HomeMy WebLinkAboutPSD-056-09Clarin~gton
Leading the Way
REPORT
PLANNING SERVICES
Meeting: COUNCIL ~PSd,,,~~vnl ~"(,'-3~~-~9
Date: Monday, June 15, 2009
Report #: PSD-056-09 File #: PLN 15.2.1, RE 6.1. 17 By-law #: X14 `f'~Y~
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Subject:. REASONS FOR DECISION OF THE JOINT BOARD UNDER THE
CONSOLIDATED HEARINGS ACT AND THE EXPROPRIATIONS ACT (CASE
NO. 04-164) RESPECTING THE PROPOSED EXPROPRIATION OF CERTAIN
LANDS OWNED BY THE PORT DARLINGTON HARBOUR COMPANY
RECOMMENDATIONS:
It is respectfully recommended to Council the following:
THAT Report PSD-056-09 be received and APPROVED;
2. THAT Council as the approving authority under Section 5(1) of the Expropriations Act
having considered the Reasons for Decision of the Joint Board dated December 12,
2006 under the Consolidated Hearings Act (Case No. 04-164) and for the reason set
out in the Joint Board's Reasons for Decision which as modified for the reasons set out
in Recommendation 3, Council hereby adopts as Council's reasons for its decision to
approve the expropriation modified by including Parts 2 and 13 on Reference Plan 10R-
3136 with the Lands to be expropriated;
3. THAT with respect to Parts 2 and 13 on Reference Plan 10R-3136, Council decide to
include them in the Lands proposed to be expropriated for the reasons that the Parcel
Registers for those Parts in the Land Registry Office for the Land Titles Division of
Durham (No. 40) have not yet been rectified to show the Municipality of Clarington and
not The Port Darlington Harbour Company to be the registered owner in fee simple of
them;
4. THAT Council PASS a By-law to approve the proposed expropriation of the Lands
including Parts 2 and 13 on Reference Plan 10R-3136 (Attachment 5) which Lands are
more particularly described in Attachment 2 for the purposes of a district park;
REPORT NO.: PSD-056-09
PAGE 2
5. THAT Council approve the Notice of Decision and Reasons for Decision of Council
contained in Attachment 7 approving the proposed expropriation of the Lands including
Parts 2 and 13 on Reference Plan 10R-3136 for the purposes of a district park and
authorize the Municipal Clerk to serve a copy of them on all parties as required by
section 8(2) of the Expropriations Act;
6. THAT Council pass a by-law to authorize the Mayor and the Municipal Clerk to execute
a Certificate of Approval on behalf of Council as the approval authority as is required by
section 8(3) of the Expropriations Act (Attachment 6);
7. THAT Council PASS a By-law to expropriate the Lands including Parts 2 and 13 on
Reference Plan 10R-3136 for the purposes of a district park pursuant to the Municipal
Act, 2001 (Attachment 8);
THAT Council PASS a By-law to authorize the Mayor and Municipal Clerk on behalf of
the Municipality to execute a plan of expropriation of the Lands and cause the plan to be
registered in the proper Land Registry Office pursuant to Section 9(1) of the
Expropriations Act (Attachment 9);
9. THAT Staff be authorized to give all necessary notices, and to take all necessary
actions to terminate the leases of the tenants after registration of the plan of
expropriation; and
10. THAT all interested parties be notified of Council's decision.
Submitted by:
Davi ome, MCIP, RPP
Director of Planning Services
Reviewed by: ~ f -" -- ~'v'~' ~L.
Franklin Wu,
Chief Administrative Officer
FL/DJC/df
9 June 2009
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T (905)623-3379 F (905)623-0830
REPORT NO.: PSD-056-09 PAGE 3
1.0 PREFACE
1.1 -This report was initially written on January 2007 in response to the decision in
December 2006 of the Joint Board under the Consolidated Hearings Act. The report
was not presented to Council at that time because Wiggers Custom Yachts Ltd and the
Port Darlington Harbour Company, in response to the decision of the Joint Board under
the Consolidated Hearings Act, petitioned Cabinet to set aside or alter the decision of
the Joint Board. The Petition had the effect of suspending the Joint Board's decision
until Cabinet addressed the issue. Cabinet has upheld the decision of the Joint Board,
as such the timing of the Council's decision now falls under the Expropriations Act.
Council must deal with the report of the Joint Board approving the proposed
expropriation within 90 days of the date on which it became final. The latter day, in the
Municipal Solicitor's opinion, was March 25, 2009 the date of the Order in Council by
Cabinet dismissing the Petition.
1.2 As Council is aware, during the intervening time, January 2007 to September 2007
there had been negotiations in an attempt to resolve the outstanding issues and reach
an amicable resolution to the property acquisition. Discussions were terminated in
September 2007 and for a number of months the Municipality has been awaiting the
decision of Cabinet. For Council to address this Staff Report the tabling of a motion
from the closed meeting of the Council on September 24, 2007 must be lifted and
addressed under the "Unfinished Business" portion of the meeting.
2.0 BACKGROUND
2.1 Report #PSD-124-04 (Attachment 1) dealt with the proposed acquisition by the
Municipality of certain lands the registered owner of which is The Port Darlington
Harbour Company ("PDHC"). These lands are adjacent to West Beach Road,
Bowmanville and include the West Beach of the Bowmanville Creek. The lands
comprise portions that are Provincially Significant Wetland, tableland, sand dunes and a
dynamic sandy beach. The lands in question together with certain lands owned by the
Municipality are outlined on the Map contained in Attachment 2. The lands owned by
the Municipality comprise Lots 3, 4, 20, 33 and 35 and the streets shown on registered
plan of subdivision 345. The Joint Board found that Parts 2 and 13 on Reference Plan
10R-3136 comprise dedicated public highways, although the Parcel Registers for them
in the Land Registry Office currently show the registered owner in fee simple of them to
be PDHC. The Lands shown on the map contained in Attachment 2 which are
proposed to be expropriated comprise lands the registered owner of which is The .Port
Darlington Harbour Company and include Parts 2 and 13 on Reference Plan 10R-3136.
They are more particularly described in Attachment 3 and are referred to in this Report
as the "Lands".
REPORT NO.: PSD-056-09
PAGE 4
2.2 At its meeting on October 12, 2004, Council approved the recommendations contained
in Report #PSD-124-04 to authorize the commencement of expropriation proceedings
under the Expropriations Act to expropriate the Lands.
2.3 Following the service of the notice of the Municipality's intention to expropriate the
lands, PDHC and Wiggers Custom Yachts Limited ("Wiggers") notified the Municipality
pursuant to the Expropriations Act that they desired that an inquiry be held as to
whether the taking of the lands is fair, sound and reasonably necessary . in the
achievement of the objectives of the expropriating authority, the Municipality ("Hearing
of Necessity").
2.4 Since PDHC and Wiggers had appealed the approval of Official Plan Amendment No.
39 (which amended the Port Darlington Neighbourhood Secondary Plan) to the Ontario
Municipal Board under section 17 of the Planning Act and had also required a Hearing
of Necessity into the proposed expropriation, the Consolidated Hearings Act applied.
The latter Act required that a Joint Board be established under it to exercise the power
of an Inquiry Officer under the Expropriations Act and the power of the Ontario
Municipal Board under the Planning Act.
2.5 Mr. M.A.F. Stockton, who was then a member of the Ontario Municipal Board, was
appointed under the applicable legislation to act as the Joint Board under the
Consolidated Hearings Act. At the pre-hearing conferences, Mr. Stockton organized the
issues for the hearing into phases. The first phase respecting Official Plan Amendment
39 was heard in November, 2005 and resulted in the approval of Official Plan
Amendment 39 with certain modifications. The last phase comprised the Hearing of
Necessity respecting the proposed expropriation by the Municipality of the Lands. It was
held in September, 2006.
2.6 As is required by the Expropriations Act, the Joint Board heard the evidence concerning
the objectives of the Municipality to be achieved by the proposed expropriation and
whether the proposed expropriation is fair, sound and reasonably necessary in the
achievement of the objectives of the Municipality. The Municipality's witnesses were
Faye Langmaid, Manager of Special Projects; Christopher Ellingwood, Biologist; Perry
Sisson, Engineer Mavis Carlton; the late Philip Carlton and Nicholas Macos, Solicitor.
No witnesses were called by Port Darlington Harbour Company. 114 exhibits in support
of proving the necessity of acquiring the lands were tendered as evidence to the Joint
Board.
2.7 At the conclusion of the hearing of the last phase, the Joint Board reserved its decision.
The Joint Board's Reasons for Decision (Attachment 4) were released on December 12,
2006.
2.8 One of the issues considered by the Joint Board was whether certain streets shown on
registered plan of subdivision 345 and the traveled roads, Parts 2 and 13 on Reference
Plan 10R-3136 were public highways under the Municipal Act, 2001. Title to public
highways that is not vested in either the Province or the Region of Durham, is vested in
the Municipality, and is subject to the right of members of the public to use the public
highways as such.
REPORT NO.: PSD-056-09
PAGE 5
2.9 The streets shown on plan of subdivision 345 had been dedicated as public highways
on the registration of the plan on the title to a portion of the Lands. The Map contained
in Attachment 3 shows the streets on Plan 345 and the traveled roads on Parts 2 and
13 on Reference Plan 10R-3136.
2.10 Part 2 on Reference Plan 10R-3136 links Third Street on plan of subdivision 345 to
West Beach Road on plan of subdivision 150, a dedicated public highway. Part 13
connects Third Street to Main Street both on plan of subdivision 345. Both Parts 2 and
13 are traveled roads in the sense that although they existed physically, whether they.
are private roads or public highways cannot be determined from an examination of the
records in the Land Registry Office but must be determined from other evidence.
2.11 The Land Registry Office records show the Municipality to be the registered owner in
fee simple of the streets on Plan of Subdivision 345, while as noted above, PDHC is
shown to be the registered owner in fee simple of Parts 2 and 13 on Plan 10R-3136.
2.12 In its Reason for Decision the Joint Board accepted the Municipality's contention that it
is the owner of all roadways which comprise the streets on Plan of Subdivision 345 all of
which were dedicated as public highways.
2.13 In addition, the Joint Board found that on the evidence presented to it, Parts 2 and 13
on Reference Plan 10R-3136 had been dedicated by PDHC as public highways and
had been accepted as such by the public. However, the Parcel Registers in the Land
Registry Office have not been rectified to show the Municipality to be the owner of Parts
2 and 13.
2.14 The Municipality also is the registered owner in fee simple of Lots 3, 4, 20, 33 and 35 on
Plan of -Subdivision 345. They had been acquired under applicable legislation as a
result of default in payment of municipal taxes.
2.15 Under section 8(1) of the Expropriations Act, the approving authority, the Council is
required to consider the report of the Joint Board and approve, not approve, or approve
with one or more modifications, that the Municipality considers proper. Under section
8(2) of the Act, the Municipality is required to give written reasons for its decision and to
cause the decision and reasons for it to be served on all the parties and on the Joint
Board within 90 days after the date on which the Municipality received the- report of the
Joint Board.
2.16 Section 9 of the Expropriations Act requires that the expropriating authority, in this case
also the Municipality, within. 3 months after the granting of approval register in the land
registry office a plan of expropriation. On the registration of the plan, within the 3
months period, but not otherwise, title to the expropriated land vests in the Municipality.
REPORT NO.: PSD-056-09
3.0 COMMENTS AND RECOMMENDATIONS
PAGE 6
3.1 In its Reasons for Decision the Joint Board fairly summarized the evidence and correctly
made findings of fact based on that evidence. At page 5 of its Reasons for Decision, the
Joint Board stated:
"In accordance with its findings above with respect to the key jurisdiction, and
the evidence of the planning and environmental witnesses from the Town, the
Joint Board finds that the proposed expropriation is fair, sound and
reasonable." .
3.2 It is recommended that Council, as the approving authority under subsection 5(1) of the
Expropriations Act, having considered the Reasons for Decision of the Joint Board
adopt them as Council's own reasons for approving the expropriation with one
modification. The Joint Board had found that Parts 2 and 13 on Reference Plan 10R-
3136 and the streets shown on plan of subdivision 345 should not be included in the
expropriation since they are owned by the Municipality. It is recommended that Council
approve the proposed expropriation of the Lands including Parts 2 and 13 on Reference
Plan 10R-3136 for the reason set out below. It is also recommended that Council pass a
by-law (Attachment 5) under the Expropriations Act to approve the proposed
expropriation of the Lands including Parts 2 and 13 on Reference Plan 10R-3136 for the
purposes of a district park, and that the a by-law be passed to authorize the Mayor and
Municipal Clerk execute the Certificate of Approval as required by the Act (Attachment
6).
3.3 On Page 7 of its Reasons for Decision, the Joint Board stated:
"In the Joint Board's view, the evidence supports the Town's contention that it
already has ownership of all roadways on the subject Lands. For all of these
reasons, therefore, the Joint Board finds that the roadways are not the
property of PDHC and should neither be included in the expropriation nor
compensated for."
Since the Parcel Register in the Land Registry Office has not yet been rectified to show
that the Municipality and not PDHC to be the owner in fee simple of parts 2 and 13 on
Reference Plan 10R-3136, it is recommended that Council include in Council's reasons
for decision a modification of the Joint Board's Reasons for Decision to state that,
Council considers it prudent to include Parts 2 and 13 in the proposed expropriation for
this reason.
3.4 It is recommended that Council authorize the Municipal Clerk to cause the Notice of
Decision and Reasons for Decision of Council approving the proposed expropriation to
be served upon all of the parties as is required by section 8(2) of the Expropriations Act.
A copy of the Notice is contained in Attachment 7.
3.5 It is recommended that Council pass a by-law under the Municipal Act, 2001 to
expropriate the Lands and Parts 2 and 13 on Reference Plan 10R-3136 for the
purposes of a district park (Attachment 8).
REPORT NO.: PSD-056-09
PAGE 7
3.6 It is further recommended that Council pass a by-law to authorize the Mayor and the
Municipal Clerk on behalf of the Municipality to execute a plan of expropriation of the
Lands and Parts 2 and 13 on Reference Plan 10R-3136 and authorize its registration in
the proper land registry office pursuant to section 9(1) of the Expropriations Act.
(Attachment 9)
3.7 If Council approves the proposed expropriation it will be completed by the registration in
the Land Registry office of a plan of the lands which are expropriated. The expropriation
plan must be registered within 3 months after approval to expropriate is given by
Council. Under the Expropriations Act, title is transferred to the Municipality on the
registration of the plan, and the owner's rights are converted by the Act from a right in
the land expropriated to a right to be paid market value compensation and
compensation for any damage resulting from injurious affection and other items of
damages as set out in the Act.
3.8 It should be noted that under the Expropriations Act the Municipality cannot obtain
possession of the land expropriated until notices are served on the registered owner of
the expropriation which require possession of the land expropriated to be given to the
Municipality on a specified date. That date must be at least 3 months after the date of
service of the notice of possession. Before taking possession of the land, section 25(1)
of the Act requires that the expropriating authority 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.
This offer must be served within 3 months of the registration of the plan.
3.9 Under the Expropriations Act the owner is provided the opportunity of determining the
date of Election of date for compensation being either:
(a) where there has been an inquiry, as of the date the notice of hearing was served;
(b) as of the date of the registration of the plan; or
(c) as of the date on which the owner was served with the notice of expropriation.
In this case there has been a lengthy period of time over which the real estate market
has fluctuated and the owner will presumably select the optimum time.
3.10 In this case there are seasonal and full-time tenants; the seasonal tenants (8-10) own
the buildings (cottages) located on the lot leased to them and the full-time tenants (1-2)
have no ownership. The seasonal and full-time tenants will have to be notified of the
change of ownership and given notice of termination of their leases. Seasonal leases
have traditionally been terminated at the end of October each year. In this regard the
Municipality is required to comply with the provisions of the Residential Tenancies Act,
2006. It is recommended that staff be authorized to give all necessary notices, and to
take all necessary actions to terminate the leases and recover possession under
applicable law after registration of the plan of expropriation on the title to the land.
REPORT NO.: PSD-056-09
PAGE 8
3.11 Staff will undertake to meet with the individual seasonal tenants to review the
Municipality's plans and the options available to the seasonal tenancies for future years.
Any decision regarding the continuation of the seasonal tenancy will be the subject of a
further report after Staff have had the opportunity to meet with the land tenants/cottage
owners.
3.12 The Land Acquisition Strategy, as updated and adopted by Council on February 19,
2007 includes recommendations for the acquisition of Waterfront Lands on the
Bowmanville West Beach, including the Port Darlington Harbour Company Lands for the
development of a district park. The recommendations within the Land Acquisition
Strategy are implementing the policies of the Clarington Official Plan and earlier
Waterfront Land Use Strategy. Special funding was set aside in the General Municipal
Purposes Reserve Fund for waterfront acquisition.
Attachments:
Attachment 1 - Report #PSD-124-04
Attachment 2 - Map
Attachment 3 - Description of Lands including Parts 2 and 13 on Plan 10R-3136
Attachment 4 - Reasons for Decision of the Joint Board dated December 12, 2006
Attachment 5 - By-law to approve expropriation under Expropriations Act and to authorize
execution of Certificate of Approval of Expropriation
Attachment 6 - By-law to authorize execution of Certificate of Approval of Expropriation
Attachment 7 - Notice of Decision and Reasons for Decision of Council
Attachment 8 - By-law to expropriate Lands for a district park under the Municipal Act, 2001
Attachment 9 - By-law to authorize execution and registration on title of expropriation plan
List of interested parties to be advised of Council's decision:
Christopher Williams
Andre Wiggers
Mavis Carlton
Port Darlington Community Association (c/o Glenda Geis)
Bowmanville West Beach Association (c/o Gary Cole, Sharon Eccles, Ted Bounsall, Ross
Smith)
' Attachment 1
To Report PSD-056-09
~`
Leadmgthe Way
PLANNING SERVICES
CONFIDENTIAL
Meeting: COUNCIL
Date: Tuesday, October 12, 2004
Report #: PSD-124-04 File #: RE 6.1.17 By-law #:
Subject: APPLiCATiON FOR APPROVAL OF EXPROPRIATION OF LElNDS
NECESSARY FOR THE PURPOSES OF AbISTRICT PARK
WEST BEACH ROAD PROPERTIES OF PORT DARLINGTON HARBOUR
COMPANY, BOWMANVILLE
RECOMMENDATIONS:
It is respectfully recomnended to Council the following:
1. THAT Report PSD-124-04 be received in a "CLOSED" meeting;
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 o.E26 as amended, for the
approval of the expropriation of the lands described- as the Port .Darlington Harbour.
Company lands on the west side of Bowmanville Creek, Bowmanville, for the purposes
of a district park;
3. :THAT. Council hereby authorize staff to take all. necessary actions to serve notice of its
application for approval to expropriate upon the owner of the land to be expropriated
and to publish the aforesaid notice in accordance with subsection 6(1) of the
Expropriations Act;
4. _ THAT a By-law to authorize an application for expropriation be fonaarded to Council for
adoption at such tine as a survey is prepared fcr the Eands identefed in P.ttachnent 1;
b. THAT a copy of Council's resolution be forrarded to the Municipal Solicitor, ar?d he he
instructed to contact the property owners and anyone else that has an interest in the
property.
/~I~i- s /~//7f. A~ -
Submitted by:
Reviewed by:
f'r~nklin Wu,
Chief Administrative Officer
FL/DJC/df
5 October 2004
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
REPORT NO.: PSD-124-04 PAGE 2 -
1.0 B~iCKGROUND
1.1 .The Clarington Official Plan and the Municipality's Land Acquisition Strategy identify a
District Park site in the vicinity of West Beach Road at the mouth of Bowmanville Creek
and along the Lake Ontario waterfront in Bowmanville. Over a number of years the
Municipality has been actively, acquiring properties on East Beach Road and West;
Beach Road which are considered necessaryfor the park's development. The priorities
for acquisition are based on the Council approved Waterfront Acquisition Strategy of
2002, as amended by Council approval of report PSD-093-04. Attachment 1 identifies
the lands currently owned, or subject to a binding agreement of sale to the Municipality,
properties iri the expropriation process iand the property proposed for acquisition in this
report.
1.2 The property is partial zoned "Residential Shoreline (RS)" in the former Tawn of
Newcastle Comprehensive Zoning By-law 84-63, as amended. The RS zone permits a
single detached dwelling unit. The remainder of the property is zoned "Environmental.
Protection (EP)".
1.3 The West Beach Area is a dynamic beach and has been identified as a damage centre
un_-c Daiiii~ytOnSii`Jreiin.°..and.Ciood
-for some time. A recent draft repoR on rile r~i ~
Damage Centre" indicated that, "due to the extreme severity of the hazards (i.2.
potential loss of life) in this. area it is recommended that'CLOCA and the Municipality of
Glarirgton should set their long term acquisition program for this (Vilest Beach Road
- Area] as the number one section within the Port Darlington Flood Damage Centre".
1.4 The Municipality has been in on-going discussions with the Port Darlington .Harbour
Compahy (PDHC) for some years. The desire of the Municipality to obtain the PDHC
lands has not vraivered; however, due to the turnover in the Director's of the PDHC
whenever the negotiations were close to a conclusion sign-off from all of PDHC was not
forthcoming. In early 1995, a series of negotiations spanning over 2 years, it appeared
that a deal for the properties west. of Bowmanville Creek was nearing completion, with a
:.purchase price of $600,000 for vacant possession and an environmental audit being
provides that stated that the site was clear of contamination, however, the
representative forlhe PDHC changed and the deal was not consummated.
1.5 The CAO has had numerous discussions with Mr. Andy Wiggers; .the current
representative of the Port Darlington Harbour Company and owner of Wiggers .Custom
Yachts Ltd. While it is the desire of MOC to acquire the Port Darlington Harbour
Company holdings, Mr. Wiggers would prefer a phased in or stepped approach; this
approach would allow Wiggers Custom Yachts Ltd. to continue their viable boat
building, storage and repair business. The ongoing discussions between Mr. Wiggers
and the CAO have not resulted in a mutually satisfactory arrangement for the purchase
of any of the PDHC lands, to date.
1.6 It is the opinion of staff that expropriating the western portion of the PDHC lands would
be the most phident approach at this time. In an appraisal report in August 2004 for the
.Municipality, the lands of the west side of Bowmanville Creek owned by PDHC were..
valued of $700,000, not including the pier projecting into Lake Ontario.
REPORT NO.: PSD-124-04 PAGE 3
2.0 EXPROPRIATION PROCEDURES
2.1 .Council is the approving authority in the case of acquisition of the land by expropriation
for a municipal purpose such as a district park. Section 6 of the Expropriations Act
permits. any owner of land who has been given notice of intention to expropriate to notify
the Municipality that a hearing is required. If the owner submits a request fora hearing
an officer will be appointed by the Attorney General to hold the hearing to'determine
whether the proposed expropriation is fair, sound and reasonably. necessary in the
achievement of the objectives of the expropriating authority ("Hearing of Necessity').
2.2 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 owner's. rights
will be converted from ownership of an interest in the lands in question to a right to be
paid fair market value dompensation for their interests. If compensation, cannot be
agreed to it will be determined through mediation or, if necessary, by arbitration by the
Ontario Municipal Board.
3.0 CONCLUSION
3.1 Staff are recommending that the expropriation process to acquire .the Port Dariington
Harbour Company lands west of Bowmanville Creek begin if we are unable tc negotiate
a settlement with the owners. If a fair market value of the land in .question can be
agreed to, the .expropriation process can be halted and the lahd acquired by the
Municipality by private purchase.
3.2 A by-law for the expropriation will be forthcoming when we have a draft plan of survey
which describes the property to be expropriated.
Attachments:
Attachment 1 -Key map
.interested parties to be advised of CcunciPs c~ecisior:
Mr. Andy Wiggers
Port Darlington Harbour Company
1894 Nash Road
R.R. # 3
Bowmanville, Ontario
l_1 C 3K4
Attachment 1
Proposed Parcel to be .Acquired
Other Lands Subject to .Expropriation
0 Lands. Owned by the Municipality
0 Lands .Subject to Closing RE 6.1
THE CORPORATION OF I~HE MUNICIPALITY OF CLARINGTON
BY-LAW 2004-
being a by-law to authorize an application to be mzde to Council as the
approving authority under the Expropriations Act, R.S.O. 1990, c.E.26 for the
approval of the expropriation of all interests in the lands described as Part of Lots
9 and 10, Broken Front Concession, former Town of Bowmanville, now in the
Municipality of Clarington, Regional Municipality of Durham, more particularly
described as Parts 1, 2, 3, 4, and 5 on draft plan of survey contained in Schedule
1 attached to this by-law, for the purposes of a district park.
WHEREAS at its meeting on Oc[ober 12, 2004, Council approved Report PSD-124-04
which recommended enactment of this By-law;
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY
OF CLARINGTON ENACTS AS FOLLOWS:
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 P,ct R.c n. lggn c,E,2g, as amended, for the
approval of the expropriation of all interests in the (ands described as Part of Lots 9
and 10, Broken Front Concession, former Town of Bowmanville, now in the
Municipality of Clarington, Regional Municipality of Durham, more particularly
described as Parts 1, 2, 3, 4, and 5 on draft plan of survey contained in Schedule 1
atfached to this by-law, for the purposes of a district park.
2. That Council hereby authorize staff to take all necessary actions to serve notice of
its application for approval to expropriate upon the owners of the land to be
expropriated and to publish the aforesaid notice in accordance with subsection 6(1)
of the Expropriations Act.
BY-LAW read. a first time this 1sr day of November 2004
BY-LAW read a second time this 1~~ day of November 2004
BY-LAW read a third time and fnally passed this 15r day of November 2004
John Mutton, Mayor
L. Barrie, Municipal Clerk
SCHEDULE 1
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Attachment 3
ScHEDULE'A' To Report PSD-056-09
DESCRIPTION OF LANDS
INCLUDING PARTS 2 AND 13 ON PLAN 10R-3136
Part of Lot 28, Registered Plan No. 150, Lots 1 and 2, Lots 5 to 10, inclusive, Lots 21 to
32, inclusive, Lot 34, Lots 36 to 42, inclusive, the Reserve West of Main Street and the
Reserve West of Beach Road, all according to Registered Plan No. 345, and Part of
Lots 9 and 10, Broken Front Concession, former Town of Bowmanville, now in the
Municipality of Clarington, Regional Municipality of Durham, all as shown on draft Plan
of Survey prepared by Brown and Coggan, Ontario land Surveyors and on deposit with
the Municipality of Clarington, Planning Services Department, and Parts 2 and 13 on
Reference Plan 10R-3136, shown helow.
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02/21/2006 11:03 4168647404
Feh-20-R006 1lataa Fra-EIIVIf~IVi~ENTAI RE41EY TRIBUNAL
>~rRyrs t~FFFmN yaw Attachment 4
41631U5os T-OY5 P.Oi To Report PSD-056-09
Office of
Consolidated Hearings
~r
Ontario
Case No,: 04-I64
T'he CaR'~aration of the Municlptality of Clarington
Ta, the matter of an application by the Corporation of the Muaicigality of
Clatingtoa, filed oa March 4, 2005, for a Hearing before a Joint Board pursuantto
section 3 of the Consolidated ,FTearl~ga Act, RS.O. 1990, c. C.29, a' amended,
regardin8 a proposal to proceed with an aadertslcirt$, namely the proposed
Official Plan Aroesadmeat 39 to the Muzricipality of Ciatingtoa's Ofheisl Plan as
amended by By-law No. 2005-070 under the PlattxFxg Ac7, R.S.O. 1990, e. P.13,
as amended, and an applications by the Corporation of the Munielpality of
Clatingmn for approval under section 8 of the Faproprfatfoxs Act, RS.~. 1990, c.
E.26, as amended, to expropriate the properties located at 66 Ease Heaeh Road
('Fawn of Bowasaaville), owned by Mr. Glat Ransom, attfl Part Lots 9 and 10,
Broken Front Conccsslon (Town of Bowmanville), owned by the Port Darlington
Hatbour Company and Wiggers GStstom Ysehts Limited; and
In the matter of a Hearing held on January 17, 2006, is the Council Chambers, the
Ivlutticipatiry of Clarice oq Adaolnustttative Centre, 40 Temperanee Street,
8owmanville. ,
$eiore: M.A.F. Stockton, panel Chair
AFpe»ras> ces:
D.C. FIefferon - Counsel for the proponent, the Corporation of the Municipa]ity of
Clatingtorz
C_J. Williams - Counsel far Wiggers Custom Yaehte Limited amd Port Darlington
Harbow Company
S. Herji - Counsel for Glen hansom
Armted this 20t° day of February, 20U6.
Office of Consolidated Hearings Decision: 04-164
The Corporation of the Municipality of Clarington
Reasons for Decision
Background:
This matter is a proceeding under the Consolidated Hearings Act ("CHA"), regazding an
expropriation by the Municipality of Clarington (the "Town") under the Expropriations Act
("EA'7, and an Appeal of its Official Plan Amendment No. 39 under the Planning Act ("PA").
The expropriation and Official Plan Amendment concern certain lands (the "Lands") at the Lake
Ontario waterfront in the Town. The Town wished to develop the Lands to increase the size of
the adjacent waterfront pazk and for Ire purpose of addressing flooding problems. The Town
also intends to relocate a portion of the waterfront service road on the Lands.
Appeals to the Official Plan Amendment were filed pursuant to section 17(36} of the PA by the
Port Dazlington Hazbow Company ("PDHC") and Wiggers Custom Yachts Limited ("Wiggers")
on February 8, 2005. Glen Ransom also filed an appeal to the Official Plan Amendment
pwsuant to section 17(36} of the PA. Hearings of Necessity were requested pursuant to section 6
of the EA by Mr. Ransom on November 5, 2004 and by the PDHC and Wiggers on
November 10, 2004.
I Notice was given by the Town to the Office of Consolidated Hearings (the "OCH'~ to
consolidate these matters on March 4, 2005. The Joint Boazd adopted the Ontario Municipal
~ Board (OMB) Rules of Practice and Procedure.
} The Joint Board conducted a Preliminary Hearing at Clarington on November 22, 2005, and an
Order of the Joint Board was issued on January 13, 2006 with respect to that Preliminary
~ Hearing.
However, some procedural matters were deferred at the Preliminary Hearing to be resolved
during a teleconference, which took place on December 13, 2005.
The Hearing of this matter commenced on January 17, 2006, at which time the Joint Board was
advised that a settlement of the appeal of Official Plan Amendment 39 to [he Town's Official
Plan had been reached. The Parties filed with the Joint Board Minutes of Settlement and an
amended draft of Official Plan Amendment 39 in accordance with the settlement. The Joint
Board issued its Order with respect to Official Plan Amendment 39, on February 20, 2006.
Office of Consolidated Hearings Decision: 04-164
The Corporation of the Municipality of Clarington
A Preliminary Hearing was scheduled for April 12, 2006, with respect to the Hearings of
Necessity requested pursuant to section 6 of the EA by Mr. Ransom, PDHC and Wiggers. 'The
Joint Board was advised by letter dated March 27, 2006 that Mr. Ransom had withdrawn his
request for a Hearing of Necessity. Tins request was consented to by the other Parties.
Many of the procedural matters with respect to the Hearings of Necessity requested by PDHC
and Wiggers were previously settled by these Parties and the Town. Furthermore, some aspects
of the Issues List were agreed to at the Preliminary Hearing. However, other aspects of the
Issues List remained in dispute, and the Joint Boazd issued an Order on June 13, 2006 (amended
on June 15, 2006) with respect to the Issues List, as well as the scheduling of the Hearing and the
posting of the Notice of the Hearing by the Town.
The Hearing commenced on September 18, 2006.
Issues:
Immediately prior to the Hearing, several issues were resolved by the Parties. This resolution,
however, gave rise to the need for an initial ruling by the Joint Board as to the remaining issues
before it. The issues remaining before the Joint Boazd aze, therefore, as follows:
1. Whether the Town has the jurisdiction pursuant to the Municipal Act, 2001 ("MA") and the
EA to expropriate lands owned by PDHC given the creation of the PDHC pursuant to pre-
Confederation legislation to establish a harbour and related facilities on the Lands.
2. Whether the Town has the jurisdiction pursuant to the MA and the EA to acquire lands used
or intended to be used for the purposes of a hazbour, such being an azea of exclusive federal
jurisdiction.
3. Whether the proposed taking of the Lands is fair, sound and reasonably necessary in the
achievement of the objectives of the Town.
4. Whether the proposed expropriation of the Lands will implement the objectives of the
Town's Official Plan and the Port Darlington Neighbourhood Secondary Plan respecting the
establishment of municipal parks, the protection and enhancement of the natural heritage
system and natural heritage features, and the control of enviren,;,ental protection areas,
hazard lands and the regulatory shoreline area applicable to the Lands.
5. Whether the proposed expropriation of the Lands is consistent with the provisions of the
Provincial Policy Statement {2005) ("PPS") made under section 3 of the PA respecting the
portion of the Lands that has been determined by the Ministry of Natural Resources to be a
Provincially Significant Wetland, and the provisions ofthe PPS respecting natural heritage,
Office of Consolidated Hearings Decision: 04-164
The Corporation of the Municipality of Clarinqton
natural hazards, and hazardous Lands adjacent to the shoreline of Lake Ontario or adjacent to
rivers or streams which aze impacted by flooding hazards and/or erosion hazazds, as they
apply to the Lands.
6. Whether the roadways illustrated on Plan 345-1433 are owned by PDHC or the Town;
whether they aze subject to the proposed expropriation, and if not, whether they should be.
Decision
1. Issues 1 and 2 -Jurisdiction
PDHC and Wiggers ca!!ed no evidence at the Hearing, relying instead on the direct examinaticn
and cross-examination of the Town's witnesses and submissions of Counsel.
It is a matter of record that PDHC was incorporated by an act of the Legislaiive Assembly of
Upper Canada on March 4, 1837. Under that legislation, the PDHC was empowered to construct
and operate a harbour and build all necessary "moles, piers, wharfs, buildings, and erections
whatsoever" on the subject lands. An 1840 amendment to the legislation extended the
geographic limits of the Port Darlington Hazbour, and gave the PDHC the power to charge fees
and tolls.
PDHC argues that the enabling 1837 statute is carried forward, under section 129 of the British
lJorth America Act ("BNA Act"), in the nature of a special statute creating harbour lands at the
mouth of Bowmanville Creek. As a principle of statutory interpretation, where a conflict arises
between a special statute and legislation of general application (such as the EA}, then the
provisions of the special legislation apply. Furthermore, it is the position of PDHC and Wiggers
that all of these lands are harbour lands, and fall under federal jurisdiction by virtue of section
91(10) of the BNA Act. This section provides that Parliament has exclusive jurisdiction over
shipping and navigation. Accordingly, it is submitted, the EA, the MA and the PA, as provincial
statutes, have no application to these Lands.
There is no doubt from the evidence that such a harbour was constructed on the east side of
Bowmanville Creek, and that dredging operations, boat maintenance and storage operated f*on:
those facilities. Less clear is whether such operations extended to the west side, now known as
the West Beach Lands, and forming part of the land purported to be expropriated. There is some
evidence before the Joint Board [hat a small dock extends into the harbour from the west side,
and that in recent years there has been some storage of moulds and boat masts on the West Beach
Lands. However, [here is no evidence before the Joint Board as [o how long these items or
4
Office of Consolidated Hearings Decision: 04-164
The Corporation of the Municipality of Ciarington
facilities have been in place, or indeed, who constructed them. PDHC and Wiggers attempted to
establish that dredging operations took place on the West Beach Lands, and introduced evidence
of some intention to develop harbour facilities and associated uses on the West Beach Lands. In
the view of the Joint Board, this evidence is speculative at best, and the Joint Board is, therefore,
unable to find that PDHC's harbour facilities extend or have ever extended to the West Beach
Lands.
This finding is significant. It is the position of the Town that the 1837 legislation is permissive
only, in that it does not require that the PDHC establish harbour facilities. Thus, since these
-I lands have never been used as hazbour facilities, the federal government has never exercised its
authority under the navigation and shipping power under section 9] (10) of the BNA Act, nor is
the PDHC a port authority under the Canada Marine Act, S.C. 1998. The Joint Bcard agrees
with the Town's position.
Furthermore it is the position of the Town that to the extent that the Fri, the MA, the PA, the
Environmental Protection Act, and the Conservation Authorities Act conflict with the 1837
enabling statute, the latter must be considered to have been amended or repealed by special
exception. The Town refers to the case of Re Ottawa Senators Hockey Club Corp. (2003) 68
O.R. (3d} 603. Again, the Joint Boad accepts the Town's position.
In conclusion, the Joint Board finds that the Town has the jurisdiction to act under the EA with
respect to the Lands.
2. Issue 3 -Fair Sound and Reasonable
The Joint Boazd heazd evidence from Faye Langmaid, the Town's planner; Christopher Ellwood,
a biologist with Niblett Environmental Associates Inc.; and Perry Sisson, the Director of
Engineering and Field Operations with the Central Lake Ontario Conservation Authority. The
Joint Board heard evidence of the natural heritage features of the Lands, and the plans of the
Town to develop a passive, waterside pazk. PDHC and Wiggers called no direct evidence of
their own, relying instead on the cross-examination of the Town's witnesses. In accordance with
its finding above with respect to the key jurisdiction issue, and the evidence of the planning and
enviromnentai witnesses for the Town, the Joint Board finds that the proposed expropration is
Cair, sound and reasonable.
[n coming to this conclusion, the Joint Board makes no comment on the most appropriate use of
the property, nor should this Decision be construed as a specific finding as to the highest and best
use of the property for valuation purposes.
Office of Consolidated Hearings Decision: 04-164
The Corporation of the Municipality of Clarington
3. Issues 4 and 5 -the PPS and the Official Plans
It is the position of PDHC that the proposed use of the Lands by the Town is consistent with the
PPS and conforms with the Town's Official Plan. However, it takes this position without
prejudice to its position that other proposed uses might also be consistent with and conform to
these planning documents.
Based on the uncontradicted evidence before it, the Joint Board finds that the proposed
expropriation by the Town, and the uses intended by it, aze consistent with the PPS, and further
' ' that the expropriation and intended uses conform to and will implement the Town's Official Plan
,,l and the Port Dazlington Neighbourhood Secondary Plan.
The Joint Boazd specifically makes no finding with respect to other uses, which may be intended.
4. Issue 6 - Roadways
There aze two categories of roadways at issue before the Joint Boazd.
The first comprises the roadways shown on Registered Plan 345-1933. This plan was registered
in 1933, but no lots were ever sold. This plan was subsequently deemed not to be a registered
plan of subdivision for the purposes of the PA in 1977. The plan contains a certificate of PDHC
that it had laid out roads and that these roads were dedicated as public highways. The plan also
contains the consent of the former Town of Bowmanville. Until 1970, the Registry Ac! provided,
in section 91(I), that the plan would not be binding on the person registering it unless a sale had
been made according to the plan, and an order had been made by the Court on application by the
person in question.
In 1975, PDHC, in an action against Forest Arthur Dining, sought and obtained a declazation
from the Court that it was the owner of Lot 21, Plan 345-1933. It is the position of the Town that
section 9t (1) required a Court order to render the plan non-binding, and that such an order was
never obtained. Furthermore, the action by PDHC against Dining amounted to an
acknowledgment that Plan 345-1933 was binding. The Joint Boazd agrees with the reasoning of
the Town. In the Joint Board's view, Plan 345-1933 remained a valid plan of subdivision
throughout all relevant periods, until the amendment of the Registry Act in 1970. The deeming
of the plan as not being a registered plan of subdivision is for PA purposes only.
The second category comprises the extension of these roadways, which are now shown as Parts 2
and 13 on Reference Plan l OR-3136. Part 2 links the roadways on Plan 345-1933 to the present-
daydedicated roadways to the west of the West Beach Lands. The registered owner of Parts 2
6
Office of Consolidated Hearings Decision: 04-164
The Corporation of the Municipality of Clarington
and 13 is PDHC. The Joint Boazd heazd evidence from Mavis Carlton and Philip Cazlton, two
local residents, that these roads had been used over the years as public thoroughfares. No
evidence to the contrary was called by PDHC and Wiggers. It is the position of the Town that
this evidence is sufficient to establish that these roadways have been dedicated as public
. highways. Furthermore, the Town azgues that Plan 345-1933 would not have been approved by
the OMB in 1933 if there had not been evidence of access to the roads to the west over Part 2.
Again, the Joint Boazd agrees with the Town's position.
In the Joint Board's view, the evidence supports the Town's contention that it aheady has
ownership of all roadways on the subject lands. For all of these reasons, therefore, the Joint
Board finds that the roadways are not the property of PDHC, and should neither be included in
the expropriation nor cor„pensated tor.
Application for Expropriation Granted
"M. A. F Stockton"
M. A. F. Stockton, Panel Chair
Appendix A -List of Parties
Appendix B -Witness List
Appendix C -Exhibit List
Office of Consolidated Hearings Decision: 04-164
The Corporation of the Municipality of Clarington
Appendix A
List of Parties
Proponent The Corporation of the Municipality of Clarington
Counsel for the Proponent: Dennis C. Hefferon
Dennis Hefferon Law
Royal Bank Plaza, South Tower
200 Bay Street, Suite 2600
P.O. Box 185
Toronto, ON MSJ 2J4
Parties: Wiggers Custom Yachts Limited and
Port Daztington Harbour Company
Counsel for the Parties: Christopher J. Williams
Aird & Berlis LLP
BCE Place, Suite 1800
Sox 754, 181 Bay Street
Toronto, ON MSJ 2T9
8
Office of Consolidated Hearings Decision: p4-~gq
The Corporation of the Municipality of Clarington
Appendix B
Witness List
For the Proponent: Faye Langmaid
Christopher Ellwood
Perry Sisson
Mavis Cazlton
Philip Carlton
Nicolas Macos
9
Office of Consolidated Hearings Decision: 04-164
The Corporation of the Municipality of Clarington
Appendix C
Exhibit List
1. Outlines of evidence to be called
2. Witness Statements
3. A, B, C: Document Books
4. Certified Copy of resolution
5. Photographs
6. Map "D" of Official Plan
__ 7. Water Depths
8. Bowmanville-Westside Mazsh Conservation Area
9. Letter, Dept. Fisheries & Oceans
10. Correspondence -Sep. 17/90
~ 11. Correspondence -Jun 9/92
12. Notice of Hearing
13. Photograph
I4. Background Report
' I5. Implementation Strategy
I6. Appraisal Excerpts
17. CLOCA Map -flood damage
18. Correspondence -Sep. 15/OS
19. Niblett Environmental Associates Fig. 3
,~
20. Niblett Environmental Associates Fig. 4
21. Correction letter
.- 22. Environmental Management Plan
23. Photograph
°_
'~ 24. Photograph
25. Witness Notes
26. Letter dated Sep. 14/06
27. Letter dated Sep. 15/06
28. Letter dated Sep. 1506
29. PIN 26646-0064
30. PIN 26646-0066
31. Reference Plan
32. Title Opinion `
33. Title Deed
34. Title material
3S. Letter dated Jan. 8/92
36. Title Opinion
10
Attachment 5
THE CORPORATION OF THE MUNICIPALTIY OF CLARINGTON TO Report PSD-056-09
BY-LAW NO.2009-
being a By-law to approve the expropriation of portions of Part Lots 9 and 10,
Broken Front Concession, former Town of Bowmanville, now in the
Municipality of Clarington, Regional Municipality of Durham by the Council of
the Municipality of Clarington as the approving authority under the
Expropriations Act, and to authorize the Mayor and Municipal Clerk to execute
a Certificate of Approval under the aforesaid Act
WHEREAS the Decision and Order of the Joint Board dated December 12, 2006
approving the Municipality's proposed expropriation of certain lands located on the
westerly shore of the Bowmanville Creek at it mouth on Lake Ontario, was petitioned to
the Lieutenant Governor in Council ("Cabinet") and suspended until the disposition of
the petition by the Cabinet;
AND WHEREAS by Order in Council dated March 25, 2009 Cabinet dismissed the
petition and consequently terminated its suspension of the Joint Board's Decision and
Order;
AND WHEREAS at its meeting on June 15, 2009, the Council of The Corporation of the
Municipality of Clarington considered and adopted the Reasons for Decision of the Joint
Board under the Consolidated Hearings Act dated December 12, 2006 (Case No. 04-164)
with a modifcation as Council's Reasons for its Decision to approve the expropriation of
the lands more particularly described in Schedule 'A' hereto for the purposes of a district
park;
NOW THEREFORE the Council of The Corporation of the Municipality of Clarington
enacts as follows:
1. THAT the Council of The Corporation of the Municipality of Clarington as approving
authority under the Expropriations Act, R.S.O., 199D, c.E.26, as amended, hereby
approves the expropriation by The Corporation of the Municipality of Clarington of
the lands more particularly described in Schedule A attached to and forming part of
this By-law.
2. THAT the Mayor and Clerk are hereby authorized on behalf of the Council of The
Corporation of the Municipality of Clarington to execute a Certificate of Approval of
the expropriation by The Corporation of the Municipality of Clarington of the lands
referred to in paragraph 1.
BY-LAW read a first time this 15th day of June 2009
BY-LAW read a second time this 15h day of June 2009
BY-LAW read a third time and fnally passed this 15~h day of June 2009
Jim Abernethy, Mayor
Patti L. Barrie, Municipal Clerk
SCHEDULE'R'
DESCRIPTION OF LANDS
INCLUDING PARTS 2 AND 13 ON PLAN 10R-3136
Part of Lot 28, Registered Plan No. 150, Lots 1 and 2, Lots 5 to 10, inclusive, Lots 21 to
32, inclusive, Lot 34, Lots 36 to 42, inclusive, the Reserve West of Main Street and the
Reserve West of Beach Road, all according to Registered Plan No. 345, and Part of Lots 9
and 10, Broken Front Concession, former Town of Bowmanville, now in the Municipality of
Clarington, Regional Municipality of Durham, all as shown on draft Plan of Survey
prepared by Brown and Coggan, 2004, Ontario land Surveyors and on deposit with the
Municipality of Clarington, Planning Services Department, and Parts 2 and 13 on
Reference Plan 10R-3136, shown below.
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO.2009-
being a By-law to authorize the Mayor and Municipal Clerk to executed the
Certificate of Approval attached as Schedule B to this By-law
Attachment 6
To Report PSD-056-09
WHEREAS at its meeting on June 15, 2009, the Council of The Corporation of the
Municipality of Clarington approved the expropriation by the Municipality of Clarington of
portions. of Part Lots 9 and 10, Broken Front Concession, former Town of Bowmanville,
now in the Municipality of Clarington, Regional Municipality of Durham more particularly
described in Schedule A hereto.
NOW THEREFORE the Council of The Corporation of the Municipality of Clarington
enacts as follows:
1. THAT the Mayor and Municipal Clerk are hereby authorized on behalf of The
Corporation of the Municipality of Clarington to execute the Certificate of
Approval contained in Schedule B attached to and forming part of this By-law.
BY-LAW read a first time this 15t"
BY-LAW read a second time this 15'"
BY-LAW read a third time and finally passed this
day of June 2009
day of June 20D9
15~' day of June 2009
Jim Abernethy, Mayor
Patti L. Barrie, Municipal Clerk
SCHEDULE 'A'
DESCRIPTION OF LANDS
INCLUDING PARTS 2 AND 13 ON PLAN 10R-3136
Part of Lot 28, Registered Plan No. 150, Lots 1 and 2, Lots 5 to 10, inclusive, Lots 21 to
32, inclusive, Lot 34, Lots 36 to 42, inclusive, the Reserve West of Main Street and the
Reserve West of Beach Road, all according to Registered Plan No. 345, and Part of Lots 9
and 10, Broken Front Concession, former Town of Bowmanville, now in the Municipality of
Clarington, Regional Municipality of Durham, all as shown on draft Plan of Survey
prepared by Brown and Coggan, Ontario land Surveyors and on deposit with the
Municipality of Clarington, Planning Services Department, and Parts 2 and 13 on
Reference Plan 10R-3136, shown below.
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SCHEDULE 'B'
CERTIFICATE OF APPROVAL
IN THE MATTER OF an application by The Corporation of the Municipality of
Clarington for approval to expropriate being a By-law to approve the expropriation of Part
Lots 9 and 10, Broken Front Concession, Former Town of Bowmanville, Now in the
Municipality of Clarington, Regional Municipality of Durham by the Council of the
Municipality of Clarington as the approving authority under the Expropriations Act, and to
authorize the Mayor and Municipal Clerk to execute a Certificate of Approval under the
aforesaid Ad
The Council of The Corporation of the Municipality of Clarington hereby certifies
that approval was given to The Corporation of the Municipality of Clarington on the 29'"
day of January, 2007 to expropriate, for the purposes of a district park, the lands more
particularly described in Schedule A attached to and forming part of this Certificate of
Approval, the registered owner of which is shown in the records of the Land Registry
Office for the Land Titles Division of Durham (No. 40) to be The Port Darlington Harbour
Company being the land described in the application (with modifications).
DATED at Bowmanville, Ontario this 15'" day of June 2009
The Council of The Corporation of the
Municipality of Clarington
Jim Abernethy, Mayor
Patti L. Barrie, Municipal Clerk
Attachment 7
To Report PSD-056-09
NOTICE OF DECISION AND REASONS FOR DECISION
BY THE COUNCIL OF THE CORPORATION OF
THE MUNICIPALITY OF CLARINGTON
IN THE MATTER OF the Expropriations Act, R.S.O. 1990, C.E.26, as amended
AND IN THE MATTER OF AN APPLICATION BY THE CORPORATION OF THE
MUNICIPALTY OF CLARINGTON for approval to expropriate portions of Part Lots 9 and
10, Broken Front Concession, former Town of Bowmanville, now in the Municipality of
Clarington, Regional Municipality of Durham.
TAKE NOTICE THAT at its meeting on June 15, 2009, the Council of The Corporation of
the Municipality of Clarington which is the approving authority under the Expropriations
Act, considered the Reasons for Decision of the Joint Board under the Consolidated
Hearings Act (Case No. 04-164) which were delivered to the Municipality on December 12,
2006, respecting the proposed expropriation by The Corporation of the Municipality of
Clarington of the lands more particularly described in Schedule A hereto for the purposes
of a district park.
In its consideration of the Joint Board's Reasons for Decision, Council noted that the Joint
Board had conducted a hearing in accordance with the Expropriations Act and the
Consolidated Hearings Act. In its Reasons for Decision the Joint Board had summarized
the evidence that was presented by the parties and had correctly made findings of fact
based on the evidence. The Joint Board found that the proposed expropriation for which
approval was sought is fair, sound and reasonably necessary in the achievement of the
objectives of the expropriating authority, The Corporation of the Municipality of Clarington.
Council considers this finding to be consistent with and supported by the evidence
adduced at the hearing. The Joint Board's reasons are adopted as the reasons of The
Corporation of the Municipality of Clarington for approving the expropriation of the
aforesaid lands, with the modification set out below. Although in the Joint Board's opinion,
Parts 2 and 13 on Reference Plan 10R-3136 are roadways owned by the Municipality, the
Parcel Registers in the Land Registry Office currently show the registered owner to be The
Port Darlington Harbour Company, as a matter of prudence, Council decided to modify the
Joint Board's Reasons for Decision before adopting them as its own reasons for decision
by including Parts 2 and 13 on Reference Plan 10R-3136 as lands the expropriation of
which Couricil has approved. For these reasons, the Council of The Corporation of the
Municipality of Clarington as the approving authority under the Expropriations Act, decided
to approve the expropriation by The Corporation of the Municipality of Clarington, as
expropriating authority, of the lands referred to above.
A copy of the Certificate of Approval of the expropriation by the Council of The Corporation
of the Municipality of Clarington authorized by By-law No. 2009-_ passed on January
29, 2007, is enclosed herewith for your information.
DATED at Bowmanville, Ontario this 15~' day of June 2009
The Council of The Corporation of the
Municipality of Clarington, Approving
Authority under the Expropriations Act.
Jim Abernethy,
Patti L. Barrie, Municipal Clerk
SCHEDULE'R'
DESCRIPTION OF LANDS
INCLUDING PARTS 2 AND 13 ON PLAN 10R-3136
Part of Lot 28, Registered Plan No. 150, Lots 1 and 2, Lots 5 to 10, inclusive, Lots 21 to
32, inclusive, Lot 34, Lots 36 to 42, inclusive, the Reserve West of Main Street and the
Reserve West of Beach Road, all according to Registered Plan No. 345, and Part of Lots 9
and 10, Broken Front Concession, former Town of Bowmanville, now in the Municipality of
Clarington, Regional Municipality of Durham, all as shown on draft Plan of Survey
prepared by Brown and Coggan, Ontario land Surveyors and on deposit with the
Municipality of Clarington, Planning Services Department, and Parts 2 and 13 on
Reference Plan 10R-3136, shown below.
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Attachment 8
To Report PSD-056-09
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO.2009-
being a By-law to approve the expropriation of portions of Part Lots 9 and 1D,
Broken Front Concession, former Town of Bowmanville, now in the
Municipality of Clarington, Regional Municipality of Durham pursuant to the
Municipal Act, 2001, S.O. 2001
WHEREAS at its meeting on June 15, 2009, the Council of The Corporation of the
Municipality of Clarington, passed By-law 2009- _ approving the expropriation of the
lahds more particularly described in Schedule A hereto.
NOW THEREFORE the Council of The Corporation of the Municipality of Clarington
enacts as follows:
1. THAT the land more particularly described in Schedule A attached to and forming
part of this By-law the registered owner of which is shown on the Parcel
Registers in the Land Registry Office for the Land Titles Division of Durham (No.
40) to be owned in fee simple by The Port Darlington Harbour Company are
hereby expropriated for the purposes of a district park pursuant to the Municipal
Act, 2001, S.O. 2001, c.25.
BY-LAW read a first time this 15~n
BY-LAW read a second time this 15~'
BY-LAW read a third time and finally passed this
day of June 2009
day of June 2009
15~" day of June 2009
Abernethy, Mayor
Patti L. Barrie, Municipal Clerk
SCHEDULE 'A'
DESCRIPTION OF LANDS
INCLUDING PARTS 2 AND 13 ON PLAN 10R-3136
Part of Lot 28, Registered Plan No. 150, Lots 1 and 2, Lots 5 to 10, inclusive, Lots 21 to
32, inclusive, Lot 34, Lots 36 to 42, inclusive, the Reserve West of Main Street and the
Reserve West of Beach Road, all according to Registered Plan No. 345, and Part of Lots 9
and 10, Broken Front Concession, former Town of Bowmanville, now in the Municipality of
Clarington, Regional Municipality of Durham, all as shown on draft Plan of Survey
prepared by Brown and Coggan, Ontario land Surveyors and on deposit with the
Municipality of Clarington, Planning Services Department, and Parts 2 and 13 on
Reference Plan 10R-3136, shown below.
Attachment 9
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON To Report PSD-056-09
BY-LAW NO. 2009-
being a by-law to authorize the Mayor and Clerk on behalf of the Municipality of
Clarington to execute an expropriation plan of being a By-law to approve the
expropriation of portions of Part Lots 9 and 10, Broken Front Concession,
former Town of Bowmanville, now in the Municipality of Clarington, Regional
Municipality of Durham
WHEREAS at its meeting on June 15, 2009, the Council of The Corporation of the
Municipality of Clarington, approved the recommendations contained in Report #PSD-
056-09, and approved the expropriation of the lands more particularly in Schedule A
hereto;
AND WHEREAS at its meeting on June 15, 2009, Council passed By-law No. 2009-
approving the aforesaid expropriation;
AND WHEREAS at its meeting on June 15, 2009, Council also passed By-law No.
2009-_ pursuant to the Municipal Act, 2001, S.O. 2001, c.25, as amended, to
expropriate the aforesaid lands.
NOW THEREFORE the Council of The Corporation of the Municipality of Clarington
enacts as follows:
1. THAT the Mayor and Municipal Clerk are hereby authorized on behalf of The
Corporation of the Municipality of Clarington to execute a plan of expropriation
showing the lands more particularly described in Schedule A attached to and
forming part of this By-law, the registered owner in fee simple of which is shown
on the Parcel Registers in the Land Registry Office for the Land Titles Division of
Durham (No. 40) to be The Port Darlington Harbour Company.
2. THAT the Mayor and Municipal Clerk are authorized on behalf of The
Corporation of the Municipality of Clarington to cause the aforesaid expropriation
plan to be registered. in the proper land registry office pursuant to section 9(1) of
the Expropriations Act.
BY-LAW read a first this 15`" day of June 2009
BY-LAW read a second time this 15`" day of June 2009
BY-LAW read a third time and finally passed this 15`" day of June 2009
Jim Abernethy, Mayor
Patti L. Barrie, Municipal Clerk
SCHEDULE 'A'
DESCRIPTION OF LANDS
INCLUDING PARTS 2 AND 13 ON PLAN 10R-3136
Part of Lot 28, Registered Plan No. 150, Lots 1 and 2, Lots 5 to 10, inclusive, Lots 21 to
32, inclusive, Lot 34, Lots 36 to 42, inclusive, the Reserve West of Main Street and the
Reserve West of Beach Road, all according to Registered Plan No. 345, and Part of
Lots 9 and 10, Broken Front Concession, former Town of Bowmanville, now in the
Municipality of Clarington, Regional Municipality of Durham, all as shown on draft Plan
of Survey prepared by Brown and Coggan, Ontario land Surveyors and on deposit with
the Municipality of Clarington, Planning Services Department, and Parts 2 and 13 on
Reference Plan 10R-3136, shown below.
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