HomeMy WebLinkAboutWD-50-98 Addendum
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THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
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REPORT
Meeting:
GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
File #-rO<?'-GC
Res. # (j ~ A - {rr;S - Cj'i5
By-Law #
Report #:
NOVEMBER 16, 1998
ADDENDUMi'fl~:REPORT VID-50-98
Date:
Subject:
STATUS OF "THE MAST ROAD"
Recommendations:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Addendum to Report WD-50-98 be received for information; and
2. THAT Mrs. Joan Anderson and Mr. Stapleton be provided with a copy of Addendum to
Report WD-50-98.
REPORT
1.0 ATTACHMENTS
No.1:
Report WD-50-98
2.0 BACKGROUND
Report WD-50-98 was submitted to Council for consideration at its meeting of October 5,
1998. Mrs. Joan Anderson made a delegation to Council regarding Report WD-50-98
wherein she requested answers to certain questions regarding information presented in
the report.
Council passed Resolution C-756-98 as follows:
"THAT Joan Anderson be acknowledged;
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THIS IS PRINTED ON RECYCLED PAPER
REPORT NO.: ADDENDUM TO REPORT WD-50-98
PAGE 2
THAT her comments be referred to staff for the preparation of a report addressing her
specific questions, to be submitted to the General Purpose and Administration
Committee; and
THAT Joan Anderson be advised of Council's decision."
3.0 REVIEW AND COMMENT
3.1 Further to Council's direction, staff reviewed the written submission of Mrs. Anderson's
delegation and identified the various questions relative to Report WD-50-98.
3.1.1 In this report, only the September 4th 1998 Stapleton letter was mentioned. In Resolution
C-677-98 our delegation was not even recognized. Our fact-filled presentation was well
worthy of your scrutiny and yet omitted. There was also no recognition of the petition
brought to Council. In a democracy, which Canada is, it is essential to look at both sides
before coming to a conclusion. This very basic step has been omitted. Why?
Council, at its meeting of September 14, 1998, passed Resolution C-677 -98, as follows:
'THAT the correspondence dated September 4, 1998 from Mr. And Mrs.
Stapleton regarding the travelled road between Lots 11 and 12,
Concession 8, former Township of Clarke known as the "Mast Road", be
received;
THAT the correspondence be referred to the Director of Public Works for
preparation of a report, including the legal opinion previously received on
this matter, to be submitted to the General Purpose and Administration
Committee; and,
THAT Mr. and Mrs. Stapleton and Joan Anderson be advised of Council's
decision"
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REPORT NO.: ADDENDUM TO REPORT WD-50-98
PAGE 3
Report WD-50-98, Section 2.0 Background, refers to both the correspondence from Mr.
Stapleton and the delegation of Joan Anderson to Council as the background information
for this report.
The Public Works Department prepared Report WD-50-98, based on the legal opinion of
the Municipality's Solicitor, Mr. Hefferon, that the "Mast Road" is private property. In
Mr. Hefferon's letter of opinion on file in the Public Works Department, the facts
supporting his opinion are detailed and the applicable case law is stated. The file and
presentation including the petition submitted were thoroughly reviewed during
preparation of the report.
3.1.2 This item has been summarized from Mrs. Anderson's presentation to Council:
Mrs. Anderson stated in her delegation that Bill Stapleton claimed he had performed
maintenance on the road at considerable expense when, in fact, Harland Elliott had
maintained the road up until his heart attack in February, 1997. At that time, Mr.
Stapleton began to maintain the road with equipment given to him by Mr. Elliott and now
he plans to charge an hourly rate for use of the equipment. Mrs. Anderson further
detailed the ongoing maintenance performed by the Municipality including by-law
enforcement issues and owner status of the road based on previous reports and GP A
minutes where this road was considered a municipal road, and therefore public. The
question is, "On what basis does Mr. Hefferon consider this to be a private road when
the Municipality clearly has demonstrated ownership"?
History of the Maintenance of Mast Road:
Until the early 1970's the Municipality ofClarington provided no maintenance to the
Mast Road. Mr. Elliott built a house approximately 400 feet north of Concession Road 7
in 1971. Unauthorized maintenance was performed on the 400 feet of Mast Road to Mr.
Elliott's entrance from approximately 1973 to 1985. Based on the information available
at that time, the Public Works Department considered the Mast Road to be an
unimproved road similar to a forced road. Recommendations to Council in reports prior
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REPORT NO.: ADDENDUM TO REPORT WD-50-98
PAGE 4
to 1985, regarding issues raised by residents on Mast Road, were based on the
assumption that Mast Road was an "unimproved" municipal road.
There were two documented by-law issues which residents requested By-law
enforcement to resolve. Again, based on the assumption that this was an unimproved
road, the Municipality addressed the by-law issues.
In 1985 Mr. Elliott applied for an entrance permit and a building permit to construct a
house north of the house built in the early 1970's. Since approvals for entrance and a
building permit were subject to the applicable zoning and entrance policies and by-laws,
ownership of the Mast Road was crucial to determine if approvals would be granted.
Mr. David Sims, Solicitor, was requested, on behalf of the Municipality, to provide a
legal opinion as to whether Mr. Elliott was entitled to a building permit based on
compliance with the zoning and entrance policies and by-laws. Mr. Sim's opinion, in
summary, states:
"Your former Deputy Director of Public Works for a short period
of time treated the land as a public road and public funds were
expended upon it. However, it appears abundantly clear that from
the correspondence and the acknowledgement from the abutting
owners that there was never any intention by the property owners
to dedicate the property to the Municipality as a public road.
Accordingly, it is my opinion that the 33 foot strip ofland in
question, never became a municipal road and the Municipality has
no further obligations with respect to its maintenance or upkeep".
The Municipality ceased all maintenance operations based on this opinion. Mr. Elliott
was granted an entrance permit and a building permit based on registration of a perpetual
right-of-way. From 1985, private property owners have performed maintenance.
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REPORT NO.: ADDENDUM TO REPORT WD-50-98
PAGE 5
Once again, in 1995, the issue of whether Mast Road was a Public Highway and whether
the Municipality had jurisdiction over it was raised by Mr. and Mrs. Stapleton. The
Municipality's solicitor, Mr. Hefferon, was retained to determine if, in fact, the Mast Road
was a public highway. Mr. Hefferon's opinion is stated in Report WD-50-98, Section 3.0
- Status ofthe Mast Road. Both solicitors, Mr. Hefferon and Mr. Sims, concluded that the
property known as the Mast Road is privately owned. Staff, based on the professional
opinions of Mr. Hefferon and Mr. Sims, that Mast Road is private property, prepared
Report WD-50-98, and respectfully submitted that information to Council.
3.1.3 Why does Common Law not prevail in this case over only one lawyer's opinion?
According to both English and Canadian Law, if a road has been used on a consistent
basis by the public over a period of seven years or more, then the public has the right to
use this road whomever owns it - public or private. This road has been used many more
years than seven, by the public consistently. We feel very strongly that the Municipal
government should act in favour of the Common Good for the Public. Making this road
"Public Access" would fulfill that. Your report was erroneous in stating that we were
concerned with the road ownership, we stated clearly the issue was public access to the
Ganaraska not ownership of the Mast Road.
Firstly, based on the opinions of both Solicitors, this is private property over which the
Municipality has no jurisdiction.
Secondly, it is recognized that the "Public" has used this road to access the Ganaraska.
However, as stated in Mr. Hefferon's letter of opinion, "whether the public through long
use have obtained an easement to make use of portions of the travelled road is a legal
issue which should be left to the private property owners concerned, to resolve, if
necessary, by litigation".
3.1.4 Items # 2-1 and #3 states thatthis road is in Lots 11 and 12. It is apparent from this, that
the Municipality of CIa ring ton does not accept the most recent surveys Plan 10R-3368 in
1989 and Plan 10R-3923 in 1991. Why?
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REPORT NO.: ADDENDUM TO REPORT WD-50-98
PAGE 6
The Municipality does accept the most recent surveys. The Mast Road is in Lot 12,
Concession 8, former Township of Clarke.
3.1.5 This road has been recognized by the public as a public road as long as it has existed.
When Mr. Hefferon was compiling his opinion what other landowners on this road were
consulted besides Bill Stapleton, as he was the newest resident on this road having been
there only four years ? Harland built there in 1971 before being employed by the
Municipality. Jim and Laura Savage bought from Jack Stapleton in 1985, and Nellie
Martin purchased her home in 1989. Were these people consulted? Why not?
Mr. Stapleton raised the issue of the status of Mast Road in 1995. No other property
owners were consulted because no other property owner questioned the status of the Mast
Road. There was no legal obligation to contact abutting property owners in order to
address this single resident's inquiry.
Mrs. Joan Anderson is not an abutting property owner.
3.1.6 When the road in question was in existence and used by the public for 15 years before the
Crown even granted the adjoining lots, how can it not be a public road?
Mr. Hefferon's opinion that Mast Road is not a public highway and that it is privately
owned is supported by facts in his letter of opinion dated March 8, 1995.
4.0 CONCLUSION
The Mast Road is located on private property and the Municipality has no jurisdiction or
responsibility for its maintenance or upkeep.
If, through continued use, the public feel they have a prescriptive right to use Mast Road
to access the Ganaraska Forest, this is a matter to be settled between the property owners
and the users, possibly by litigation.
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R:EPORT NO.: ADDENDUM TO REPORT WD-50-98
PAGE 7
Respectfully submitted,
Reviewed by,
~V~
Stephen A. Vokes, P. Eng.,
Director of Public Works
/A
me Marano, H.B.Sc., A.M.C.T.,
Acting Chief Administrative Officer
JCOISA Vice
26/10/98
Pc: Mr. & Mrs. Bill Stapleton
4352 Concession Road 8
Kendal, ON
LOB lED
Joan Anderson
4398 Concession Road 8
R.R. # I
Kendal, ON
LOA I EO
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THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON .
X~~'X'Jt!f:~~x
,REPORT
Meeting:
COUNCIL
File #
Res. #
By-Law #
Date:
OCTOBER 5,1998
Report #:
\VTI-50-98 File #:
C.08.12.01
Subject:
STATUS OF THE "MAST ROAD"
Recommendations:
. '.
It is respectfully recommended to Council the following:
1. THAT Report WD-50-98 be received for information; and
2. THAT Mr. and Mrs. Stapleton and Joan Anderson be provided with a copy of Report
WD-50-98.
REPORT
1.0 ATTACHMENTS
No.1: Correspondence from Bill and Shirley Stapleton
2.0 BACKGROUND
2.1 The matter of ownership of the property known as "Mast Road" in Lots 11 and 12,
Concession 7, former Clarke Township has been an issue due to the fact that the lands arc
shown on maps and legal documents as a ''travelled road" and there is a history of public
use.
Correspondence dated September 4, 1998 from Bill and Shirley Stapleton (Attachment
No.1) was considered by Coul}cil at its meeting of September 14, 1998. In summary, Mr.
and Mrs. Stapleton claim the property known as Mast Road is privately owned by them.
At the same meeting on September 14, 1998, a delegation by Joan Anderson was heard by
Council expressing concern regarding ownership of the subie~t lands and that the owners
1. )
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....'LlD!:\ ...... .' ATTACHMENT NO.: 1
~"II'I" '<II_.eye".
_.........000..........'.... AI1DENDUM TO REPORT NO.: WD-50-98
REPORT NO.: WD-50-98
PAGE 2
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had recently restricted access and use of the road. She requested that the issue be settled
and that Mast Road be declared a public access road so that all residents may again enjoy
the beauty of nature and freedom to explore the Ganaraska Forest.
Council, at its meeting of September 14, 1998, passed Resolution C-677-98, as follows:
"THAT the correspondence dated September 4, 1998 from Mr. and Mrs.
Bill Stapleton regarding the travelled road between Lots 11 and 12,
Concession 8, former Township of Clarke known as the "Mast Road", be
received;
THAT the correspondence be referred to the Director of Public Works for
preparation of a report, including the legal opinion previously received on
this matter, to be submitted to the General Purpose and Administration
Committee; and
THAT Mr. and Mrs. Stapleton and Joan Anderson be advised of Council's
decision."
3.0 REVIEW AND COMMENT
Status of the "Mast Road"
In 1995, Dennis Hefferon, Solicitor, was requested to provide a legal opinion regarding the
status of the lands knows as "Mast Road". Mr. Hefferon was specifically requested to
examine the question whether the travelled road described as the "Mast Road" in Lots 11
and 12, Concession 8, fonner Township of Clarke is a public highway, title to which is
vested in the Municipality by reason of it having been dedicated as such by the owner of it
at some time in the past and accepted as such by members of the public or by the
Municipality on their behalf.
Mr. Hefferon's opinion, as stated in his response dated March 8, 1995, is as follows: "In
my opinion, for the reasons expressed in detail below, no portion of the travelled road in
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REPORT NO.: WD-SO-98
PAGE 3
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question, whether it is located within Lot 11 or Lot 12, Concession 8, as a matter of law has
been dedicated to the public as a public highway and accepted as such~ either by members
of the public or by the Municipality acting on their behalf. No portion of it is an original
road allowance or is it shown on a registered plan of subdivision. Therefore, in my opinion
all portions of the travelled road in question are located on private property. Portions of the
southerly section appear to be subject to prescriptive easements in favour of certain of the
abutting owners who have constructed houses."
Request for Signs
The subject "Mast Road" is private property, thereforl;! placement of signs would be at the
discretion of the owner.
4.0 CONCLUSION
The Solicitors' opinion clearly states that the subject travelled road known as "Mast Road"
is private property. Therefore, the Municipality has no jurisdiction over the lands. If the
owners in the area still wish to pursue the matter of access over these lands to and from the
Ganaraska Forest, it is suggested that this is a civil matter which should be left to the private
property owners concerned to resolve.
Respectfully submitted,
Reviewed by
~~
Stephen A. Vokes, P. Eng.,
Director of Public Works
. . H. Stockwell,
~ Chier Admiirislrative Officer
JCO*SA V*ce
30/09/98
1 I 0
REPORT NO.: WD-SO-98
PAGE 4
Pc: Mr. & Mrs. Bill Stapleton
4352 Concession Road 8
Kendal, ON
LOB lEO
Joan Anderson
4398 Concession Road 8
R.R. #1
Kendal, ON
LOA lEO
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COUNC 1 L 01 RECTI ON '~"-"'__"''''.___~_..._.,. ._...P.::-J..Q..
Mr. & Mrs. Bill iS~~~. .' . 'nON'
4352 Concession '~~~{8
Kendal, Ontario !L'tff.: 1 . .... --....-.._-~.. ;
'ACKi"lY ~:
( 9 0 5) 9 8 3 - 8 2 2 1 i, . I) "ft- .:. ~ .. _ ... ;
Sept 4, 1998 l&:~ '__ .~:
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Attenti on: Mayor Hamre and Members of Council tt.:2~,~:':'::'"
R~: Joan Anderson and others and Mr. and Mrs. Willi~~it~.. Stapleton .
and the Travell ed Road between Lots 11 and 12 ;-ctmc:e~r'oif~:~~-:-!;l:-~'~'
Clarke, in Clarington 'known as ~he "Mast Road" and also the
forced fire road branching therefrom to the GanaraSka
Clerks Office
Municipality of Clarington
40 Temperance Street
Bowmanville, Ontario
LIC 3A6
. .
In response to a letter we received on Aug 30, 1998 from Joan
Anderson, James and Laura Savage', Marion Hamilton, Nellie Martin,
Joyce Boudreau, Ray and Karen Christopher and a sec6nd letter with
affidavits dated Sept. 1, 1998 from W. Kay Lycett, LLB.,Q.c. we
would like to submit the following:
,-Ie have consul ted the town representatives on numerous occassions
with regard to ownershio and controlled. access to the above
mentioned lands. You will- find documentation in the municipality's
Public Works' Dept. files that, in the opinion of not one but two
of the town solicitors over the years, the property in question is
private and therefore is not a matter for the municipality.
Zxam;lles or letters in reference: 1) 'dated Jul 25, 1988 from David
J.D. Sims to W.A. Evans, Esq. with copies to D. Hamre, D.
Patterson, and H. Elliott 2) dated Mar 14, 1995 to William
Stapleton from Walte~ A. Evans, P. Eng. with copies t6 Mayor D.
Hamre and w. H. stockwell, C.A.O.
With regard to the historic Mast Road. It has over the YE:ars
evolved into a year round creek which Mr. Dennis Hefferon observed
when he did his examination of the above mentioned properties in
1995. With this natural ecological development it has made the old
Mast Road and surrounding area environmentally sensitive which
subsequently has resulted in the Ganaraska Conservation Authority
closing this portion of land. .There are already two designated
accesses to the Gana~aska Forest approximately 1/4 mile from our
property and tbe Ganaraska Conservation Authority has strongly
indicated to us that they are not interested in another. The two
existing designated entrance~ provide. ~mple access for anyone in
this area to enter the Ganaraska Forest without having tb cross our
private p~operty.
12
A'ITACHMENT NO.: 1
REPORT NO.: WD-50-98
. '.
"
. In con'nection to the affidavits submitted stating there has been no
incumbrance on the above stated lands; we have on file a letter
from Barry A. Walters,LLB representing Mr. & Mrs. Harland Elliott
t.o Mr. & Mrs. Gary Martin dated Oct 6, 1992 stating and I quot.e "It
is NOT a public road and my clients have every right t.o stop it up
by means of a gate or such other method as they may choose". This
is a total contradiction 'to the affidavi ts signed by Mr. & Mrs.
Elliott on Aug 26, 1998.
There was some confusion as to the ownership of Part 1 Plan 10R-
3368, however Mr. G. Doug Coggan, Ontario Land Surveyor was able to
clarify the issue in discussions with Merrill Brown and Charles
Riley.
"
Every effort has been made over the years by both the former owners
Mr. & Mrs. Jack stapleton and ourselves to restrict/control who
crossed our property. Very visibl e NO TRESPASSING signs have
always and continue to be posted on the property as well as gates
at bot.h ends of what is referred to as the travel I ed road. We
have, over the years, given permission to select individuals to
crass our property to access the Ganaraska Forest; but .-these sam'2
indi vidual s now seem to think. it's their RIGHT instead of a
privilege to use our property.
We currently have a land use agreement with the Ganaraska
Snowmobile Cl ub, on a year by year basis, for approxima t el y 4
months of the year to use the easterly fork of Part 4 plan lOR-3923
and Part 1 Plan lOR-3368 as part of the groomed snowmobile tra:l
system. This portion of the trail system connects snowmobi:~~s
from Kendal and the surrounding area to the rest of the groomed
trai:s which the other two Ganaraska Conservation Authority
des~_g;-lated accesses are Jl.ot meant for. During t:-,e .snol.]!";'":o}li 1 ~
season we remove our gates for snowmobilers, howeve!." a:-ter tb~
snowmobile season the gates are reinstalled. It should be noted
that the Ganaraska Snowmobile Club assumes all liability for
snowmobilers crossing our property.
In closing we believe, as we've been advised so many times by the
representatives of the Municipality of Clarington, that this is our
pl'ivate pl'operty and the control of who does and does not ha.\l'~
access to it is totally our choice.
~C~l1Y ,
~hirley Stapleton
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