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Home My WebLink AboutPD-287-87DN: 287-87 TOWN OF NEWCASTLE REPORT #4 REPORT File #_ ? .~ ~}. /• Res . # ~` -t~~ ., ~" ~ By-Law # ~=r~`~~= ~~~~ ~,. MEETING: Council DATE: Monday, November 9, 1987 REPORT #: PD-287-87 FILE #~LN. 8.1.1 & PW B-13-2 SUB.ECT: ROAD ALLOWANCES WITHIN HAMBLEY PLAN OF SUBDIVISION BOWMANVILLE OUR FILE: PLN 8.1.1 & WORKS FILE: B-13-2 RECOMMENDATIONS: It is respectfully recommended to Council the following: 1. THAT Report PD-287-87 be received; and 2. THAT the following resolutions be adopted by Council: "WHEREAS the Council of the Corporation of the Town of Newcastle has been requested to close and convey certain portions of unopened road allowances known as Hambley Street and Lord Elgin Street located within Part of Lot 12, Concession 2, former Town of Bowmanville; AND WHEREAS said road allowances were 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 these road allowances closed and conveyed to facilitate the efficient and orderly development of Parts of Lot 11 and 12, Concession 2, former Town of Bowmanville in accordance with the approved Official Plan for the Major Urban Area; NOW THEREFORE BE IT RESOLVED that those unopened portions of Lord Elgin Street and Hambley Street located within Part of Lot 12, Concession 2, former Town of Bowmanville, now in the Town of Newcastle 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 furthermore; ...2 PAGE 2 REPORT NO.: PD-287-87 __- WHEREAS Council has resolved to agree to closure and conveyance of road allowances within proposed plans of subdivision without compensation save and except legal and survey costs, provided said closure proceeds in accordance with the Town's Road Closing By-law; NOW THEREFORE BE IT RESOLVED THAT Staff prepare an appropriate amendment to the Town's Road Closing By-law to formally recognize same as part of the Town's Road Closing Policy. 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 Plan of Subdivision 18T-82037. The roads in question have 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 roads did have legal status as municipal roads allowances 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. A submission received from solicitors of the affected property owners, 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 ...3 REPORT NO.: PD-287-87 PAGE 3 enjoyed by the Owners as their own. It was noted, however, 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 these roads 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 roads 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 ...~ REPORT NO.: PD-287-87 PAGE 4 allowance, it would not seem unreasonable for the Town to consider this option. 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 case. 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 these properties be proceeded with in accordance with Town Policy, but that, in consideration of the extent of new roads to be laid out by the Plan of Subdivision which greatly exceed the extent of roads to be closed, no compensation be sought from the applicants for road closure, save and except, the cost of all legal and survey fees. 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 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 _subm-~~~ed, ~~ ~- ~~,.~~ ,. T.T. Edwards, M.C.I.P. Director of Planning TTE~' jip Attach. November 4, 1987 MAP TO BE PROVIDED AT COUNCIL N Z O N W U Z O U ~I L.COOPER, J. COOPER U2 B. KENNEDY, H. COOPER,W. COOPER O3 QUADRILLIUM CORPORATION ® ~R. ROWE O5 P. ZAKAROW , M. ZAKA ROW ® M. ZAKAROW O7 P. ZAKAROW, M, ZAKAROW ® VELTRI 9c SON LTD. O9 R.BOUMA,G.VANDERGAAST 10 M. CARRUTHERS N Z _O W u Z O U