HomeMy WebLinkAboutPD-294-87DN: 294-87
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TOWN OF NEWCASTLE
REPORT #5
REPORT File # ,~-~~~-~. /~
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By-Law # ~'~~
MEETING:
DATE:
Council
Monday, November 9, 1987
REPORT #: pn®~o1~_R~ FILE #: PT.N 1 1 1L PW B-12-1
SUB.~CT: ROAD ALLOWANCES WITHIN HAMBLEY PLAN OF SUBDIVISION
BOWMANVILLE
OUR FILE: PLN 8.1.1 & WORKS FILE: B-12-1
RECOMMENDATIONS:
It is respectfully recommended to Council the following:
1. THAT Report PD-2g4-87 be received; and
2. THAT the following resolution be adopted by Council:
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"WHEREAS the Council of the Corporation of the Town of Newcastle has
been requested to close and convey certain portions of an unopened road
allowance known as Lord Elgin Street located within Part of Lot 12,
Concession 2, former Town of Bowmanville;
AND WHEREAS said road allowance was originally laid out by the Hambley
Plan filed in the Registry Office for the County of Durham on March 3,
1857;
AND WHEREAS in consideration of the benefit to the municipality of
having this road allowance closed and conveyed to facilitate the
efficient and orderly development of Part Lot 12, Concession 2, former
Town of Bowmanville in accordance with the approved Official Plan for
the Major Urban Area;
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REPORT NO.: PD-294-87 PAGE 2
NOW THEREFORE BE IT RESOLVED that the unopened portion of Lord
Elgin Street located within Part of Lot 12, Concession 2, former
Town of Bowmanville, now in the Town of Newcastle, shown as Part 4
on Plan 10R-1866, be closed and conveyed in accordance with Town
Policy and that compensation for said closure and conveyance be
set at all legal and survey fees associated therewith and the
benefit to the Municipality realized through the implementation of
the Town's Official Plan through the efficient use of land and
establishment of a transportation system in accordance therewith
and that Resolution ~kC-591-84 establishing a value of
$14,000./acre for the subject road allowance be rescinded.
BACKGROUND AND COMMENTS:
At the General Purpose and Administration Committee meeting of May 19, 1987, the
Committee considered Staff Report PD-119®87 in respect of certain unopened road
allowances located within Part of Lots 11 and 12, Concession 2, of the former Town
of Bowmanville now in the Bowmanville Major Urban Area. The subject Report
addressed requests for closure and conveyance of certain unopened road allowances
affected by proposed Plans of Subdivision 18T-84035 and 18T-86069.
The road in question has never physically been opened by the Municipality and
in addition, the Plan of Subdivision, which originally created these roads,
had been deemed, by By-law 77-47, to no longer be a Plan of Subdivision for the
purposes of the Planning Act.
As a result of discussions with various Solicitors, including the Town's and
Solicitors for the Ministry of Municipal Affairs, Staff concluded that the
road does have legal status as a municipal road allowance and as such, could
only be closed and conveyed in accordance with Town Policy. This Policy
requires that certain procedures be followed; including the necessary
application and payment to the Municipality of appropriate compensation at such
time as any closed road allowances are conveyed. At one point in time, this
compensation had been established as $14,000. per acre.
A submission received from solicitors for one of the adjacent property owners
to the north, suggests that the road allowances within this area vested with
the property owners in view of the fact that they had never been open, monies
had never been expended by the municipality on them, and that the lands have
been occupied and enjoyed by the Owners as their own. It was noted, however,
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REPORT NO.: PD-294-87 PAGE 3
that since June 13, 1922, lands owned by a municipal corporation may not be
claimed through adverse possession, but that for sixty-five (65) years prior to
that date, these road allowances had been occupied by the various property
owners. The suggestion being that adverse possession of these lands was
established prior to 1922 and that this would form a basis for a claim, by the
property owners, against these lands.
Staff would point out that, since these roads were laid out within a registered
plan of subdivision, they would be considered as public roads and, at any point
following the registration of the Plan, could have been developed by the
municipality or the property owner in accordance with said registered plan. We
therefore, do not believe that any adverse possession has been realized since,
until the date of the Deeming By-law in 1977, this Plan could have been
developed in accordance with the orginal registration. If there is any merit
in considering the request for closure and conveyance at no cost, outside of
the provisions of the present Road Closing Policy, it would be related to the
fact that closure of this road would facilitate development of new Plans of
Subdivision and new road allowances more appropriate to today's situation and
the intent of the Town's Official Plan.
Staff Report PD®119-87 presented, as an option, the closure of the road
allowances in accordance with Town Policy, save and except, that pursuant to
the intention of Section 317 of the Municipal Act, no compensation be sought
other than survey and legal costs. Staff would note that it appears, from our
review, that the intent of Section 317 of the Municipal Act was to provide,
that where a highway or a road is laid out without compensation in place of an
original road allowance, such as would be done within a Plan of Subdivision,
each property owner abutting said original road allowances is entitled to that
road allowance to the middle line of same. Since the road in question would
ultimately be replaced by new roads and, since those new roads are constructed
at the expense of the land owner, hence no compensation by the municipality
other than the value accrued to the lands abutting such road allowance, it
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REPORT NO.: PD-294-87 PAGE 4
would not seem unreasonable for the Town to consider this option. This section
of road proposed to be closed is bounded by more than one property owner where
it abuts Plan of Subdivision 18T-86069. It is noted, however, that due to the
configuration of these abutting lands, a closure of this portion of Lord Elgin
Street would only benefit Plan 18T-84035. It could, however, be argued that
the abutting property owner of Plan 18T-86069 has an interest in the status of
this road allowance and, in deed, pursuant to Town Policy, must be in agreement
with the proposed closure prior to any recommendation being made by the
Director of Public Works.
The Town's Road Closing Policy is very clear on the procedure to be followed
but, paramount to following this policy, must be determination as to whether or
not the road allowance does, in fact, constitute a municipal road allowance for
which we have jurisdiction and, hence, authority to deal with. As indicated
earlier, Staff have concluded that this is the ease.
In order to maintain the integrity of the Town's Policy and ensure that all
property owners are dealt with equitably, Staff would recommend that closure
and conveyance of this property be proceeded with in accordance with Town
Policy, but that, in consideration of the extent of new roads to be laid out by
the various Plans of Subdivision which greatly exceed the extent of roads to be
closed, no compensation be sought from the applicant for road closure, save
and except, the cost of all legal and survey fees.
It should be noted, however, that by prior resolution of Council, this portion
of the unopened road allowance was considered for closure and conveyance and a
value of $14,000. per acre established. Should Council decide to proceed with
the option outlined above, it is suggested that the previous resolution,
~kGPA-860-84 approved by the General Purpose and Administration Committee on
September 4, 1984 and ratified by Council, Resolution ~~C-591-84, on September
10, 1984 be rescinded. While Staff see some merit in applying this rationale
of land for land, we would point out that, under any other circumstance,
compensation would not be provided to the developer for the laying out of new
road allowances. The only distinguishing factor in this case, is the presence
of an old registered Plan of Subdivision on the lands and the opportunity for
...5
REPORT NO.: PD-294°87 PAGE 5
the Town to encourage implementation of the current Official Plan policies and
the efficient use of land in accordance with those policies.
If Council is satisfied that fulfillment of this objective is sufficient
compensation for closure and conveyance of the road allowances, then Staff
recommend that this option be pursued.
Respectfully submitted,
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T.T. Edwards, M.C.I.P.
Director of Planning
Recommended for presentation
to the Committee
TTE~jip
Attach.
November 4, 1987
Kotseff
strative Officer
MAP TO BE PROVIDED AT COUNCIL