TO
DATE FROM ONTARIO HYDRO, CLARINGTON HYDRO & BELL CANADA. COSTS PROVIDED
HEREIN ARE WITHOUT BASIS AND ARE SUBJECT TO ADJUSTMENT.
3. AGGREGATE TO BE SUPPLIED BY ST. MARYS CEMENT CORPORATION.
NOTES:
PROVISION OF MUNICIPAL WATER FOR DOMESTIC AND FIRE SUPPLY TO SERVICE
RESIDENTS ON CEDAR CREST BEACH ROAD, COVE ROAD AND ROADS A & B IN THE EVENT
OF DISRUPTION OF THE EXITING GROUND WATER SUPPLY WOULD BE SOURCED FROM
THE REGION OF DURHAM - "BOWMANVILLE WATER SUPPLY PLANT" LOCATED ON PORT
DARLINGTON ROAD (SEE LOCATION PLOTTED ON THE ATTACHED MAP). COSTS TO
PROVIDE THIS SERVICE IS ESTIMATED AT $950,000.00 AND IS ADDITIONAL TO THE TOTAL
COSTS SHOWN HEREIN.
PROPERTY ACQUISITION AND LEGAL SURVEY COSTS ARE NOT INCLUDED
GOODS AND SERVICE TAXES ARE NOT INCLUDED
DESIGN, TENDERING AND CONSTRUCTION ADMINISTRATION COSTS ARE INCLUDED
SCHEDULE "J"
SCHEDULE OF CONSTRUCTION OF WESTSIDE CREEK DIVERSION WORKS
Ih. ~T 13 LOT 12 ~~;UJ ~:; ~ 11
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BLUE
CIRCLE
LANDS
Lake Ontario
PERPETUAL EASEMENT AREAS
B
PROPOSED 2: 1 QUARRY"
SIDE SLOPE & BENCH
PROPOSED DIVERSION
CHANNEL SIDE SLOPE
2 or 3:1
........
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EtA
EASEMENT AREAS
(3 METRES WIDE)
EASEMENT AREAS
(GREATER "THAN J METRES
IN WlmH)
TEMPORARY EASEMENT AREA
~ EASEMENT MFA "E-
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SCHEDULE "K"
"'-.j"
SCHEDULE "K" - 2 -
EASEMENTS TO BE TRANSFERRED TO CLOCA OR AS
OTHERWISE DIRECTED BY THE MUNICIPALITY
Easement Area
Scope
C
Access for persons, equipment and vehicles to and from Westside
Creek Diversion Area B to permit the inspection, repair and
maintenance of the Westside Creek Diversion Works as required
by the Letter of Intent and the Monitoring and Maintenance
Agreement if Blue Circle fails to repair and maintain the works on
Westside Creek Diversion Area B.
Dj
Access for persons, equipment and vehicles to and from Westside
Creek Diversion Areas A and B along the top of the dyke to be
constructed on Dyke Area B with the right to undertake
maintenance and repair operations from Easement Area D; in
respect of the Westside Creek Diversion Works, and the right to
use the gates in the security fence on the dyke in order to maintain
or replace vegetation on Easement Area D2.
D2
Areas to, from and on Easement Area D2 via gates on the security
fence on Easement Area D2 for the purpose of installing,
maintaining and replacing vegetation thereon.
SCHEDULE "K"
- 3 -
Easement Area
Scope
G
Access for persons, equipment and vehicles to and from Overflow
Channel Area A to permit the inspection, repair and maintenance
of the Overflow Channel Works as required by the Letter of Intent
and the Monitoring and Maintenance Agreement if Blue Circle
fails to repair and maintain the works on Overflow Channel Area
A.
H
Access to and from Overflow Channel Area A for persons,
equipment and vehicles and to undertake inspection, maintenance
and repair operation, respecting the Overflow Channel Works
which are required by the Letter of Intent and the Monitoring and
Maintenance Agreement if Blue Circle fails to repair and maintain
the Works on Overflow Channel Area A.
NOTE:
These easements may be exercised by CLOCA or as otherwise directed by the
Municipality, and its respective employees, contractors and consultants.
SCHEDULE "K"
- 4 -
EASEMENTS RESERVED BY BLUE CIRCLE
Easement Area
B
SCODe
Access to and from Westside Creek Diversion Area B by persons,
equipment and vehicles for the purpose of maintaining and
repairing the Westside Creek Diversion Works on Westside Creek
Diversion Area B as required by the Letter of Intent and the
Maintenance and Monitoring Agreement.
D3
A perpetual easement of support of Dyke Area B, including the
dyke to be constructed thereon.
E
A Temporary Easement in the Reconfigured Westside Marsh to
permit the construction and installation of the Wests ide Creek
Diversion Works and the monitoring and maintenance of the same
in accordance with the Letter of Intent and the Monitoring and
Maintenance Agreement which easement shall terminate on the
expiry of the later of the periods of monitoring and maintenance
provided in the Letter of Intent and the Monitoring and
Maintenance Agreement respectively.
F
Access to and from Overflow Channel Area B for persons,
equipment and vehicles for the purpose of inspecting, maintaining
and repairing the Overflow Channel Works as required by the
Letter of Intent and the Monitoring and Maintenance Agreement.
NOTE:
These easements may be exercised by Blue Circle, its employees, contractors,
consultants and agents.
SCHEDULE "L"
MODIFICATION TO THE
DURHAM REGIONAL OFFICIAL PLAN
Deferral #1
PURPOSE:
At the request of the Municipality of Clarington and Blue Circle
Canada Inc. (formerly St. Marys Cement Corporation), the Waterfront
Regeneration Trust undertook a process to resolve the issues related
to the preservation of Westside Marsh, compatibility with existing
residential uses and the continued economic viability and development
of the Blue Circle operations. In November 1995, the Trust released
a report which recommended a multi-faceted solution to these issues.
The key recommendations of the Report would involve St. Marys
conveying to the community, a significant portion of the Westside
Marsh, as well as other nearby lands. In turn, the Municipality would
convey a portion of the Waverly Road road allowance to St. Marys for
quarrying purposes. The relocation of Westside Creek, which feeds
into the Marsh, would also be required.
The purpose of this modification is to incorporate policies and land
use designations into the Durham Regional Official Plan which reflect
the key recommendations of the Waterfront Regeneration Trust
Report and the settlement between the Municipality of Clarington and
Blue Circle Canada Inc.
ACTUAL
MODIFICATION: The Durham Regional Official Plan is hereby modified by:
1. In Section 18.2.2 by changing all references from "St. Marys
Cement" to "Blue Circle Canada Inc.".
2. In subsection b) of 18.2.2 by deleting the words "In the course
of preparing a waterfront plan,"
3. In subsection c) of 18.2.2 by deleting the words "In the course
of preparing a waterfront plan,"
4. In subsection (d) of 18.2.2 by deleting the words "Mineral
Aggregate Resource Policy Statement (MARPS)" to "Provincial
Policy Statement".
SCHEDULE "L"
- 2 -
5.
By adding a new subsection (e) as follows:
"e) Westside Marsh is recognized as a provincially
significant wetland and is subject to an aggregate
extraction Licence issued under the Aggregate Resources
Act. The Region recognizes and supports the agreement
between the Municipality of Clarington and Blue Circle
which allows for the reduction of the total licensed area,
the closing of a portion of Waverly Road, the retention
of a portion of the Marsh and the conveyance of
approximately 40 ha of lands into public ownership for
management as part of a wetland complex.
6. By amending Schedule 4 for Aggregate Resource Extraction
Area 97 by reducing the area from "252" to "227".
SCHEDULE "A"
TO DURHAM REGIONAL OFFICIAL PLAN MODIFICATION
,
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REVISE BOUNDARY OF
"SPECIAL POLICY AREA B"
3
PURPOSE:
SCHEDULE "M"
MODIFICATION NO. 170
TO THE CLARINGTON OFFICIAL PLAN
Deferrals 10,11 and 24
St. Marys Cement and Cove Residential Area
Section 16.5 (Special Policy Area C - St. Marys Cement Corporation)
sets out policies related to the quarrying and cement manufacturing
facility now owned by Blue Circle Canada Inc. Section 16.5 has been
deferred at the request of Blue Circle Canada Inc. (Deferral No. 10).
Section 17.3 (Special Study Area No.2 - Westside Marsh/Cove
Residential Area) includes the Westside Marsh and various residential
lands in the adjacent Cove residential community. The preservation
of the Marsh and the issue of compatibility between existing residential
uses, quarrying activities and other potential industrial uses are to be
addressed prior to the approval of land use designations for the lands
in Special Study Area No.2. Section 17.3 has been deferred by the
Region at the request of Blue Circle Canada Inc. (Deferral No. 11).
In addition, those portions of Map A3 (Land Use - Bowmanville
Urban Area) covered by Special Policy Area C and Special Study Area
No.2, as well as a portion of Waverly Road south of the Ontario
Hydro corridor are also deferred at the request of Blue Circle Canada
Inc. and the Port Darlington Community Association (Deferral No.
24).
At the request of the Municipality and Blue Circle Canada Inc., the
Waterfront Regeneration Trust undertook a process to resolve the
issues related to the preservation of Westside Marsh, compatibility
with existing residential uses and the continued economic viability and
development of the Blue Circle operations. In November 1995, the
Trust released a report which recommended a multi-faceted solution
to these issues. The key recommendations of the Report would
involve Blue Circle conveying to the community, a significant portion
of the Westside Marsh, as well as other nearby lands. In turn, the
Municipality would convey a portion of the Waverly Road road
allowance to Blue Circle for quarrying purposes.
The purpose of this modification is to incorporate policies and land
use designations into the Clarington Official Plan which reflect the key
recommendations of the Waterfront Regeneration Trust Report and
the agreement between the Municipality and Blue Circle Canada Inc.
SCHEDULE "M"
- 2 -
ACTUAL
MODIFICATION: The Clarington Official Plan is hereby modified by:
1. By replacing all references to "S1. Marys Cement Corporation"
with "Blue Circle Canada Inc."
2. By deleting Section 16.5.1 and replacing it with the following:
"16.5.1
This area primarily recognizes the licensed
extraction area and the cement manufacturing
facility of Blue Circle Canada Inc. and the
Westside Marsh. The permitted uses are as
follows:
a) on the lands designated General
Industrial, the commercial dock facility
existing on October 1, 1997 and a cement
manufacturing facility;
b) on the lands designated Aggregate
Extraction Area and subject to the
provisions of Section 16.5.2., aggregate
extraction activities and ancillary uses such
as a professional office building, a
concrete batching plant, a truck terminal,
and aggregate processing including the
stockpiling of raw and processed
materials;
c) on the lands designated Environmental
Protection Area, no development except
for protection, conservation and
enhancement of ecological systems,
passive recreation, and uses related to
erosion control and storm water
management; and
d) on the lands designated Waterfront
Greenway, the uses identified in Section
14.7."
3. Add a new Section 16.5.2 and 16.5.3 as follows and
renumbering the remaining sections in Section 16.5:
SCHEDULE "M"
"16.5.2
16.5.3
- 3 -
Aggregate extraction activities and ancillary uses
are subject to the following:
a) an aggregate processing plant, concrete
batching plant, and truck terminal shall:
i) not be located within 700 metres of
any residential property located
south of Highway 401; and
ii) not be located within 150 metres of
the water's edge of Lake Ontario.
b) within 700 metres of any residential
property, aggregate processing is
permitted provided that any crusher is
located 10.7 metres below natural grade;
and
c) for the purposes of Section 16.5.2, natural
grade means the grades depicted by the
contours shown on a drawing entitled
"Existing Features" prepared by
MacNaughton Hermsen Britton Oarkson
Planning Limited for the Bowmanville
Quarry (Job No. "8816'B' St.Mary's Bowm
Durh") dated for submission in accordance
with the Aggregate Resources Act on
Nov. 9, 1990 provided that in no case shall
natural grade include stockpiled material,
excavated areas or be deemed to exceed
86 metres above sea level or be deemed to
be less than 75.4 metres above sea level.
A portion of Special Policy Area C includes lands
which will accommodate the planned diversion of
Westside Creek, the retention of a significant
portion of the Westside Marsh existing on
October 1, 1997, and a habitat linkage area
between the Westside Marsh and the
Bowmanville Marsh wetlands. These lands shall
be managed by an appropriate public authority in
conjunction with other public lands so as to
conserve and enhance wildlife habitat on-site or
SCHEDULE "M"
- 4 -
nearby with the objective of achieving no net loss
in biodiversity and function."
5. By deleting the existing Section 16.5.4 (to be renumbered
16.5.6) and replacing it with the following:
"16.5.6
Any rehabilitation plan or amendment to a
rehabilitation plan for the aggregate extraction
area shall address, among other matters, the
following:
a) the relationship of the lands to be
rehabilitated to the Westside Marsh and
related lands referred to in Section 16.5.3.;
b) the land uses permitted within Special
Policy Area C;
c) the provisions of this Plan dealing with
Bowmanville's urban waterfront; and
d) the provision of attractive, connected and
accessible public spaces appropriately
located.
Before submission of a rehabilitation plan or an
amended rehabilitation plan to the Province for
approval, the owner shall meet with the
Municipality and Conservation Authority to
obtain their input and comments on the matters
referred to in this section. The owner shall
objectively consider but not necessarily follow
such comments in finalizing a rehabilitation plan
or amended rehabilitation plan."
6. By adding the following new section:
"16.11
SPECIAL POLICY AREA I
RESIDENTIAL AREA
COVE
16.11.1
Special Policy Area I recognizes the historic
residential community known as the Cove.
Existing residential dwellings and limited infilling
is permitted on private sewer or water services.
SCHEDULE "M"
- 5 -
16.11.2
The creation of new lots shall meet the
requirements of Sections 12.3.5 and 23.7 of this
Plan.
7. By deleting Section 17.3 and its corresponding subsections in
their entirety.
8. By modifying Map A3 as indicated by Exhibit 1 to this
modification.
Exhibit 1 attached hereto shall form part of this modification.
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SCHEDULE "M"
. 7-
NOTE:
It is acknowledged that the above wording respecting recognition of the
existing commercial dock facility is without prejudice to the rights or
entitlement of Blue Circle Canada Inc. or its successors under all applicable
legislation to expand or to add to such commercial dock facility and the rights
and powers of the Municipality of Clarington in respect of any such expansion
or addition to the commercial dock facility.
SCHEDULE "N"
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NUMBER 98-_
being a By-law to amend By-law 84-63, the Comprehensive Zoning By-law for the former
Town of Newcastle.
WHEREAS at a meeting on October , 1997 Council considered a multi-faceted report
dealing with the Westside Marsh, Blue Circle operations and the closure of a portion of
Waverly Road;
AND WHEREAS the Council of the Corporation of the Municipality of Clarington deems
it advisable to amend By-law 84-63, as amended, of the former Town of Newcastle, to
implement the approved Clarington Official Plan and the agreement with Blue Circle
Canada Inc;
NOW THEREFORE BE IT RESOLVED THAT the Council of the Corporation of the
Municipality of Clarington enacts as follows:
1. Schedule "3" to By-law 84-63, as amended, is hereby further amended by changing
the zone category from:
"Extractive Industrial Exception (M3-1) Zone" to "Environmental Protection (EP)
Zone".
2. Schedule "A" attached hereto shall form part of this By-law.
3. This By-law shall come into effect on the date of passing hereof, subject to the
provisions of the Planning Act.
SCHEDULE "N"
- 2 -
BY-LAW read a first time this
day of
BY-LAW read a second time this
BY-LAW read a third time and finally passed this
day of
day of
1998
1998
1998
Mayor
Clerk
This is Schedule "A" to
passed this day of
By-law 97-
. 1997 A.D.
.
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SCHEDULE "0"
THE CORPORATION OF THE MUNICIPALITY OF CLARlNGTON
BY-LAW NUMBER 98-_
being a By-law to amend By-law 84-63, the Comprehensive Zoning By-law for the former
Town of Newcastle.
WHEREAS at a meeting on October, 1997 Council considered a multi-faceted report
dealing with the Westside Marsh, Blue Circle operations and the closure of a portion of
Waverly Road;
AND WHEREAS the Council of the Corporation of the Municipality of Clarington deems
it advisable to amend By-law 84-63, as amended, of the former Town of Newcastle, to
implement the agreement with Blue Circle Canada Inc;
NOW THEREFORE BE IT RESOLVED THAT the Council of the Corporation of the
Municipality of Clarington enacts as follows:
1. Schedule "3" to By-law 84-63, as amended, is hereby further amended by changing
the zone category from:
"Agricultural (A) Zone" to "Environmental Protection (EP) Zone"
"Extractive Industrial Exception (M3-1) Zone" to "Environmental Protection (EP)
Zone".
2. Schedule "A" attached hereto shall form part of this By-law.
3. This By-law shall come into effect on the date of passing hereof, subject to the
provisions of Section 34 of the Planning Act.
SCHEDULE "0"
- 2 -
BY-LAW read a first time this
day of
BY-LAW read a second time this
BY - LAW read a third time and finally passed this
day of
day of
1998
1998
1998
Mayor
Clerk
This is Schedule "A" to By-law 97-
passed this day of . 1997 A.D.
.
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BOWMANVILLE
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SCHEDULE "P"
PERMITTED ENCUMBRANCES AFFECTING THE BLUE CIRCLE LANDS
(Instrument numbers appearing in square brackets denote registrations in the Registry Office and
those appearing in round brackets denote registrations in the Land Titles Office. Blue Circle
Canada Inc. is defined as the "Company")
As to all the Lands
1. any reservations, exceptions, limitations, provisos and conditions expressed in the
original grants from the Crown, as the same may be varied by statue.
2. Unregistered Hydro Easements. By letter dated March 20, 1997, Ontario Hydro
advised that it claims the following unregistered rights in the Lands pursuant to
Section 42 of the Power Corporation Act, R.S.O. 1980, Chapter 384, as amended:
(a) Lot 14, Broken Front Concession, in the Township of Darlington, for 3 poles,
1 anchor and a 16.5 foot right of way granted by the' Estate of John Edwin
Allin on February 12, 1951 (P28558);
(b) Lot 14, Broken Front Concession, Township of Darlington, for 1 pole,
occupation rights, a right 10 foot wide to cut and a further right of way, also
10 foot wide granted by Norman Brown on January 6, 1949 (P71814);
(c) Lot 16, Broken Front Concession, Township of Darlington, for 2 poles, 1
anchor and occupation rights granted by Garnet L. Symons on October 19,
1949 (P7209);
(d) Lot 14, Broken Front Concession, Township of Darlington, for 6 poles, 2
anchors, occupation rights, a 10 foot right-of-way and a 60 foot separation
allowance granted by St. Marys Cement Co. Ltd. on April 14, 1969 (P283637);
(e) Lot 14, Broken Front Concession, Township of Darlington, for 1 anchor
granted by St. Marys Cement Corporation on August 2, 1989 (P453511).
3. Any prescriptive rights acquired by any landowners.
As to all Lands except those fourthly described in Schedule "A"
4. Instrument No. [154028] (NL21965) registered August 31, 1989, being a
Development Agreement dated July 11, 1989 between the Company and The
Corporation of the Town of Newcastle ("Newcastle").
5. Instrument No. [161184] (NL28000) registered August 1, 1990, being a First
Amending Agreement dated May 23, 1990 between the Company and Newcastle.
SCHEDULE "P"
- 2 -
6. Instrument No. [161803] (NL28656) registered September 12, 1990, being a
Construction Agreement dated June 4, 1990 between the Company and the Central
Lake Ontario Conservation Authority.
7. Instrument No. [162555] (NL29408) registered October 30, 1990, being a Second
Amending Agreement dated october 15, 1990 with respect to item 3 above, between
the Company and Newcastle.
8. Instrument No. [D377830] registered December 19, 1991, being a Certificate of
Action by Cooper's Crane Rental Limited. {The same Certificate of Action in the
Land Titles Office was vacated and ruled off, as was the Construction Lien in both
systems pursuant to an order vacating the same which was obtained March 21, 1994
and registered in the Land Titles Office on March 25, 1994 as Instrument No.
[D429562]}.
9. Instrument No. [D453808] (LT723156) registered June 27, 1995, being a First
Amendment Agreement to the First Amending Agreement, being item 4 above,
dated May 22, 1996 between the Company and The Corporation of the Municipality
of Clarington ("Clarington").
10. Instrument No. [D485447] (LT786506) registered January 10, 1997, being a Second
Amendment Agreement to the First Amending Agreement, being item 4 above,
dated December 20, 1996 between the Company and Clarington.
As to those parts of the Lands firstly described in Schedule "A"
11. Any rights of the public to pass and repass over the unopened portion of Darlington
Street as shown on Plan H-50078, as set out in Instrument Numbers [11682] and
[N30724].
As to those parts of Lands described secondly in Schedule "A"
12. Subject to certain existing rights of way which may have been acquired by
prescription along the beach at the southerly limit of part of the Blue Circle Lands,
as set out in the executors deed dated November 5, 1952 in favour of Alfred Hislop
Allin registered on November 21, 1952 as Instrument No. [21101] and in a deed
dated August 1, 1943 and registered on August 16, 1945 from the Trustees of
Walmer Road Baptist Church to Carl Christian as Instrument No. [17811] and in a
deed dated July 29, 1966 from Tom Popofsky, Vladimir Boujos and Nick Mousmanis
to St. Marys Cement Co. Limited and registered on August 25, 1966 as Instrument
No. [N30633].
SCHEDULE "P"
- 3 -
13. Instrument No. [98766] registered May 14, 1980, being a Development Agreement
made between the Company and Newcastle.
14. As to Closure Areas A, B, C and D, Reservation of temporary easements for services
provided by Ontario Hydro, Clarington Hydro, Bell Canada and Rogers Cable
Television.
\
ATTACHMENT #5
~
ll-IE CffiPOOATI(XIj Cl' ll-IE rUHCIPALITY Cl' ClJlRlfIGT(}l
REPORT
Meeting:
GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
File # -rO~.
Res. # GQ;\. - 55'6 -9 7
By-Law #
Date:
October 6, 1997
~lD E: 1 97 File #:
Report #:
Subject:
APPLICATION TO STOP-UP, CLOSE AND AUTHORIZE THE SALE OF
PORTIONS OF THE ROAD ALLOWANCE OF WAVERLY ROAD
Recommendations:
It is respectfully recommended that the General Purpose and
Administration Committee recommend to Council the following:
1. THAT Report WD-64-97 be received;
2. THAT further to the recommendations approved in Reports ADMIN-
42-97 (September 29, 1997), and WD-51-97 (August 18, 1997),
and conditional on Council approval of an agreement with Blue
Circle Canada Inc., staff be authorized to prepare the
appropriate authorizing by-laws for Council's approval for the
following:
i) to stop up and close portions of the road allowance known
as Waverly Road;
ii) to convey those portions of Waverly Road to be stopped up
and closed to Blue Circle Canada Inc.;
iii) to assume and dedicate the proposed portion of the Blue
Circle haul road and its extension as a temporary public
highway; and
3. THAT the interested parties listed in this report and the
delegations be advised of Council's decision.
."CYCLED t:t\ p..,,"
....ER 'ftt:!:1"'C'CL"
""<SOSPRHrEDONReCYClEOP""""
REPORT NO.: WD-64-97
PAGE 2
REPORT
1.0
ATTACHMENTS
Attachment No. 1 Key Map
Attachment No. 2 Report WD-51-97
Attachment No. 3 Report Admin-42-97
BACKGROUND
2.0
2.1
Council, at its meeting of September 29,
recommendations in Report Admin-42-97, as
1997, approved
follows:
the
"THAT Report Admin-42-97 be received;
THAT the applications to stop up, close and convey a portion
of the road allowance known as Waverly Road to Blue Circle
Canada Inc. and the proposed dedication of a portion of the
Blue Circle haul road and its extension as a temporary public
highway be referred back to staff for consideration of the
delegations and preparation of a report for the General
Purpose and Administration Committee on October 6, 1997; and
THAT the interested parties listed in this report and the
delegations be advised of Council's decision."
2.2 Since Council's consideration of Report WD-42-97, Blue Circle
Canada Inc. has modified its request for the immediate closure
and conveyance of portions of Waverly Road by deleting from
the request the immediate closure and conveyance to it of the
portion of Waverly Road located between the Ontario Hydro
lands and the intersection of the "Haul Road to be Leased"
with Waverly Road. (See Attachment No.2 to Report WD-51-97.)
(The portion of Waverly Road which will not be closed
immediately and has been withdrawn from Blue Circle's present
request for closure and conveyance is identified as Part 2 on
Reference plan 40R-17775.) The northerly "Extension of Road
(To Be Leased)" also shown on Attachment No.2 to Report WD-
REPORT NO.: WD-64-97
PAGE 3
51-97 (now shown as Part 16 on Reference plan 40R-17775) will
not be leased to the Municipality and consequently will not be
dedicated as a Temporary Public Highway. Certain reserves
which would have connected the "Extension of Road (To Be
Leased)" to the portions of Waverly Road that would have
remained open are owned by the Municipality also will not be
dedicated as a part of the Temporary Public Highway. They are
shown as Parts 5, 6, 10 and lIon Reference Plan 40R-17775.
2.3 Attachment No.3 to this Report shows the revised portion of
Waverly Road to be closed the "Haul Road to be Leased" and the
"Extension of Road to be Leased." The latter two areas will
be laid out and dedicated as the Temporary Public Highway.
3.0 REVIEW AND COMMENT
3.1 It is generally recognized that comments made by delegations
at the September 29, 1997 Council meeting have already been
heard and given due consideration during either the Waterfront
Regeneration Trust process, Report WD-Sl-97, (dated August 18,
1997) or Report Admin-42-97, (dated September 29, 1997). In
particular, the Waterfront Regeneration Trust held four publ ic
discussion sessions from December, 1994 through to April, 1995
leading up to their interim report dated June, 1995.
Following this, the Trust invited a number of interested
parties, including local residents, naturalists, Provincial
and Federal agencies to participate in two work groups through
the summer and fall of 1995, culminating in the November 1995
release of their report entitled "Westside Marsh-Report and
Recommendations."
Certain comments by delegations at the September 29, 1997
Council meeting are discussed in the following paragraphs.
3.2 Emerqencv Access to Cedar Crest Beach
Although addressed in the staff presentation at the beginning
REPORT NO.: WD-64-97
PAGE 4
of the September 29, 1997 meeting, concerns were still
expressed regarding emergency response time. As the present
point in our negotiations, we are attempting to secure an
emergency route through Blue Circle lands to take effect upon
the closing of Waverly Road and will continue following
construction of the Westside Marsh connecting bridge.
3.3 Haul Road Traffic
Concern was raised regarding the use of the haul road by
residents in conjunction with Blue Circle Inc. "pit hauling"
vehicles. Please be advised that once the haul road is
dedicated as a temporary public highway, only those Blue
Circle vehicles which are licensed for regular road travel
will be allowed to use this dedicated access to Cedar Crest
Beach. No "off-road" Blue Circle pit haulers will be allowed
to use this section of roadway. In actual fact, Blue Circle
pit haulers have no reason, at present, to use the Blue Circle
haul road accessing the St. Mary's dock. At present, pit
haulers travel back and forth between the pit and the primary
crusher located in proximity to the main St. Mary's plant
operation.
3.4 Load Carrvinq Capabilities of Proposed Bridqe and Approaches
Staff clarified, at the September 29, 1997 meeting, that the
construction of the Westside Creek Bridge as "full load" meant
that, following construction, there would be no weight
restrictions at the bridge and the bridge would be fully
capable of carrying Municipal fire trucks and other heavy
delivery vehicles which normally travel on our municipal
roads. Cove Road would be reconstructed to carry traffic in
a manner similar to other municipal roads and would only be
subj ect to the normal spring half load season presently
experienced on other roads accessing the area (i.e. West Beach
Road) .
REPORT NO.: WD-64-97
PAGE 5
3.5 Use of Oualified Arborist
One resident suggestion involved the use of a qualified
arborist to ensure proper care of trees. As already
recommended in the Scoped Environmental Impact Study, it is
our intention to retain various environmental consultants to
assist at various stages of the proposed construction.
3.6 Leased Haul Road vs Continued use of Waverly Road
Although mentioned in previous reports, it is important to
repeat why the haul road and its extension must be used rather
than the existing paved surface of Waverly Road. The primary
aspect of the agreement between the Municipality and Blue
Circle results in the transfer of Waverly Road in exchange
for the Blue Circle lands identified in the Trust Report of
November, 1995. The Municipal Act prohibits the closing of a
public highway, which is the only access to properties, unless
access by another public highway is provided. In order to
address these considerations, staff has negotiated for, and
Blue Circle has agreed, to lease to the Municipality, the
portions of its present haul road and extension necessary to
provide continuous access via a public highway to the
residents of the Cedar Crest Beach Road and Watson Drive
areas.
4.0 FUTURE ACTION
4.1 Council was advised at the September 29, 1997 meeting, that a
report on the negotiations between Clarington and Blue Circle
would be forthcoming at the October 6, 1997, General Purpose
and Administrative meeting. As negotiations are still
ongoing, the follow-up report pertaining to other comments
expressed at the September 29, 1997 meeting and to
negotiations on the agreement with Blue Circle will be
presented directly to the Council meeting scheduled for
October 14, 1997.
REPORT NO.: WD-64-97
PAGE 6
Respectfully submitted,
Reviewed by,
~ L- V.rf.--/
Stephen A. Vokes, P.Eng.
Director of Public Works
W. H.
Chief
SAVjwc
Interested Parties:
Blue Circle Canada Inc.
Port Darlington Community Association
Port Darlington Community Association
~~~
Stockwell --
Administrative Officer
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THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
xxx~~~mS2fj[j{ljfxr~~i!K1H8cxx
REPORT
Meeting:
SPECIAL MEETING OF COUNCIL
File #
Res. #
By-Law #
Date:
AUGUST 18, 1997
Report #:
WD-51-97File #:
Subject:
APPLICATION TO STOP UP AND CLOSE A PORTION OF THE ROAD
ALLOWANCE KNOWN AS WAVERLY ROAD IN BOWMANVILLE AND TO
CONVEY THE SAME TO BLUE CIRCLE CANADA INC. (ST. MARY'S
CEMENT)
PROPOSED DEDICATION OF PORTIONS OF THE HAUL ROAD AND
EXTENSIONS AS A PUBLIC HIGHWAY UNTIL THE TERMINATION OF
A LEASE OF THEM TO THE MUNICIPALITY
RECOMMENDATIONS:
It is respectfully recommended that Council approve the following
recommendations:
1. THAT Report WD-51-97 be received;
\
2. THAT the portion of the haul road and extensions of it shown
schematically on Attachment No.2, be dedicated as a public
highway until the termination of the lease of them to the
Municipality which is referred to in this report;
3. THAT, subject to compliance with relevant legislation, By-law
No. 95-22, the lease to the Municipality and dedication of a
public highway of the portions of the haul road and extensions
referred to in Recommendation No.2, and the approval by
Council of appropriate land exchange and financial
arrangements with the applicant referred to in this report,
being portions of Waverly Road generally located from a point
approximately twenty metres (20 m) south of the southerly
limit of the Ontario Hydro Right-of-Way to a point
approximately one hundred and fifty metres (150 m) north of
Watson Drive be closed as a public highway and conveyed to the
Applicant;
REPORT f'Kl.: w)-64-97
ATTJlD-f.fNT f'Kl. : 2
REPORT NO.: WD-51-97
Paqe 2
4.
THAT staff be authorized to advertise a
required under the Municipal Act to implement
No. 2 and 3;
Public Hearing
Recommendations
5. THAT, if following such Hearing, Council passes the by-laws to
stop up and close those parts shown schematically on
Attachment No.2, and to authorize the conveyance of them to
the Applicant, and to dedicate the lands referred to in
Recommendation No.2 as a public highway, the Mayor and Clerk
be authorized to execute the necessary documents to complete
the closure and conveyance to the Applicant;
6. THAT staff be authorized to take action to obtain the
necessary approvals required by relevant legislation;
7. THAT by-laws to give effect to this request be passed;
8. THAT the Clerk obtain written approval of the by-law to close
and convey the subject portions of Waverly Road, by registered
mail, from the Region of Durham;
9. THAT Blue Circle Canada Inc., the Port Darlington Community
Association, the Waterfront Regeneration Trust, Central Lake
Ontario Conservation and Ontario Hydro be advised of Council's
decision.
REPORT
1.0 ATTACHMENTS
Attachment No. 1
Attachment No. 2
Key Map
Map showing portions of Waverly Road
Proposed to be Closed and Conveyed and
the portions of the haul road and
extension located on the Applicant's
lands which are to be leased to the
Municipality and dedicated for the term
of the lease as a public highway.
REPORT NO.: WD-51-97
Paqe 3
2.0
2.1
2.2
2.3
2.4
BACKGROUND
The Waterfront Regeneration Trust issued its Westside Marsh
Report and Recommendations in November, 1995. This Report
followed the submission by the Honourable David Crombie of the
Interim Report on the Royal Commission on the .Future of the
Toronto Waterfront in 1990. The 1995 Report was prepared with
the encouragement of the Municipality, the Community and St.
Mary's Cement. St. Mary's Cement has recently been acquired
by Blue Circle Canada Inc. ("Blue Circle"), the present
Applicant.
Westside Marsh was identified by the Trust as the only
Provincially significant Class II Wetland on the Durham shore
of Lake Ontario. The Trust noted that it is valued highly by
"-
regional and local naturalists and by residents on the
Municipali ty' s waterfront. However, the limestone beneath the
westside Marsh is licensed for extraction and subject to
protection under provincial policy.
The Wests ide Marsh borders on approximately fifty (50)
dwellings in the Cedar Crest Beach Road and Watson Drive
area. It is also adjacent to a number of dwellings in the
Cove Road area. Cove Road presently is a private road.
In preparing its Report of November, 1995, the Trust organized
a number of meetings between two groups of stakeholders to
consider habitat issues and other community concerns related
to St. Mary's proposed developments in the Westside Marsh.
While these meetings were ongoing, additional studies were
conducted and the Trust met with relevant agencies and
individuals to obtain additional expert information. The plan
contained in the Trust Report stated the following obj ecti ves:
. protect most of the Marsh and create a new habitat for
fish, birds, plants and animals in order to achieve no
net loss, overall;
. .create 120 acres of parkland to protect the community;
REPORT NO.: WD-51-97
Paqe 4
. close approximately four (4) acres of Waverly Road which
would be transferred to St. Mary's Cement and provide
access to Cedar Crest Beach by a bridge and road
connection to West Beach Road;
. relocate a portion of Westside Creek, east and then
south, into the portion of Westside Marsh which will be
retained.
2.5 At Council's direction, the Chief Administrative Officer has
held a number of meetings with staff and representatives of
Blue Circle to attempt to work out an integrated package of
business and legal arrangements necessary to implement the
Trust's recommendations and to protect the Municipality's
interests as well as the interests of the affected
communities. The following have been undertaken:
. Preliminary drawings have been prepared by the
Municipality's consultants which show the proposed bridge
that would connect Cedar Crest Beach Road to Cove Road
and the improvements that are necessary to bring Cove
Road up to Municipal standards.
. Meetings have been held by staff with representatives of
CLOCA and Ontario Hydro respecting property transfer and
management arrangements that would have to be made with
those organizations. Discussions have been held with
representatives of the Federal Department of Fisheries
and Oceans respecting its requirements to compensate for
the loss of a portion of the fisheries habitat.
. Staff have contacted the land owners who would be
affected by the acquisition of Cove Road and its
dedication as public highway extending to Cedar Crest
Beach Road as well as the construction of the proposed
bridge.
. Staff have also'been in contact with representatives Df
the Ministry of Environment and Energy respecting
compliance with the Ontario Environmental Assessment Act
REPORT NO.: WD-51-97
Paqe 5
and with the Canadian Coast Guard respecting compliance
with the Navigable Waters Protection Act and the Federal
Environmental Assessment Act.
All of these discussions are ongoing at the present time. The
Chief Administrative Officer expects that he will be in a
position to report on all of them to Council at its meeting on
September 29, 1997.
2.6 The meetings with Blue Circle have included negotiations
respecting the consideration that would be paid by Blue Circle
in money and in . land in exchange for the conveyance of the
portions of Waverly Road referred to in this report.
2.7 The residents of the Cedar Crest Beach Road and Watson Drive
areas now have access to their properties only via Waverly
Road. The acquisition of Cove Road, its dedication as a
public highway, and the construction of the proposed bridge to
connect Cove Road to Cedar Crest Beach Road would follow the
closure and conveyance of the portions of Waverly Road in
question. The Municipal Act prohibits the closing of a public
highway which is the only access to properties unless access
by another public highway is provided. In order to address
these considerations, staff have negotiated for and Blue
Circle has agreed to lease to the Municipality the portions of
its present haul road and extensions of it shown on the Map
contained in Attachment NO.2. The northerly extension of the
haul road is to be constructed by Blue Circle at its expense.
2.8 The portion of the haul road and its extensions will be leased
to the Municipality at a nominal rental, for a term which will
expire when Cove Road and the proposed bridge are dedicated as
a public highway under the Municipal Act. During the term of
the lease, the portion of the haul road and its extensions
would be dedicated by the Municipality as a public highway so
that continuous access via a public highway would continue to
be provided to the residents of the Cedar Crest Beach Road and
REPORT NO.: WD 51-97
Paqe 6
Watson Drive areas.
2.9 Construction of the proposed bridge to connect Cove Road to
Cedar Crest Beach Road will require approvals under the
Ontario Environmental Assessment Act and the Navigable Waters
Protection Act. Staff are continuing to investigate other
approvals which may be required under relevant provincial and
Federal Legislation.
2.10 Blue Circle has agreed to share with the Municipality the cost
of the upgrading of Cove Road to municipal standards and the
construction of the proposed bridge to connect Cove Road and
Cedar Crest Beach Road. The Chief Administrative Officer will
be reporting further on recommended cost sharing, land
exchange and management arrangements to Council at its meeting
of September 29, 1997.
2.11 Staff intend to hold an informal meeting with residents
concerning the road plans early in September (tentative date -
Thursday, September 4, 1997). Representatives of relevant
agencies will be invited to participate. A report will be
submitted to Council on the results of this meeting for the
meeting on September 29, 1997.
CONCLUSION
3.0 The holding of the Public Meeting by Council to consider the
proposed closure and conveyance of portions of Waverly Road to
Blue Circle and the dedication as a public highway for the
term of the lease to the Municipality of the portion of the
. haul road and extensions as shown on the map contained in
Attachment No.2, is the first step in the implementation of
the Waterfront Regeneration Trust recommendations respecting
the westside Marsh. It is requested that Council authorize
staff to advertise a:Public Meeting of Council to be held to
consider these proposals on September 29, 1997. The approval
of the proposals will be subject to compliance by the
REPORT NO.: WD-51-97
Paqe 7
Municipality with all relevant legislation applicable thereto
as well as the Municipal Sale of Surplus Land By-law (By-law
No. 95-22).
The approval of the proposals will also be subject to
Council's approval of appropriate land exchange, and financial
arrangements with Blue Circle which are considered necessary
by Council to implement the Waterfront Regeneration Trust's
recommendations contained in its Report of November, 1995, and
to protect the Municipality's and the communities' interests.
Respectfully submitted,
Reviewed by,
~~
Stephen A. Vokes, P. Eng.,
Director of Public Works
W.R. Stockwell,
Chief Administrative Officer
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July 18, 1997
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REPORT 116
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
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REPORT
Council
File #
Res. #
By-Law #
Meeting:
Date:
Monday, September 29, 1997
kM #.
ADMIN-=42-~T .
Report #:
Subject:
APPLICATION TO STOP UP AND CLOSE A PORTION OF THE ROAD
ALLOWANCE KNOW AS WAVERLY ROAD AND CONVEY THE SAME TO BLUE
CIRCLE CANADA INC.
RecommendaMQPOSED DEDICATION OF PORTION OF THE BLUE CIRCLE HAUL ROAD
AND EXTENSIONS TO IT AS A TEMPORARY PUBLIC HIGHWAY
CONVEYANCE OF PORTIONS OF WESTS IDE MARSH, BOWMANVILLE
MARSH AND OTHER LANDS OWNED BY BLUE CIRCLE TO CLOCA
IMPLEMENTATION OF THE RECOMMENDATIONS OF THE WATERFRONT
REGENERATION TRUST REPORT ON WESTSIDE MARSH
It is respectfully recommended to Council the following:
1. THAT Report ADMIN-42-97 be received;
2. THAT the applications to stop up, close and convey a portion of the road
allowance known as Waverly Road to Blue Circle Canada Inc. and the proposed
dedication of a portion of the Blue Circle haul road and its extensions as a
temporary public highway be referred back to staff for consideration of the
delegations and preparation of a report for the General Purpose and
Administration Committee on October 6, 1997;
3. THAT the interested parties listed in this report and the delegations be advised
of Council's decision.
1.0 BACKGROUND
1 .1 Waterfront Regeneration Trust Process
1.1.1 In December 1993, the Waterfront Regeneration Trust, at the request of the
Municipality and Blue Circle Canada Inc. ("Blue Circle" formerly know as St. Marys
Cement Corporation), agreed to help resolve the numerous issues related to Blue
Circle operation on the Lake Ontario Waterfront, including their plans to quarry the
Westside Marsh.
1.1.2 In December 1994, three public discussion sessions were held in Clarington to
increase public understanding of Blue Circle plans and explore any practical
,<.*J"
REPORT NO.: VlU-64-97
ATTJICI-ftENT NO.: 3
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I
alternatives that provided for both the long term viability of the Blue Circle
operations and the preservation of the greatest portion of the wetland possible.
1 .1.3 On April 5, 1995 the Trust held a fourth public discussion session to outline its
proposal on a concept to resolve the primary issues and receive public
comments. This was documented in an Interim Report dated June 1995.
1 .1.4 The Trust invited a number of interested parties, including local residents,
naturalists, the Ministry of Natural Resources (MNR), the Central Lake Ontario
Conservation Authority (CLOCA) and the federal Department of Fisheries and
Oceans (DFO), to participate in two work groups to consider habitat issues and
other community concerns related to Blue Circle's plans. These work groups met
regularly through the summer and fall of 1995 to explore issues and review
information, and to assist the Trust in the development of options for resolving the
various issues.
1.1.5 In November 1995, the Trust released a report entitled Westside Marsh - Report
and Recommendations in which they presented a concept for the preservation of
the Westside Marsh. The major recommendations provided in the Report are as
follows:
. protect much of the Marsh and create a new habitat for fish, birds, plants
and animals in order to achieve no net loss overall;
. transfer the CBM stone crushing and readi-mix operations to an industrial
location provided by the Municipality
. create 120 acres of parkland to protect the community
. close Waverly Road and transfer to Blue Circle and provide a new road
access is to be provided to Cedar Crest Beach Road by constructing a
bridge and road connections to West Beach Road.
1 .2 Implementation of Trust Proposal
1.2.1 In July 1996, Council authorized Staff to initiate negotiations with representatives
of St. Marys Cement regarding the closure and conveyance of Waverly Road, and
2
the transfer of the retained Marsh and other lands to a public agency. As well,
in order to continue public access to Cedar Crest Beach Road once Waverly
Road is closed, Council agreed to take public ownership of Cove Road and to
build a bridge over the mouth of the Marsh to connect the two roads.
1 .2.2 Staff initiated negotiations with the owners of property on both the east and west
sides of the mouth of the Marsh to acquire the necessary lands to build the
bridge and road approaches.
1.2.3 The Municipality retained the consulting firm Bird and Hale Limited to undertake
a scoped environmental study to determine the environmental impacts related to
the construction of the bridge and road approaches. This report, completed in
November 1996, indicates that there are no serious impacts on the natural
environment resulting from the location and construction of the bridge and road
approaches. The Report recommends a number of mitigative measures to reduce
or eliminate the potential impacts.
1.2.4 The consulting firm Totten Sims Hubicki was retained by the Municipality to
undertake an engineering study to determine the final design and location of the
bridge crossing and road approaches, including the necessary upgrades to Cove
Road.
1.2.5 Two public information centres were held. A Public Information Centre was held
on February 18, 1997 to present and discuss the findings of the Environmental
Impact Study with consultants and Staff. On September 4, 1997 a second Public
Information Centre was held to provide information relating to the location and
design of the bridge, the improvements to Cove Road and the diversion of
Wests ide Creek. Notice of both Information Centres was provided to all residents
of the waterfront communities adjacent to the Marsh.
3
2.0 CLOSURE OF WAVERLY ROAD
2.1 Report WD-51-97, as approved by Council on August 18, 1997, outlines specifics
with regard to the closure of a portion of Waverly Road. This previous report
authorized staff to advertise the Public Hearing required under the Municipal Act
to close approximately five (5) acres of Waverly Road which would be transferred
to Blue Circle and provide access to Cedar Crest Beach by a bridge and road
connection to West Beach Road.
2.2 On April 7, 1997, Council approved report ADMIN-11-97 and directed staff to
negotiate with Blue Circle respecting the financial package to cover the cost of
the Cove Road project in order to transfer Waverly Road in exchange for the Blue
Circle lands identified in the Trust's report of November 1995.
2.3 The residents of the Cedar Crest Beach Road and Watson Drive areas now have
access to their properties only via Waverly Road. The acquisition of Cove Road,
its dedication as a public highway, and the construction of the proposed bridge
to connect Cove Road to Cedar Crest Beach Road would follow the closure and
conveyance of the portions of Waverly Road in question. The Municipal Act
prohibits the closing of a public highway, which is the only access to properties,
unless access by another public highway is provided. In order to address these
considerations, staff has negotiated for, and Blue Circle has agreed to lease to the
Municipality, the portions of its present haul road and extensions of it shown on
the Map contained in Attachment No.2.
2.4 The portion of the haul road and its extensions will be leased to the Municipality
at a nominal rental, for a term which will expire when Cove Road and the
proposed bridge are dedicated as a public highway under the Municipal Act.
During the term of the lease, the portion of the haul road and its extensions would
be dedicated by the Municipality as a public highway so that continuous access
via a public highway would continue to be provided to the residents of the Cedar
Crest Beach Road and Watson Drive areas.
4
2.5 For clarification, the residents of the Cedar Crest Beach Road and Watson Drive
areas would utilize the leased portion of the haul road and its extensions for that
period of time following the transfer of Waverly Road to Blue Circle (estimated to
be February 1998) until such time as Cove Road and the proposed bridge are
dedicated as public highway (estimated to be late Fall 1998). Any unexpected
problems with approvals under relevant Provincial and Federal Legislation or land
acquisition could serve to delay construction, thus increasing the length of time
requiring utilization of the leased haul road.
3.0 CONSTRUCTION OF WESTSIDE CREEK BRIDGE AND IMPROVEMENTS TO
COVE ROAD
3.1 Preliminary drawings have been prepared by the Municipality's consultants which
show the proposed Wests ide Creek bridge and the improvements that are
necessary to bring Cove Road up to Municipal standards. The project includes
constructing a bridge spanning Westside Creek including 120 metres of Cedar
Crest Beach Road and the full length of Cove Road from the bridge to West
Beach Road, a length of 325 metres.
3.2 The bridge shall be of concrete construction with a horizontal span of 32 metres,
one traffic lane wide with a sidewalk on the south side. The design characteristics
shall conform with current day criteria.
3.3 Cove Road shall be built with a pavement width of 6.5 metres with adjacent
sodded shoulders and swales. The local residents have requested that
construction designs be established as necessary to retain the present character
of the neighbourhood.
3.4 Construction of the Westside Creek bridge will require approvals under the
Ontario Environmental Assessment Act and the Navigable Waters Protection Act.
Staff are continuing to follow up on all other approvals that may be required under
5
relevant Provincial and Federal Legislation.
3.5 We have circulated documentation associated with the proposed project to all
affected Provincial and Federal agencies. The Environmental Assessment branch
of the Provincial Ministry of the Environment and Energy have determined the
project is subject to Schedule B of the Act. This requires the Municipality to
publicly advertise the Notice of Project and to allow a 30 calendar day period for
public review. This public notice was given as a result of Council's approval of
Report WD-51-97 on August 18,1997. We have catalogued copies of all reports,
correspondence etc., in chronological order for public review and comment. The
requirements of the Act will be fulfilled at the termination of the 30 day period,
ending October 10, 1997. However, approval of the undertaking could be
delayed should an objector file a notice requesting a bump-up to the Schedule
C category of the Act.
3.6 The Canadian Coast Guard (CCG) has declared the open waters of Westside
March as navigable and subject to the provisions of the Federal Navigable Waters
Protection Act. This effect of this declaration is to require the preparation of an
Environmental Study Report with subsequent circulation of the report by CCG to
other agencies. This process has now commenced and barring any difficulties,
we anticipate receiving the necessary approvals by October 31. 1997.
3.7 The decision by staff and Council early in the design process to construct a free-
span bridge has been very advantageous. In taking this course of action,
construction of the bridge abutments does not take place within the limits of the
mouth of the marsh, thereby eliminating or at least minimizing disruption to the
waters in question. The Ministry of Natural Resources, CLOCA and the
Department of Fisheries and Oceans have recognized that the choice of a free-
span structure eliminates or at least minimizes their concerns relating to
environmental impacts of the structure. The Canadian Coast Guard (CCG) are
of the opinion of the proposal for a free-span structure does not eliminate their
6
concerns respecting environmental impact. The CCG continues to examine the
bridge proposal for compliance with the Federal Environmental Assessment Act.
4.0 STATUS OF NEGOTIATIONS WITH BLUE CIRCLE
4.1 Staff and Blue Circle have been meeting to settle the terms of Principles of
Understanding that will achieve the intent of the Waterfront Regeneration Trust's
recommendations to the greatest extent possible.
4.2 The implementation of the recommendations will require that:
. Blue Circle enter into a legal arrangement with Ontario Hydro, the Federal
Department of Fisheries and Oceans, the Ministry of Natural Resources
and CLOCA respecting the fish habitat;
. Blue Circle enter into a legal arrangement with CLOCA respecting the
diversion works and lands; and
. the transfer of certain lands to CLOCA, the making of a management
agreement respecting them by the Municipality and CLOCA and the
implementation of the plan by CLOCA.
4.3 The implementation ofthe recommendation respecting Waverly Road requires that
a temporary replacement public highway be leased from Blue Circle, which will
terminate when the Cove Road and the Westside Creek Bridge are dedicated as
a public highway. The recommendation respecting Cove Road and its connection
to Cedarcrest Beach Road via the new Westside Creek Bridge involves the
acquisition of certain lands and interests in Cove Road from a number of private
owners.
4.4 Negotiations or actions have been undertaken respecting each of the above
matters. They will be discussed in detail in a further report to the General
Purpose and Administration Committee meeting on October 6, 1997.
7
4.5 The first step in implementing the Waterfront Trust's recommendations, referred
to above is for Council to hear and consider representations and comments made
at Council's meeting on September 29, 1997 respecting the proposed closing of
a portion of Waverly Road, the authorization of a conveyance of this land to Blue
Circle, and the approval of the dedication of the temporary public highway
referred to above. The Principles of Understanding should be considered by
Council before a final decision is made respecting the proposed closure,
conveyance and dedication.
4.6 For legal reasons, the Principles of Understanding will be made fully conditional
on the necessary senior government approvals being granted. In the event that
all approvals are not granted by December 31, 1999, the Principles of
Understanding will unwind and consequently will not bind either the Municipality
or Blue Circle after that date.
4.7 The main elements of the Principles that have been negotiated to date are the
following:
. The Municipality will transfer the portion of Waverly Road to be closed
which is shown on the map contained in Attachment #2 to Blue Circle if
Council decides to pass the necessary by-laws to authorize the closure,
conveyance and dedication referred to above and to dedicate the
proposed Temporary Public Highway, referred to below.
. Blue Circle will lease to the Municipality the haul road which is shown on
the map contained in Attachment #2. It is located to the west of Waverly
Road and has connections to Waverly Road. The haul road will then be
dedicated as a public highway ("Temporary Public Highway") until Cove
Road and the Westside Creek Bridge are dedicated as a public highway
and the lease is terminated.
. On the closing date, Blue Circle will transfer to CLOCA the Marsh Link
lands, the Bowmanville Marsh and the Bowmanville Valley lands shown on
Attachment #3. Blue Circle will also transfer in escrow to CLOCA the
Reconfigured Westside Marsh also shown on Attachment # 3. The transfer
to CLOCA will be effective on the closing of the Temporary Public Highway
and its release of the lease to Blue Circle.
8
. The lands transferred to CLOCA will be managed as interrelated
components of a wetlands complex with adjacent wetlands. (The Marsh
Link lands had been intended to be used by Blue Circle as a site for the
relocation of its rock crusher.)
. Blue Circle will enter into an agreement with Ontario Hydro to permit the
construction of Westside Creek diversion works on Ontario Hydro lands.
CLOCA will manage these works and will be transferred an easement
interest by Ontario Hydro.
. Blue Circle will construct a portion of the diversion works on lands which
it now owns and will retain.
. The balance of the Westside Marsh will be a future quarry site as shown
on the map contained in Attachment #1.
. Blue Circle and CLOCA will execute a monitoring and maintenance
agreement. They will also execute an agreement with the Federal
Department of Fisheries and Oceans and the Ministry of Natural
Resources. The agreements will address the construction and
maintenance of the Westside Creek diversion works and other flood control
works. The installation and maintenance of the bio-engineering works
necessary to establish a new fish habitat will also be addressed.
. CLOCA will manage the lands transferred to it by Blue Circle in accordance
with a management agreement which will be made by CLOCA and the
Municipality.
. The management agreement will provide for the preparation of a
management plan according to terms of reference which shall first be
approved by the Municipality. The cost of preparing the management plan
will be paid by the Municipality and Blue Circle as a contribution to the
start-up costs of CLOCA in the management of the Westside
Creek/Bowmanville Marsh wetlands complex.
. Blue Circle and the Municipality will contribute equal amounts of money to
provide start-up funds for CLOCA to assist it in implementing the objectives
of the management plan including such matters as tree planting, ponds,
snake hibernaculum, trail and look-outs.
. Blue Circle and the Municipality will contribute equal amounts of money to
fund the cost of implementing the above principles. This will include the
estimated cost of reconstructing Cove Road and constructing the Westside
Creek Bridge.
9
. Blue Circle will provide for an emergency access through their lands to
serve the residents of Cedar Crest Beach.
. Blue Circle will not object to modifications to the Regional Official Plan and
the Clarington Official Plan which reflect the arrangements.
. Blue Circle will not object to the rezoning of their lands which will be
conveyed to CLOCA to an Environmental Protection zone.
. Blue Circle will relocate the waterfront trail and provide appropriate safety
measures (guide rails, security fencing) at its expense.
5.0 CONCLUSION
This report is prepared for the purpose of the Public Meeting on the applications:
i) to stop up, close and convey a portion of Waverly Road to Blue Circle; and
ii) to dedicate a temporary public highway until such time as the
improvements to Cove Road and the construction of the Westside Creek
bridge is completed.
After hearing the delegations, it is respectfully recommended that the matter be
referred back to staff for a report to be considered at General Purpose and
Administration Committee on October 6, 1997.
Respectfully submitted,
Reviewed by,
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Stephen A. Vokes, P. Eng.
Director of Public Works
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W. H. Stockwell
Chief Administrative Officer
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Franklin Wu, M.C.I.P., R.P.P.
Director of Planning
and Development
10
Attachments
1 . Westside Marsh and Blue Circle Quarry
2. Road Map
3. Lands to be Conveyed to CLOCA
Interested Parties:
Blue Circle Canada Inc.
Port Darlington Community Association
Central Lake Ontario Conservation Authority
11
ATTACHMENT '1
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To:
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Date:
Subject:
ATTACHMENT #6
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
Memorandum
Bill Stockwell, Chief Administrative Officer
Franklin Wu, M.C.I.P., R.P.P., Director of Planning and Development
September 5, 1997
CLOSURE OF WAVERLY ROAD
In accordance to By-law 95-22, I hereby recommend that Waverly Road,
south of the C.N.R. be declared surplus, and be closed and conveyed to St.
Marys Cement/Blue Circle in exchange for portion of the Westside Marsh land
and other lands on both sides of West Beach Road.
The said land exchange is necessary to implement the recommendation of
the Regeneration Trust and in my opinion, is in compliance with the
procedure governing the sale of real property as set out in By-law 95-22.
d r~~~k-
Frank
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ATTACHMENT # 7
SPECIFICATIONS FOR MANAGEMENT AGREEMENT BETWEEN THE
MUNICIPALITY AND THE CENTRAL LAKE ONTARIO CONSERVATION
AUTHORITY
Parties and their successors
Term of Agreement
CLOCA to be manager of Wests ide Creek/Bowmanville Marsh Wetland Complex
Managerial responsibilities of CLOCA including community consultation and
consultation with the Municipality and fund-raising from governmental and non-
governmental sources
Annual capital and operating budgets to be reviewed with the Municipality
Option to the Municipality to acquire lands and easements transferred to CLOCA
pursuant to the Principles for a nominal consideration in the event that CLOCA
is dissolved or its composition and powers are materially altered from those
presently in place, or CLOCA decides to sell or make a long term lease of the
lands or any portion of them
Preparation of a Management Plan in consultation with the Municipality, and
members of the community including Blue Circle and the Port Darlington
Community Association to address the following issues:
· to ensure to the extent reasonably practicable that there will be no net loss
overall in wildlife habitat and vegetation through measures that will be
designed to appropriately replace the ecological functions of the present
Westside Marsh within the Westside/Bowmanville Marsh Wetland
Complex;
· to provide for appropriate access to the lands by members of the public
including measures to ensure public safety and minimize damage to the
ecological functions;
· to address all constraints including the quarry operations, the existing
residential area, the Ontario Hydro operations and the CNR Railway;
· to provide for interpretation opportunities for the public;
· to identify implementation actions required to be taken by CLOCA, the
Municipality and other public authorities and private sector actors and
priority for implementation;
ATTACHMENT #7
- 2 -
CLOCA to identify appropriate projects for involvement of members of the
community from time to time
CLOCA to identify appropriate roles for the various governments, agencies, and
members of the community from time to time
CLOCA to identify appropriate monitoring activities to measure the health of the
ecosystem from time to time and to endeavour to implement remediation measures
where appropriate
ATTACHMENT #8
_e/a;r;"g'i;;n
ONTARIO
November 3, 1997
Mr. Wilson Little, P. Eng.
St. Marys Cement Corp.
400 Waverly Road
Bowmanville, Ontario
L1C 3K3
Dear Mr. Little:
RE:
Increase in Annual Tonnage from the Licensed Extraction Area:
Blue Circle Quarry - Bowmanville
In our negotiations on the Principles of Understanding regarding the Blue Circle lands at
Westside Marsh, you have requested that the Municipality of Clarington support an amendment
to your extraction licence that would permit an increase in annual tonnage that may be extracted
from Blue Circle's licenced quarry in Bowmanville from 3 million tonnes to 4.5 million tonnes.
Subject to Council's approval of this letter at its meeting on November 3, 1997 and provided that
satisfactory technical reports are provided to us demonstrating that there will not be a substantial
change in the emission of noise, dust or vibration or unacceptable impact on the road system
resulting from the increase in annual tonnage, the Municipality will not object to said increase
in your permitted annual tonnage under the Aggregate Resources Act.
Yours truly,
Franklin Wu, M.C.I.P., R.P.P.
Director Planning and Development
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CORPORATION OF THE MUNICIPALITY OF ClARINGTON
AO TEMPERANCE STREET. BOWMANlIllLE _ONTARIO' L1C 3A6. (905) 623-3379' FAX 623-4169
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REPORT #2
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THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
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REPORT
Meeting:
COUNCIL
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File # 00
Date:
JANUARY 12, 1998
Res. #:
By-Law #
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Report #:
AOMIN.02-!I8le #
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Subject:
APPLICATION FOR APPROVAL OF EXPROPRIATION OF LANDS NECESSARY TO
ESTABLISH COVE ROAD AS A PUBLIC HIGHWAY, TO CONSTRUCT AND USE THE
PROPOSED WESTSIDE CREEK BRIDGE AND APPROACHES AND TO ESTABLISH
THE BRIDGE AND APPROACHES AS A PUBLIC HIGHWAY
Recommendations:
It is respectfully recommended that Council approve the following:
1. THAT Report No. ADMIN-02-98 be received;
2. THAT Council hereby authorizes an application to be made to the Council of the
Corporation of the Municipality of Clarington as the approving authority under subsection
4(1) of the Expropriations Act, R.S.O. 1990 c.E.26, as amended, for the approval of the
expropriation of all interests in the lands more particularly described in paragraph 2.1, and
the rights-of-way described in paragraph 2.1 in Part 1 on Plan 40R-17895, for the purposes
of constructing and establish on the aforesaid lands a public highway including a bridge over
the Westside Creek and approaches to such bridge;
3. THAT Council hereby authorize staff to take all necessary actions to serve notice of its
application for approval to expropriate upon each owner of the lands to be expropriated and
to publish the aforesaid notice in accordance with subsection 6(1) ofthe Expropriations Act;
4. THAT Council pass the By-law contained in Attachment No.2; and
5. THAT a copy of this report be sent to the persons listed in Attachment No.3.
Attachments
Attachment NO.1 - Excerpt from Plan 40R-17895
Attachment No.2 - By-law
Attachment No.3 - Persons to be sent a copy of this Report
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Repo:t Admin-OZ-98
Page 2
1.0 Back2muOld
1.1 At its Special Meeting on November 3, 1997, Council approved the recommendations
contained in Report #Admin47-97 and authorized the Mayor and Clerk on behalf
of the Municipality of Clarington to execute Principles of Understanding between the
Municipality and Blue Circle Canada Inc. ("Blue Circle") respecting the
implementation of the recommendations of the Waterfront Regeneration Trust on
the Westside Marsh. The Principles of Understanding were executed on November
3, 1997.
1.2 In order to implement the Trust's recommendations and the Principles of
Understanding the Municipality will have to acquire title to Cove Road which now
is a private road and is shown as Part 2 on Plan 4OR-17895. Part 1 on Plan 4OR.
17895 which extends Cove Road to West Beach Road is owned by the Municipality
but it has not been dedicated as a public highway as yet. Parts 1 and 2 on Plan 4OR-
17895 are subject to a number of rights-of-way vested in the owners of certain
properties in the Cove Road area which are identified in paragraph 2.1. The rights-
of-way in Parts 1 and 2 on Plan 4OR-17895 also need to be acquired by the '
Municipality so that they can be terminated.
1.3 Under the Principles of Understanding, Cove Road and Part 1 on Plan 4OR.17895
are intended to be reconstructed and dedicated as a public highway connecting to
West Beach Road which is a public highway. Also, land will have to be acquired for
approaches to and the construction of the proposed Westside Creek Bridge. The
Bridge will connect Cedar Crest Beach Road (now a public highway) via Cove Road
to West Beach Road. This will permit the termination of the lease to the
Municipality by Blue Circle of a temponuy public highway which now parallels the
closed portion of the alignment of Waverly Road as provided for in the Principles of
Understanding.
1.4 Paragraph 6(a) of the Principles of Understanding states that without fettering
Council in the exercise of its legislative discretion, the parties intend that after
complying with all legal requirements the Municipality as soon as reasonable
practicable:
(i) will acquire title to the lands required for Cove Road and the Westside Creek
Bridge;
(ii) will reconstruct Cove Road and the approaches to it, and construct Westside
Creek Bridge and approaches to it in accordance with all legal requirements
Report Admin-02.9S
Page 3
and the Cove Road and the Westside Creek Bridge Plans and Specifications;
and
forthwith after the Municipality's Director of Public Works gives Blue Circle
written notice that Cove Road and the Westside Creek Bridge and the
approaches to them have been reconstructed or constructed to his satisfaction,
they will be dedicated by by-law passed pursuant to the Municipal Act as a
public highway and the obligation to keep Cove Road, the Westside Creek
Bridge and approaches to them in repair and maintained will be assumed by
the Municipality pursuant to the Municipal Act.
1.5 Any significant delay in acquiring Cove Road, the rights-of-way in Part 1 on Plan
4OR-17895 and the lands required for Westside Creek Bridge and its approaches to
it, could adversely affect the implementation of the Principles of Understanding and
consequently, the preservation of a significant portion of the Westside Creek Marsh
which is to be transferred to Central Lake Ontario Conservation Authority or as
otherwise directed by the Municipality.
(iii)
1.6 The lands and rights.of-way which need to be acquired by the Municipality are set
out in paragraph 2.1.
2.0 LANDS AND INTERESTS THAT NEED TO BE ACQUIRED
2.1 The lands and rights-oi-way descn'bcd below need to be acquired by the Municipality
for the purposes of constructing the proposed West Side Creek Bridge and related
approaches, reconstruction Cove Road and ultimately dedicating the bridge,
approaches and Cove Road as a public highway.
PART ON PLAN
40R-17895
LOT OR BLOCK AND PLAN
5
Part Block '0', Plan 198
Part Lot 10, Plan 198
2
6
Part Lot 11, Plan 198
7
Part Lot 12, Plan 198
RepC't! Admin-02-98
Page 4
8
Part Lot 13, Plan 198
10
Part Lot 12, BFC Darlington
11
Part Block 'I', Plan 318
12
Part Block'!', Plan 318
RIGHTS.OF.WAY
The Rights-of.Way in Parts 1 and 2 on Plan 40R.17895 that are in favour of the
owners from time to time of Lots 1 to 49, Blocks A to M and the Beach, Plan 198;
Lots 1 to 8 and 11 and Blocks B and C. Plan 106; Lots 13, 44 and 45 and Block P,
Plan 171 and Part of unsubdivided Lot 11, B.F.C. Darlington.
2.2 In addition to the properties referred to in paragraph 2.1, Parts 9 and 13 on Plan
40R.17895 are needed for the construction and ultimate dedication of the bridge and
related approaches. Parts 9 and 13 arc owned or controlled by Blue Circle which has
agreed to transfer them to the Municipality for a nominal consideration. Accordingly,
they do not need to be expropriated by the Municipality.
3.0 CONCLUSIONS
3.1 Council hereby authorizes an application to be made to the Council of The
Corporation of the Municipality of Oarington as the approving authority under
subsection 4(1) of the Expropriations Act, R.S.O. 1990 c.E.26, as amended, for the
approval of the expropriation of all interests in the lands more particularly described
in paragraph 2.1, and the rights-of-way described in paragraph 2.1 in Part 1 on Plan
40R-17895 for the purposes of constructing and establishing on the aforesaid lands
a public highway including a bridge over the Westside Creek and approaches to such
bridge.
3.2 Council hereby authorize staff to take all necessary actions to serve notice of its
application for approval to expropriate upon each owner of the lands to be
expropriated and to publish the aforesaid notice in accordance with subsection 6(1)
of the Expropriations Act.
3.3 The Council is the approving authority authorizing in the case of expropriation for
a municipal purpose. Section 6 of the Expropriations Act permits any owner of land
in respect of a notice of intention to expropriate is given to notify the Municipality
that a hearing is required. If notice is given, an inquiry officer will be appointed by
the Attorney General to hold a hearing as to whether the proposed expropriation is
Repc~"t Admin-02-98
Page 5
fair, sound and reasonably necessary in the achievement of the objectives of the
expropriating authority. If following consideration of the inquiry officer's report the
expropriation is approved by Council as the approving authority, and the
expropriation takes place. the owners' rights will be converted from ownership of
interests in the lands in question to a right to be paid fair market value compensation
for their interests. If compensation cannot be agreed to, it will be determined by the
Ontario Municipal Board
Respectfully submitted
Reviewed by
Frede .
Pro
D.M.R., R.RF.A.
~~
W.K Stockwell
Chief Administrative Officer
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86-l0-NIWGV 'ON .~oda~ o. l'ON INaHHJVIIV
ATTACHMENT NO. 2
THE CORPORATION OF THE MUNlCIPALIlY OF ClARINGTON
BY-LAW NUMBER 98-14
being a By-law to authorize an application to be
made to Council as the approving authority under
the Expropriations Act, R.S.O. 1990, c.E.26 for
the approval of the expropriation of certain lands
which comprise Cove Road, the lands required
for the construction and use of the Westside
Creek Bridge and approaches, and certain rights-
of -way in Part 1 on Plan 4OR.17895
WHEREAS at Its meeting on January 12, 1998, Council approved Report Admin-02-98 which
recommended the enactment of this By-law,
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THEMUNlCIPALIlY
OF CLARINGTON ENACTS AS FOLLOWS:
1. THAT Council hereby authorizes an application to be made to the Council of The
Corporation of the Municipality of CIarlngton as the approving authority under
subsection 4(1) of the Expropriations Act, R.S.O. 1990 c.&26, as amended, for the
approval of the expropriation of all interests in the lands more particularly descneed
in Schedule "1" attached to and forming part of Ibis By-law and the rights-of-way in
the land descn'bed as Part 1 on Plan 4OR-17895. for the purposes of constructing and
establishing on the aforesaid lands a public highway including a bridge over the
Westside Creek and approaches to such bridge.
2. THAT Council hereby authorize staff to take all necessary actions to serve notice of
its application for approval to expropriate upon each owner of the lands to be
expropriated and to publish the aforesaid notice in accordance with subsection 6(1)
of the Expropriations Act
BY-LAW read a first and second time this 12th day of January, 1998.
BY-LAW read a third time and finally passed this 12th day of January, 1998.
I)Jane Hamre - Mayor
Paw Harne - CierI<
ATfACHMENT 3
OVlNER
1. Orchardscove Holdings Limited
2. Elizabeth Marsden Barrick
3. John Edmund Barrick
4. Gordon Alexander White
5. Gordon Alexander White & Marion Halloway Richardson
6. Gordon Alexander White
7. Mary Lynne Dennis & William James Ammons
8. Marion Faryna .
9. The owners of Lots 1 to 49 and Blocks A to M, Plan 198; Lots 1 to 8 and 11 and Blocks B
and C, Plan 106; Lots 13, 44 and 45-and Block P, Plan 171; and Part of unsubdivided Lot
11, B.F.C. Darlington
SCHEDULE "r
PART ON PIAN LOT OR BLOCK AND PIAN
40R-17895
2 Part Block 'D', Plan 198
5 Part Lot 10, Plan 198
6 Part Lot 11, Plan 198
7 Part Lot 12, Plan 198
8 Part Lot 13, Plan 198
10 Part Lot 12, BFC Darlington
11 Part Block 'I', Plan 318
12 Part Block 'I', Plan 318
RIGHTS-OF.WAY
The Rights-of-Way in Parta 1 and 2 on Plan 4OR-1789S that are in favour of the owners
from time to time of Lots 1 to 49, Blocks A to M and the Beach, Plan 198; Lots 1 to 8 and
11 and Blocks Band C. Plan 106; Lots 13, 44 and 45 and Block P, Plan 171 and Part of
unsubdMdcd Lot 11, B.F.e Darlington.