HomeMy WebLinkAboutWD-66-90 Addendum UNFINISHED BUSINESS
TOWN OF NEWCASTLE
� t REPORT File
�� ��,���, ,r �ti #i � )�� �`7 • .�
Res. #
By-Law #
MEETING: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
DATE: JUNE 17 , 1991
REPORT #: WD-66-90 ADDENDUfILE #:
CT. REQUEST FROM BECAS DEVELOPMENTS LIMITED TO OPEN THE ROAD
ALLOWANCE BETWEEN LOTS 18 AND 19, SOUTH OF CONCESSION ROAD 6,
FORMER CLARKE TOWNSHIP (PATTERSON ROAD)
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and
Administration Committee recommend to Council the following:
1. THAT Report WD-66-90 and WD-66-90 ADDENDUM be received;
2 . THAT the request by Becas Developments Limited to open the road
allowance and construct a road to Town of Newcastle standards
between Lots 18 and 19, south of Concession Road 6 , former
Township of Clarke, be approved, in accordance with Town Policy and
subject to the applicant satisfying all conditions of the Town,
financial and otherwise;
3 . THAT the Mayor and Clerk be authorized to execute an agreement
between Becas Developments Limited and the Town of Newcastle to
permit Becas Developments to construct a road on the unopened road
allowance for approximately 484 . 63 m ( 1,590 feet) in accordance
with Town Standards (Attachment No.7) ;
4 . THAT the Town Solicitor be instructed to prepare the agreement and
that the agreement include, but not be restricted to, .the items set
out in Schedule 'A' (Attachment No.6) ;
. . .2
REPORT NO. : WD-66-90 ADDENDUM PAGE 2
5 . THAT the Clerk be directed to take all actions necessary to
publicize and give notice of the proposed by-law to establish and
layout the road allowance between Lots 18 and 19, Concession 5,
former Township of Clarke, south of Concession Road 6 for
approximately 485 m ( 1,590 feet) ; and
6 . THAT the applicant, Mr. Peter Caspari, the applicant's consultant,
G. M. Sernas & Associates Limited, Mr. and Mrs. S. Heggie, Mr. and
Mrs . G. Lengyel and Mr. and Mrs. A. Van Belle be advised of
Council's decision.
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REPORT
1.0 ATTACHMENTS
No. l: Report WD-66-90 dated July 9, 1990
No.2 : Resolutions made at the General Purpose and
Administration Committee at a Regular Meeting held
on July 9, 1990
No. 3: Correspondence dated January 25, 1991, from Dennis
Hefferon
No.4: Correspondence dated May 7, 1991, from Dennis
Hefferon
No.5: Minutes of a Meeting Held on April 3, 1991
No. 6 : Schedule 'A'
No.7 : Cross-section to be Used for the Design of the Road
2.0 BACKGROUND
2 . 1 At a regular meeting held on July 16, 1990, Council passed
Resolution #C-496-90:
"THAT Report WD-66-90 be referred back to staff for
receipt of a legal opinion pertaining to the
financial ramifications to the Town should these
lands change ownership. "
. . . 3
l
REPORT NO. : WD-66-90 ADDENDUM PAGE 3
3.0 REVIEW AND COMMENT
3 . 1 The reply from the solicitor to Resolution #C-496-90 was received
on January 25, 1991 (Attachment No. 3) . Following receipt of the
letter from Mr. Hefferon, a meeting was held on April 3, 1991, with
the owners of property abutting the project and with Mr. B. Kawun,
G. M. Sernas & Associates (See minutes, Attachment No.4) .
3 .2 Discussions held at the meeting on April 3, 1991, indicated that
the following problems still needed resolution:
* TREES: Clause 4
In his letter dated May 7, 1991, Mr. Hefferon advised that the
Town does not have the legal authority to act as the "banker"
for the payment of trees .
I
Clause 4 of Schedule 'A' has been amended to provide that the
monies be paid directly by Becas Developments to Mr. and Mrs.
S. Heggie & to Mr. & Mrs . A. Lengyel.
Also the amount has been revised from $14,000 to $15,729 to
allow for inflation and the G.S.T.
* Installation of an Entrance and Gate Into the Heggie Property
It was agreed that an entrance and a gate shall be constructed
at the Heggie property at a location to be determined by Mr.
Heggie.
* Location of the Centreline of the Road
It was agreed that the centreline of the road will be
constructed on the centreline at the road allowance.
Schedule 'A' has been amended accordingly.
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* AliQnment of the Fences
It was agreed that the fences shall be constructed on the
property line/limit of the road allowance and shall not
deviate from the property line to go around trees, boulders,
etc .
. . .4
REPORT NO. : WD-66-90 ADDENDUM PAGE 4
* Placement of the Wood, Stone and Topsoil
The locations for the placement of the wood from the trees,
the stone from the fence lines and the topsoil was discussed.
Schedule 'A' has been amended to reflect the agreement reached
on the above items .
* Resolution of Council
The concern raised by Council in Resolution #C-496-90 has been
reviewed and reported on by our solicitor (Attachment No. 3 and
No.5) .
My understanding of the concern of the owners of the abutting
properties is that they believe that the applicant intends to
sell the property which he owns and/or develop a business of
selling water from a spring located on his property.
The owners of property abutting the project have suggested
that a clause be included in the agreement that if the
property owned by Mr. Caspari is sold prior to the completion
of the road construction the agreement be considered null and
void.
They have also suggested that a clause be included in the
agreement to prohibit the applicant from developing a business
of selling spring water from a spring located on his property.
I have carefully considered both these issues and based on Mr.
Hefferon's advice, I am not prepared to recommend that a
clause be included in the agreement to deal with the issues
in the manner requested by the owners of the abutting
properties .
* Advance Copy of Report to the General Purpose and
Administration Committee
It was agreed that all interested parties would be provided
with a copy of this report in advance of the meeting of the
Committee.
. . .5
REPORT NO. : WD-66-90 ADDENDUM PAGE 5
All interested parties have been provided with a copy of the
draft of this report to give them an opportunity to provide
input, have been provided with a copy of the final report and
have been advised that if they wish to appear as a delegation
before the General Purpose and Administration Committee they
must advise the Clerk, Patti Barrie, prior to noon, Wednesday,
June 12 .
Respectfully submitted, Recommended for presentation
to the Committee,
------------------------ -- ---- - -----------------
Walter A. Evans, P.Eng. , Lawrence E Kotseff,
Director of Public Works Chief Admi strative Officer
WAE*llv
May 30, 1991
Attachments
pc: G. M. Sernas & Associates Ltd. Mr. & Mrs . G. Lengyel
110 Scotia Court R.R. #1
Unit 41 Kendal, Ontario
Whitby, Ontario LOE 1E0
L1N 8Y7
Attention: B. Kawun Mr. & Mrs . S. Heggie
R. R. #1
Mr. & Mrs . A. Van Belle Kendal, Ontario
R. R. #1 LOE 1E0
Kendal, Ontario
LOE 1E0
Becas Developments Limited
2900 Yonge Street
Suite 902
Toronto, Ontario
M4N 3N8
Attention: P. Caspari
President
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TOWN OF NEWCASTLE
REPORT File
Res. #
By-Law #
MEETING. GENERAL PURPOSE AND ADMINISTRATION COMMITTEE V
DATE: JULY 9, 1990
REPORT #: WD-66-90 FILE #:
SUBJECT: REQUEST FROM BECAS DEVELOPMENTS LIMITED TO OPEN THE ROAD
ALLOWANCE BETWEEN LOTS 18 AND 19, SOUTH OF CONCESSION ROAD 6,
FORMER CLARKE TOWNSHIP (PATTERSON ROAD)
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and
Administration Committee recommend to Council the following:
1. THAT Report WD-66-90 be received;
2 . THAT the request by Becas Developments Limited to open the road
allowance and construct a road to Town of Newcastle standards
between Lots 18 and 19, south of Concession Road 6, former Township
i
of Clarke, be approved, in accordance with Town Policy and subject
to the applicant satisfying all conditions of the Town, financial
and otherwise;
L. 3. THAT the Mayor and Clerk be authorized to execute an agreement
between Becas Developments Limited and the Town of Newcastle to
allow Becas Developments to construct a road on the unopened road
allowance for approximately 484 .63 m ( 1,590 feet) in accordance
with Town Standard Attachment No.5 and the conditions( ) ions set out in i
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Schedule 'A' (Attachment No. 3) ; and
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ATTACHMENT NO, 1
WD-66-90 ADDENDUM
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REPORT NO. : WD-66-90 PAGE 2
4 . THAT Mr. Kelvin Whalen, G. M. Sernas & Associates, Engineering
Consultants for the applicant, Mr. P. Caspari, Mr. & Mrs. Heggie,
Mr. & Mrs . Lengyel and Mr. & Mrs. Van Belle be advised of Council's
decision.
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REPORT
1.0 ATTACHMENTS
No. l Rey Map
No.2A: Report WD-22-89
No.2B: WD-22-89 Addendum
No.3 Schedule 'A'
No.4 : Ontario Provincial Standard 901.01 (Fencing)
No.S : Cross-section To Be Used For the Design of the Road
2 .0 BACKGROUND
2. 1 Becas Developments Limited has attempted to have the subject road
allowance opened since 1967, without success . The applicant wishes
to obtain a building permit to construct a single family residence
on his property which requires that the property has a minimum of
100 feet fronting onto an improved public road. Becas Development:.
is prepared to pay all costs associated with the road construction.
Resolution #GPA-146-89 approved the recommendations. in Report WD-
22-89 (Attachment No.2A) and the Addendum to Report 'WD-22-89
(Attachment No.2B) .
2.2 Recommendation Number 3 stated:
"THAT the request from Becas Developments Limited
to open the road allowance between Lots 18 and 19,
. south of the road allowance between Concessions 5
and 6, former Township of Clarke be approved subject
to Becas Developments Limited entering into an
agreement with the Town, to satisfy all requirements
of the Town, financial and otherwise. "
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REPORT NO. : WD-66-90 PAGE 3
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2 . 3 The applicant has agreed to enter into an agreement with the Town
to build the road to the Town's standards, satisfy all financial
requirements and comply with all legal requirements . The applicant
has further agreed to perform certain works requested by abutting
property owners as part of the contract.
2 .4 There are three abutting property owners on Patterson Road; Mr. &
Mrs. Lengyel, Mr. & Mrs. Van Belle and Mr. & Mrs. Heggie
i
(Attachment No. 1) . All property owners were contacted to determine
their interest or concerns with respect to opening the road
allowance abutting their properties . All abutting owners
originally objected to the opening of the road and expressed
concerns about the effects the opened road would have on their
properties, both financial and otherwise.
2 .5 Meetings were arranged to discuss those concerns with the applicant
at which time the owners submitted certain requests .
Times and Dates of Meetings:
October 20, 1989 - 11:00 a.m. Meeting with Mr. Heggie
November 27, 1989 - 2 :30 p.m. All attended
March 7, 1990 - 2 :00 p.m. Mr. & Mrs. Van Belle (not
available)
Mr. & Mrs. Lengyel
Mr. & Mrs . Heggie
s June 14, 1990 - 2 :00 p.m. Mr. & Mrs . Lengyel
7 :00 p.m. Mr. & Mrs . Heggie
Mr. & Mrs. Van Belle
2 .6 Public Works is not able to recommend that all requests of the
abutting owners be satisfied. However, we have recommended that
E the developer, Mr. Caspari, be responsible to build the road to
the standard set out by the Town and restoration be completed to
a standard the same as if the construction project was being
completed by a contract awarded by the Town. Mr. Caspari has
y agreed to supply and perform certain other works requested by the
abutting property owners .
. . .4
REPORT NO. : WD-66-90 PAGE 4
- I
2.7 Affect of Construction of Road on Taxes
No additional tax assessment will be levied against the Lengyel of
Van Belle properties. However, the Heggies receive reductions
amounting to 50% of the total assessed values due to the fact that
the property does not front onto an improved public road and a
building permit is not available. The property owned by the
Heggies would no longer be eligible for this reduction and
therefore the property would be taxed as property with frontage
onto a year-round maintained road.
3.0 REVIEW AND COMMENT
3. 1 The following items considered in the two meetings held with the
property owners have been summarized. Schedule 'A' (Attachment
No.3) to this report consists of the items agreed to and the items
Public Works feels should be included as part of the contract for
the construction of the road allowance.
1) Costs
The applicant agrees to pay all costs associated with the
construction of the road allowance.
2 ) Portable Washrooms
The applicant will provide for portable washrooms in the
specifications for the contract for the road construction.
3) Disposal of Wood Cleared as a Result of Road Construction
The agreement will require that the wood available from the
removal of the trees adjacent to the abutting properties will
be cut into four foot lengths and be delivered to a location
on the adjacent property satisfactory to the property owners.
4) Removal of Field Stone
Mr. Caspari has agreed that arrangements will be made with the
contractor to remove existing field stone and place it in an
area on the Heggie property to be designated by Mr. Heggie.
. .5
REPORT NO. : WD-66-90 PAGE 5
5) Topsoil
Topsoil not used for ditches will be distributed to adjacent
property owners. The contractor will deposit excess topsoil
on adjacent property owners' land on a location designated by
the owners.
3 .2 The abutting property owners submitted the following requests and
the Director agreed the requests would be dealt with as part of
this report:
1) Replacement of Existing Farm Fence
The existing farm fence is 2-3 metres inside the proposed road
allowance in most areas.
Recommendation:
S It is recommended that Becas Developments Limited replace the
existing fence on both sides of the road allowance with a farm
type fence for the distance of the construction at his
expense. This recommendation is- based on the Town's position
with respect to restoration. If the Town were constructing
the road and there was evidence a fence existed, the fence
would be replaced, on the property line, in accordance with
Ontario Provincial Standard 901.01.
2) Fencing
That Becas Developments construct a fence along the southern
border of Mr. Heggie's property adjoining the Becas property.
Recommendation:
The Public Works Department does not support this request
because it is external to the construction of the road. It
is therefore, recommended that this be dealt with between the
property owners and not included in the agreement with the
Town. At a previous meeting Mr. Caspari agreed to share the
cost of a mutually agreeable farm fence to be established by
legal survey between the properties.
t . . . 6
REPORT NO. : WD-66-90 PAGE 6
3) Entranceway
That Becas Developments construct an entrance to the Heggit
property as part of the road construction contract.
Recommendation:
The Public Works Department does not support this request; it
is felt that this request is not fair.
4 ) Gate Installation
That Becas Developments erect a gate at the proposed entrance
location to Mr. Heggie's property.
Recommendation:
The Public Works Department does not support this request; it
is felt that this request is not fair.
5) Trees
Mr. Lengyel feels that many of the trees on his property will
be killed by the road construction. He also feels that th
construction of the road will result in his losing the benefit
of the many trees which are on the road allowance.
For these reasons, Mr. Lengyel has requested that the
applicant, Becas Developments, be required to supply and have
planted on Mr. Lengyel's property, 100 Austrian Pines .
Mr. Heggie stated that he would want the same for his
property.
After some discussion with Mr. Lengyel, it was agreed that the
agreement with Becas Developments provide that the letter of
credit which the Town will require as part of the agreement,
will include $14,000 to provide for the cost of the trees .
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7 . 7
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REPORT NO. : WD-66-90 PAGE 7
It was also agreed that Mr. Lengyel and Mr. Heggie would make
their own arrangements to have the trees supplied and planted
on their property and submit an invoice to the Town. A copy i
of the invoice from the nursery which supplied and planted the
trees will be provided to the Town and that the Town will pay
the nursery.
i
i
The $14,000 is to be proportioned as follows:
Frontage of the Lengyel property 990 feet
Frontage of the Heggie property 499 feet
TOTAL 1,489 feet
i .
(- Money available for the supply and planting of trees on
the Lengyel property is:
990 x $14,000 = $9,308
1,489 -
1 Money available for the supply and planting of trees on
the Heggie property is:
t' 499 x $14,000 = $4,692
1,489
TOTAL $14,000
:z
` Recommendation:
That the agreement with Becas Developments provide for
$14,000, to be paid out by the Town, to Mr. Lengyel and Mr.
Heggie upon receiving a copy of the invoice from the nursery
for the supply and planting of the trees.
3 .3 The matters of building permits, zoning and future use of Caspari
lands were discussed. Mr. Heggie requested assurance that the
zoning on the Becas property would remain unchanged. The property
owners were advised that all applications for rezoning must be
considered and that no assurance can be given that the use of the
land will not change.
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. . . 8
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REPORT NO. : WD-66-90 PAGE 8
3.4 This report was reviewed with Mr. Caspari's consultant and the
abutting property owners on Thursday, June 14, 1990.
Mr. and Mrs. Lengyel object to the project, in principle, but
indicated their co-operation if the project is approved by Council,
such that the applicant is required to provide for those items
noted in this report and Schedule 'A' .
Mr. and Mrs. Van Belle indicated their co-operation provided there
will be no cost assessed to them.
Mr. and Mrs. Heggie very strongly oppose the construction of the
road and disagree with the recommendations of this report.
4.0 SUMMARY
4. 1 Mr. and Mrs. Lengyel do not support the opening of the road, but
if approval is given by the Town to open the road, the applicant
be required to do those things that are listed on Schedule "A
4.2 Mr. and Mrs. Heggie are opposed to the opening of the road and do
not agree with the recommendations in this report.
4.3 Mr. and Mrs. Van Belle are not opposed to the opening of the road
provided that there will be no costs assessed to them.
4.4 The applicant, through his consultant, Kelvin Whalen, G. M. Sernas
& Associates has advised that he agrees with the recommendations
with the exception of the requirement for the provision of $14,000
for the supply and planting of trees on the Lengyel and Heggie
properties .
5.0 COPY OF REPORT GIVEN TO ALL PARTIES INVOLVED
5 . 1 A copy of this report was forwarded to all interested parties on
June 27, 1990.
. . . 9
.4 9
REPORT NO. : WD-66-90 PAGE 9
6.0 RECOMMENDATIONS
6 . 1 THAT the request by Becas Developments Limited to open the road
allowance and construct a road to Town of Newcastle standards
between Lots 18 and 19, south of Concession Road 6, former Township
of Clarke, be approved, in accordance with Town Policy and subject
to the applicant satisfying all conditions of the Town, financial
and otherwise;
6 .2 THAT the Mayor and Clerk be authorized to execute an agreement
I
between Becas Developments Limited and the Town of Newcastle to
allow Becas Developments to construct a road on the unopened road
allowance for approximately 484. 63 m ( 1,590 feet) in accordance
with Town Standard (Attachment No.S) and the conditions set out in
Schedule 'A' (Attachment No. 3) ; and
6 . 3 THAT Mr. Kelvin Whalen, G. M. Sernas & Associates, Engineering
Consultants for the applicant, Mr. P. Caspari, Mr. & Mrs. Heggie,
Mr. & Mrs . Lengyel and Mr. & Mrs . Van Belle be advised of Council's
decision.
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REPORT NO. : WD-66-90 PAGE 10
Respectfully submitted, Recommended for presentation
to the Committee,
-`--
Walter, A. Evans, P.Eng. , Lawrenc Kotseff,
Director of Public Works Chief A inistrative Officer
JCO*WAE*llv
June 19, 1990
Attachments
G. M Sernas & Associates Ltd. Mr. & Mrs. G. Lengyel
110 Scotia Court R.R. #1
Unit 41 Kendal, Ontario
Whitby, Ontario LOE 1E0
L1N 8Y7
Attention: Mr. K. Whalen Mr. & Mrs. A. Van Belle
R.R. #1
Mr. & Mrs. Heggie Kendal, Ontario
R.R. #1 LOE lE0
Kendal, Ontario
LOE 1E0
Becas Developments Limited
255 DonWay West
Suite 326
Don Mills, Ontario
M3B 3M3
Attention: Mr. Peter Caspari
President
i
TOWN OF NEWCASTLE
REPORT File #
Res. #
E �. By-Law #
MEETING: GENERAL PURPOSE AND ADMINISTRATION MEETING
DATE: JANUARY 23, 1989
REPORT #: J WD-22-89 FILE #:
SECT: REQUEST-FROM BECAS DEVELOPMENTS LIMITED
TO OPEN THE ROAD ALLOWANCE BETWEEN LOT 18 AND 19, SOUTH OF THE
ROAD ALLOWANCE BETWEEN CONCESSION 5 AND 6, FORMER TOWNSHIP OF CLARKE
RECOMMENDATIONS:
It is respectfully recommended that the General. Purpose and
Administration Committee recommend to Council the following:
1. THAT Report WD-22-89 be received; and
2. THAT the request from Becas Developments Limited to open the road
allowance between lots 18 and 19, south of the road allowance between
Concession 5 and 6, former Township of Clarke be approved subject to
Becas Developments Limited entering in an agreement with the Town to
satisfy all requirements of the Town, financial and otherwise; and
3. THAT Mr. R.D. Webster, P. Eng., Manager, G.M. Sernas & Associates Ltd.,
Professional Consulting Engineers, 185 Brock Street North, Whitby, Ontario,
L1N 4H3 be advised of, Council's decision.
REPORT
1.0 ATTACHMENTS
No. 1: Letter dated September 8, 1988 from Mr. R.D. Webster
ATTAC Uff NO.
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. . .2
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LOT 19 LOT I8
CON_ 6 CON 6
CONC. RD. 6
GENE & STEVEN RUDOLF 81
MARIA HEGGIE HARIETTA
LENGYEL BOT
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35-079-15 3-5-079-02 3-5-079-09
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REQUESTED
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OPENING BETTY HEGGIE
3-5-079-01
ALBERT VANBELLE
3-5-081 BECAS DEVELOPMENTS
LTD.
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3-5-079
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c/rlI<IS
September
Corporation of the
Town of Newcastle
Department of Public Works
Scugog Street
Hampton, Ontario
Attention: Mr _ W- A_ [:vans , P_ Eng .
Director of Public Works.
Dear Sir :_
RE_ BECAS DEVELOPMENTS LIMITED
PARCEL E, LOT 18 CONCESSION 5
• TOWNSHIP OF CLARKE
OUR PROJECT NO_ 88141
Further to our site inspection of July 14 , 1988, we hereby request
on behalf of our client, Becas Developments Limited , that the Town
initiate the necessary action in order to open the road allowance
between Lots 18 and 19, south of the road allowance between Concessions
5 and 6 for a distance of approximately 485m ( 1590 feet ) in order
to accommodate access to our Client 's property known as Parcel
Our Client is prepared to complete the necessary engineering and
complete construction to the standards of the Town of Newcastle,
including applicable drainage works, to allow for the issuance
of a single building permit for the construction of a summer residence
on the above noted property.
A reduced copy of the assessment drawings indicating the requested
road allowance opening , is attached for your reference .
We trust that the above is self explanatory and await your response
to our request _
Yours very truly ,
G .M. �cE[09A:5 c ASS,Oc:LATKS [,TD_ _
R_ D`.. Webster ' P _ Eng.-
Manager-•,_...Wh�tby Office'
ff ice
3/ 30
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cc : Becas nev�lo[�menr. [.i:nited , Atrn : .:�� _ �:;,,.,: , ATTACIIJEff NO . T
- I4L-22 -j'i ADDEigDUi`
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page 2
WD-22-89
2.0 BACKGROUND
2.1 On September 8, 1988 a letter from Mr. R.D. Webster was received requesting,
on behalf of Becas Development Limited, approval to open the road allowance
between lots 18 and 19 south of the road allowance between Concessions
5 and 6, former Township of Clarke. (See Attachment No.l)
2.2 The request was discussed with Mr. Webster and it was agreed to defer
dealing with the request until early in 1989.
3.0 REVIEW AND COMMENT
3.1 At the present time, the property owned by Becas Developments Limited
(Refer to sketch attached to letter from Mr. Webster) is land locked and
6 . a building permit cannot be obtained until the road is constructed,
to the Town's standards, from the road allowance between
Concession 5 and 6, southerly to his property.
e
3.2 In his letter, Mr. Webster states that his client is prepared to complete
n;,•-,=ssary engineering, complete construction to the standards of the
'^ T•,,:, • bioiny applicable drainage works, to allow for the insuance of a
.j
bui.ldi.ng permit for the construction of a summer residence on the
above-noted property.
3.3 The planning Department has advised that once the road has been constructed
to the Town's standards, a building permit would be available for a
summer residence.
I
4.0 RECOMMENDATIONS
4.1 It is, therefore, recommended that the request made by Mr. R.D. Webster
on behalf of Becas Developments Limited, to open the road allowance between
lots 18 and 19, south of the road allowance between Concessions 5 and 6,
former Township of Clarke be approved subject to Becas Developments Limited '
satisfying all the requirements of the Town, financial and otherwise.
Respectfully submitted, Recommei.d,: ,� ..jr presentation
_ to t:' Co9-flu ee,
Walter A. Evans, P. Eng. , Lawrence C. �otseff,
Director of Public Works. Chief Administrative Officer.
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TOWN OF NEWCASTLE
T �4•
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REPORT File #
Res_ #
By-Law #
EKING. GENERAL PURPOSE AND ADMINISTRATION MEETING
(ATE: FEBRUARY 6, 1989
EP'ORT #: WD-22-89 ADDENDUM FILE #:
SLJ&ECT; REQUEST FROM BECAS DEVELOPMENTS LIMITED-
TO OPEN THE ROAD ALLOWACCE BETWEEN LOT 18 AND 19, SOUTH OF THE
ROAD ALLOWANCE BETWEEN CONCESSION 5 AND 6, FORMER TOWNSHIP OF CLARKE
l' `ECOMMENDATIONS:
It is respectfully recommended that the General Purpose and
Administration Committee recommend to Council the following:
c-
fi' 1. THAT Report WD-22-89 ADDENDUM be received; and
2. THAT Report WD-22-89 be lifted from the table and approved.
REPORT
1.0 BACKGROUND
1.1 At a meeting of the General Purpose and Administration Committee held
' on January 23, 1989, Report WD-22-89 was tabled to permit the addition
of a plan showing the location of the proposed road opening.
2.0 . REVIEW AND COMMENT
2.1 Attached to this report is Attachment No_1 which shows the location of
the proposed road opening and Attachment No.2 which shows the property
ownerships adjacent to the proposed road opening.
ATTACRuir w, 2B . . .2
VID-66-90
Page 2
WD-22-89 ADDENDUM
3.0 RECOMMENDATION
3.1 It is recommended that WD-22-89 be lifted from the table and approved.
Respectfully submitted, Recommended for presentation
to the Committee,
Walter A. Evans, P. Eng. , Lawrence E. Kotseff,
Director of Public Works. Chief Administrative Officer.
:llv
January 31, 1989
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SCHEDULE 'A'
1. COSTS
The applicant agrees to pay all costs associated with the
construction of the road.
2. PORTABLE WASHROOMS
The applicant will make provision in the contract for the
contractor to provide portable washrooms for construction
personnel.
3. WOOD FROM TREES
The applicant will make provision in the contract that the
contractor will supply wood cut from the road allowance to the
abutting property owners. The wood is to be cut in four foot (4
feet) lengths and delivered to a specified location satisfactory
to the property owners. The wood is to be divided in equal
portions- to those property owners who request it.
4. PLANTING OF TREES
That Becas Developments provide $14,000 for the planting of trees
on the Lengyel and on the Heggie properties. These funds will be
held by the Town and will be paid to Mr. Lengyel and Mr. Heggie
upon receipt of an invoice from a nursery or other supplier for the
supply and planting of the trees on the property.
These funds are to be distributed in the amount of a maximum of
$9,308 to Mr. and Mrs. Lengyel and a maximum of $4,692 to Mr. and
Mrs. Heggie.
5. TOPSOIL
Topsoil not used for ditches will be distributed to adjacent
I_ property owners. The contractor will deposit excess topsoil on
adjacent property owners' land on a location designated by the
owners.
6. STABILIZATION OF LAND
Agreement specifies seed where possible. Sod will be used if
erosion is considered a problem.
t ` 7. FENCING
The applicant will make provision to have a farm type fence erected
in accordance with the Ontario Provincial Standard 901.01 on both
i sides of the road for the distance of the construction.
8. STONE
The applicant will make provision in the contract to have field
stone delivered to a specified location satisfactory to Mr. Heggie.
i
ATTANUff NO, 3
VID-66-90
i
3,50m brace panel — Standard post spacing 3.50m brace panel �-- Gate opening~{
Form entrance.
(Note I') ooden or I 4.90m walk
I Brace rw Steel Brace Gat4 gote I.iom
!Terminal post post lin e post post post-
- t
177,�77I7777777//711111 i 11,,,,.,.�,,,,,.,, ............. ...
I I I I E c l j I 100 x IOOmm x Ground
Diagonal brace wire _ l l 3.70 m wood brace. I I E e line
(Four 3.5 mm wire I I E E I I 420 l 1 1 E I I
strands twisted in I I E Lu - 1
tension ), Typical u� Li U
u
Nole 2 ioox IOOrnmx3.70m FENCE DETAILS
T post- J r- wood brace IN EARTH SHALE, LOOSE OR FRIABLE ROCK
nol post 3.5 mm tie wires
shrink/ -fencing
ent grout
IN ROCK Wooden line post
r--3.50m brace panel Standard post—•1
spacing
Overburden
Ii i_-Post hole to be X I II 11 Ground '�U X
i' drilled �U line
(See table below)
-�--WITH WOODEN POSTS
FENCE
SPLICING DETAIL
Loy together end
stay wires of-each of
the two sections to be
spliced.Then wrap the
overhanging ends
tightly around line
wire with pliers or
splicing tool.
Cut away stay if
necessary to allow
sufficient length
for splicing,
3.50 m brace panel
Gotq
post
Steel line post
Standard post-+1+- 3.50m brace panel
spacing 60x60 xG mm angle Iron
Overburden
y I r•-Post hole to Y I I Ground �Ox50x6 mm D
L' be drilled TLj line angle Iron
(See table below) ee footing
detall a�or�b
WITH STEEL POSTS
DETAILS
IN SOLID ROCK
Bra
C
post
175 or 185 Post dlo,
50 200 mm min
e — top for
terminal posts
175 O -150mm min
v top for line
og I I posts
-330 mm max
150 butt end for
all posts .
I
1 50 or 100 Irl I
1 1 110 or.125 J 1 I
u WIRE SPACING 8& POST DIA
NOTES:
I Standard post spacing:
Wooden post to wooden post -6.0 m.
Steel post to steel or wooden post-5.0 m.
2 Tie steel posts and wooden post together top
and bottom with 3.5 mm wire.
A Ratio of steel posts to wooden post shall
be 3; 1 unless otherwise specified.
8 All dimensions are in millimetres or metres
unless otherwise shown.
Steel angle
Ground concrete ; Iron
line(TYP) � I +
L l angle Overburden „ :t
n
0 to 450mm max �'•' I
Rock Non shrink
Non shrink 3 0 line 400 cement grout I I
cement grout (Typ) i IJ
'`-100 mm dia l'--100 mm do If sted-co or
Detail a Detail b blosted-concrete
Overburden less than 450mm Overburden more than 450 mm �300�--
ONTARIO PROVINCIAL STANDARD DRAWING
HIGHWAY FENCE
Date 1 1988 05
ATTACK-EFT FT NO, A
M-66-90
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ALL DIMENSIONS IN MILLIMETRES EXCEPT WHERE NOTED
Town of Newcastle Public Works oeprtrnent
CHECKED. CR0 S SEC110N REVISION NO-
GRADING , GRANULAR BASE AND SURFACE DATE APR. 1988
TREATMENT
JULY 25, 1988 RURAL ROADS
' FOR"
G.P.A. Minutes _ 19 -
July 9, 1990
Request from Becas Resolution #GPA-544-90
Developments Limited to
Open the Road Allowance Moved by Councillor Stapleton, seconded by Councillor Hamre
between lots 18 and 19,
South of Concession,::_:- ,_:THAT Report WD-66-90 be received;
Road 6, former Clarke
Township THAT the request by Becas Developments Limited to open the road allowance
(Patterson Road) and construct a road to Town of Newcastle standards between Lots 18 and 19,
77.2.150 south of Concession Road 6, former Township of Clarke, be approved, in
accordance with Town Policy and subject to the applicant satisfying all conditions
of the Town, financi l and otherwise;
THAT the Mayor and Clerk be authorized to execute an agreement between
Becas Developments Limited and the Town of Newcastle to allow Becas
Developments to construct a road on the unopened road allowance for
approximately 484.63 m (1,590 feet) in accordance with Town Standard
(Attachment No.5 to Report WD-66-90) and the conditions set out in Schedule 'A'
(Attachment No.3 to Report WD-66-90); and
THAT Mr. Kelvin Whalen, G. M. Sernas & Associates,
. for the applicant, Mr. P. E��'�b Consultants
Mr. & Mrs. Van Belle be advised Mr. & Mrs. Heggie, Mr. & Mrs. Lenael and
advised of Councils decision.
"CARRIED AS AMENDED
LATER IN THE MEETING"
(SEE FOLLOWING AMENDING MOTIONS)
Resolution #GPA-545-90
Moved by Councillor Hamre, seconded by Councillor Wotten
THAT the foregoing Resolution #GPA-54490 be amended by adding thereto:
"THAT Becas Develop
of the road ments construct an entrance to the Heggie property as part
ce�truction contract".
"CARRIED AS AMENDED
LATER IN THE MEETING"
(SEE FOLLOWING AMENDING MOTION)
Resolution #GPA-546-90
Moved by Councillor Hamre, seconded by Councillor Stapleton
THAT Resolution #GPA-544-90 be amended by adding thereto:
"THAT the concerns of Mr. J. Lenvel be addressed and trees be protected
whenever possible."
"CARRIED"
The foregoing Resolution #GPA-544-90 was then put to a vote and CARRIED AS
AMENDED.
ATTACHMENT NO. 2
WD-66-90 ADDENDUM
P
S hibley Righton
Barristers & Solicitors
RICHARD E.SHIBLEY,
DENNIS C.HEF ERONQ C JOHN D.BOGART,ORUPERT F. C DONALD K.ROBINS
DONALD o.C. Tel.:(416)363-9381
RICHARD E.ANKA,Q.C. BARRY S.WORTZMAN,O.C. LESLIE S.MASON Fax.:(416)365-1717
MICHAEL GORDON DEZ WIND ISCHMANN JOHN P.BELL
MICHAEL FITZPATRICK,Q.C. GEORGE CORN PETER H.SMITH
BRIAN M.CAMPBELL V.ROSS MORRISON P.JOHN PITCHER
GEORGE A.ROBERTSON ALAN L.BROMSTEIN JOHN C.SPEARN
MICHAEL C.BIRLEY PETER C.WILLIAMS RICHARD A.B.DEVENNEY
MICHAEL L.PATERSON J.PAUL WEARING PAUL E.McINNIS
BERNARD McGARVA PETER G.NEILSON CLIFFORD I.COLE Box 32—401 Bay Street
JONATHAN H.FLANDERS CHARLES SIMCO THOMAS A.STEFANIK
BARBARA R.C.DOHERTY WILLIAM L.NORTHCOTE JAMES ROSSITER Toronto,Canada
CAROL A.STREET HELDER M.TRAVASSOS PETER M.WHALEN
PETER V.RAYTEK J.JAY RUDOLPH BRIAN W.CHU
CYNTHIA J.GUNN MARTIN J.HENDERSON ANITA T.KAIN M5H 2ZI
NICHOLAS T.MACOS WARREN S.RAPOPORT RICHARD E.COLES
CHRISTOPHER B.LOBE MERLE M.NUDELMAN MARTIN PETERS
ALEXANDER P.TORGOV SEAN M.FORAN CHARLES M.GASTLE
PHILIP P.HEALEY R,PETER A.MACDONALD DONALD A.McNEILL
SHEILA M.QUIGLEY TIMOTHY J.HILL J.PAUL R.HOWARD
WADE D.JAMIESON LEONARD D.RODNESS NETANUS T.RUTHERFORD Suite IHOO
THOMAS R.WHITBY SANDRA E.DAWE LINDA J.GODEL
JANIS E.INGRAM CHRISTINE M.SILVERSIDES JEFF G.A.BU RTT
SALVATORE J.P.FRISINA JOHN D.HISCOCK OSCAR J.SALA The Simpson Tower
COUNSEL
MARTIN L.OBRIEN,Q.C. BARRY D.LIPSON,Q.C. '..
January 25, 1991
VIA FAX NO. 1(416) 623-5717
Mr. Walter Evans
Director of Public Works C
Town of Newcastle
y
i 1
40 Temperance Street
Bowmanville, Ontario
L1C 3A6
Dear Mr. Evans:
Re: Becas Developments Limited's ("Becas°)
Application to Open as a Public Highway
the Allowance between Lots 18 & 19, South
of Concession Road 6, Former Clarke Township,
(Patterson Road)
I am writing to you regarding the above matter which was dealt with in Report
WD#66-90. In the course of the preparation of this report, you asked Mr. N. Macos of
our firm to provide you with legal advice concerning certain issues. Subsequently, you
asked for confirmation of that advice in writing. I am responding to the latter request.
ATTACHMENT ACE�,1ENT N0, 3
WD-66-90 ADDENDUM
Shibley Righton
- 2 -
ENCLOSURES AND REMOVAL OF TREES
There are several facts set out in Report #66-90 which need to be noted at the
outset. First, the above allowance is an original road allowance. Second, there are certain
encroachment areas on the allowance which have been enclosed with abutting properties.
Third, there are a large number of trees growing on the allowance in question which will
have to be cut and removed if the proposed road is to be constructed. Fourth, it is
proposed that when these trees are cut down, the timber would be disposed of by gift to
certain of the abutting property owners and not sold to anyone.
Since the allowance is an original allowance and private persons are in possession
of and have enclosed portions of it by installing fences that apart from the fact that the
title to the allowance is vested in the Town, would be lawful, and since the allowance in
has not been opened as a public highway apparently because parallel roads to it have been
established, in my opinion, Subsection 300(1), of the Municipal Act R.S.O. 1980, c.302 will
apply. Under that Subsection, until a by-law has been passed by the Town Council for
"opening" the allowance under Subsection 300(1), the abutting owners who have enclosed
parts of the allowance are deemed to be legally possessed of the part of which they are in
possession against all persons except the Town.
In my opinion, in application to the present circumstances, the term "opening" as
used in Subsection 300(1) of the Act means opening up the total area of the allowance in
question, that is by removing any fence erected by abutting owners. In short, the limited
Shibley Righton
- a -
right of the abutting owners to possess the enclosed parts of the allowance in question
will terminate on the enactment of a by-law pursuant to Subsection 300(1).
However, as a result of Subsection 300(2) of the Municipal Act, a by-law cannot be
passed to "open" an allowance in the sense just mentioned "until notice in writing of the
intention to pass it has been given to the person in possession at least eight days before the
meeting of the Council at which the by-law is to be taken into consideration." Although
I
more than eight days notice of the G.P.A. Committee meeting at which Report WD#66-
I
90 was considered, was given to the persons in possession of parts of the allowance in
question, in my opinion, Subsection 300(2) requires that eight day's notice must also be
given of the meeting of Council itself at which the by-law to implement Report WD#66-
90 could be considered in order for the by-law to be effective in law.
With regard to the trees now growing on the allowance in question,under Subsection
313(3) of the Municipal Act, trees "upon a highway, are deemed to be appurtenant to the
land adjacent to the highway and nearest thereto. Prior to removing such a tree, a by-law
would have to be passed pursuant to Subsection 313(4)(e).
Although it may argued that Section 313 of the Municipal Act does not apply to the
present situation since the trees are growing on an unopened road allowance, that is on
land which does not yet comprise a public highway, and since implementation of Report
#G.P.A. 66-90 will necessitate the passing of a by-law to establish and lay out a public
7
Shibley Righton
- 4 -
highway and that by-law may be passed prior to the removal of the trees in question, it
i
would be prudent to pass a by-law under Subsection 313(4)(a) of the Municipal Act to
authorize the removal of the trees from the allowance.
A by-law cannot be passed under Subsection 312(4)(e) unless it is in the public
interest to remove the trees and then only after ten days notice of the Town's intention is
given to the owner of any abutting land to which the tree is appurtenant. In the
circumstances it would be prudent to give this notice to all owners of lands which abut the
allowance in question.
Since the allowance in question is an original allowance, Paragraph 309 6 of the
Municipal Act would be applicable if it was proposed to sell the timber or trees now
growing on it. This Paragraph authorizes a municipal council to pass by-laws:
"for preserving or selling the timber or trees on any original allowance road, subject
however ... in the case of an unopened original allowance for road, ... the approval
of the Minister of Natural Resources".
Since Report WD#66-90 proposes that the Town give the timber to certain of the
abutting owners, (that is make a grant of the timber to them), in my opinion, a "sale" of the
timber would not be involved. Therefore, in my opinion, the prior approval of the Minister
of Natural Resources to a by-law passed to approve Report WD#66-90 would not be
Shibley Righton
- 5 -
required under Paragraph 309(6) of the Municipal Act.
PROCEDURE UNDER SECTION 298 OF THE MUNICIPAL
ACT TO ESTABLISH AND LAY OUT A HIGHWAY
As I noted above, a by-law passed pursuant to Section 300 of the Municipal Act to
"open" the road allowance will only have the effect of authorizing the Town to remove the
fences enclosing areas of the road allowance in question with abutting lands. In order to
establish a public highway in the present circumstances, a by-law must be passed under
Subsection 298(1)(a) of the Municipal Act. Before passing such a by-law, the Town must
comply with the advertising and process requirements of Section 301 of the Municipal Act,
as well as the requirements of the Act and the Regional Municipality of Durham Act.
Subsection 298(1)(a) of the Municipal Act provides:
"The council of every municipality may pass by-laws,
(a) for establishing an laying out highways."
In the common situation where a new plan of subdivision is approved and registered,
draft approval usually will have been given conditional on the making of an agreement with
the Town. Typically, that agreement will require the subdivider to construct to the
municipality's specifications and satisfaction, the services and pavement necessary to actually
create a road on the allowances shown on the plan of subdivision in question. When the
Shibley Righton
- 6 -
I
road has been constructed to the Town's specifications and satisfaction, and the warranty
period has expired, the Town Council may assume the road as a public highway. This
assumption usually is effected by by-law.
Once the road has been assumed as a public highway, the Town is required to keep
the highway in repair. Also, from the time of the assumption of the road, members of the
public have the right to use it as a public highway. Of course, the status of the road as a
public highway and the right of the public to use it can only be changed by by-law passed
under Subsection 298(1) of the Municipal Act to close the highway after full compliance
with the process requirements of Section 301 of the Municipal Act.
The road allowances shown on a registered plan of subdivision are owned in fee
simple by the Town from the date of registration of the plan of subdivision on title.
Construction of a road pursuant to the requirements of a subdivision agreement will take
place on the Town-owned allowance. Prior to the approval and registration of the plan of
subdivision in question, title to the proposed roadways will have been the subdivider
concerned.
Construction of the roads on a registered plan of subdivision will proceed in
accordance with the requirements of the particular subdivision agreement after title to the j
allowances has been vested in the Town. Following completion of the roads and the expiry
of the warranty period, the assumption by-law either explicitly or implicitly will provide for
i
I
Shibley Righton
- 7 -
the dedication of the road for the use by the public as a public highway. The Town's
liability to repair dates from the assumption of the roads in question.
Report WD#66-90 presents a situation that is somewhat unusual today. The original
road allowance is owned in fee simple by Town by force of the Municipal Act and not as
a result of registration on title of a plan of subdivision. The proposed road is constructed
by Becas on the Town-owned unopened allowance.
I
In the case of the unopened allowance in question, the appropriate way to proceed
would be for Council to pass a by-law under Subsection 298(1)(a) of the Municipal Act
following compliance with the process requirements of Section 301 of the Act and, of
course, following adoption by Council of your recommendations contained in Report
WD#66-90. Although the point is not free from legal dispute, and despite the fact that
frequently municipalities will pass by-laws ostensibly under the authority of Subsection
298(1)(a) after a road has been constructed, in my opinion, the term "laying out" as used
in Subsection 298(1)(a) is correctly interpreted in law to mean laying out the proposed road
on the ground by survey and declaring that as so laid out the road is a public highway. (See
Schrader v. Gratten [1945] O.R. 657; Re Ostrom and Sidney [1887] 15 O.R. 43, appeal
allowed on different grounds 15 O.A.R. 372, and Reeve v. Fort William [1955] O.W.N.
207.)
Therefore, in my opinion, in the present circumstances, it is open to the Town
i '7 0
Shibley Righton
- 8 -
Council to pass a by-law under Subsection 298(1)(a) of the Municipal Act in partial
implementation of Report WD#66-90 prior to the construction of the road in question as
a public highway in order to establish and lay out a public highway, assuming of course, that
the requirements of Section 301 of the Act will be satisfied.
Prior to the enactment of such a by-law, an agreement should be executed by Becas
with the Town dealing with the construction of the road in question, including matters of
insurance, indemnity, and security. I would contemplate that the agreement would contain
the relevant provisions of the standard subdivision agreement used by the Town. Any
security that is required by the agreement including insurance should be deposited with the
Treasurer prior to the passing of a by-law under Subsection 298(1)(a) of the Municipal Act.
BY-LAWS REQUIRED TO BE PASSED TO IMPLEMENT REPORT WD#6-90
In summary, and subject to what will be said below concerning the recommendations
contained in Report W13#66-90 respecting the supply and planting of trees on privately-
owned land, if Council approves the Report, the following by-laws should be passed after
complying the process requirements noted above:
1. A by-law to authorize the execution of an agreement to implement the
construction, security, insurance and indemnity requirements proposed in the
Report;
G7
1
Shibley Righton
- 9 -
2. A by-law under Section 313 of the Municipal Act to authorize the removal
of trees now growing in the allowance;
3. A by-law under Section 300 of the Municipal Act "to open" the allowance in
question; and
4. A by-law under Subsection 298(1)(a) of the Municipal Act "to establish and
lay out a public highway in the allowance in question.
NEW TREES PROPOSED TO BE PLANTED ON ABUT'T'ING PROPERTIES
As you note in your letter to Mr. Macos of June 28, 1990 paragraph 3.2 of Report
WD#66-90 provides for the Town to act "the banker" for the payment of the cost of the
supply and planting of trees of the Langyel and Heggie properties. The proposal is that
Becas would provide the Town with a letter of credit in the amount of$14,000.00 to provide
for the cost of the trees. The Town would make payments in response to invoices
submitted from time to time by Mr. Langyel and Mr. Heggie.
Apart from the legality of the proposed arrangement, I would note that its
implementation would require either that the Town establish a fund of $14,000.00 from its
own monies and call on the letter of credit after all disbursements have been made, or that
� � 7 2
Shibley Righton
the Town call on the letter of credit prior to making any disbursements for the purposes
set out in paragraph 3.2 of the Report. I assume that what is intended is the latter.
However, it is not clear to me why a letter of credit would be proposed rather than a cash
deposit from which disbursements would be made with any remaining balance being repaid
to Becas.
With regard to the legality of the proposed arrangement, I note that the
disbursement of monies for trees to be planted on private property is permitted only with
the consent of the owner where "shade or ornamental trees" are being planted adjacent to
any highway. In such a case, municipal funds may be used to pay the cost of supplying and
planting such trees.
If the trees in question could be so described, the Town would have power to pass
a by-law under Subsection 313(4)(b) of the Municipal Act to authorize the planting of such
trees at the expense of the Town. The Town has authority to accept gifts from individuals.
Therefore, it would be lawful for the Town, in my opinion, to accept a gift of $14,000.00
(or whatever the appropriate figure is) from Becas which would be paid into a reserve
account. The monies could then be disbursed to pay for the cost of planting the "shade or
ornamental trees" in question.
If it is the case that paragraph 3.2 of Report WD#66-90 contemplates that any of
the new trees proposed to be planted either would not qualify as "shade or ornamental
Shibley Righton
- 11 -
trees" or would not be "planted adjacent to a highway", then the arrangement could not be
authorized under Subsection 313(4)(b) of the Municipal Act. In such a case, since no
legislation authorizes the Town to act as "the banker", as you term it in your letter of June
28, 1990, the Town would not have the legal authority to act as "the banker". As a result,
in my opinion, the arrangement contemplated by Report WD#66-90 could not be
implemented in law.
Even if the proposed new trees are "ornamental or shades trees" which would be
planted "adjacent to a highway" within the meaning of those terms as they are used in
Subsection 313(4)(b) of the Municipal Act, it should be noted that Council is not permitted
to pass a by-law to authorize the planting of such trees without the consent of the owner
of the land concerned. Therefore, in no case, in my opinion, would it be possible for the
Town to proceed to implement any arrangement with regard to the planting of new trees
on the Langyel and Heggie properties without the consent of these owners.
OTHER ISSUES
I understand that Mr. Macos gave you verbal advice concerning the questions
whether title to the enclosed areas of the allowance in question had been acquired by
adverse possession by the abutting property owners and as to the application of the
Environmental Assessment Act requirement of the approval of an "undertaking" within the
meaning of that Act prior to its being commenced. Mr. Macos' advice, as I understand it,
Shibley Righton
- 12 -
was that there was no evidence available to support any claim to title by adverse possession
and that the proposed road was exempted from the requirements of the Environmental Act
by regulations passed pursuant to it. I agree with that advice. I will not detail the reasons
for that advice unless you instruct me to do so.
I also understand that you will be reporting to Council on the assessment and
taxation implications of establishing a public highway on the allowance in question. In light
of this, I do not intend to report on this aspect of the financial implications of Report
WD#66-90 as I was previously requested to do by Council. Please advise whether Council
intended to ask me to report on any other financial implications.
Yours truly,
SHIBLEY RIGHTON
� 4
Dennis Hefferon
DH/lh
cc: Mr. L. Kotseff
MINUTES OF MEETING
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RE: BECAS DEVELOPMENTS PROPOSAL TO OPEN PATTERSON ROAD
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APRIL 3, 1991
7:00 P.M.
MEETING ROOM 1
Attendees : Mr. & Mrs . S. Heggie
Mr. & Mrs . A. Van Belle
Mr. G. Lengyel
W. A. Evans, P. Eng. , Director of Public Works
J. O'Neill, Administrative Assistant to
the Director of Public Works
B. Kawun, G. M. Sernas & Associates
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Purpose of Meeting
Report WD-66-90 was referred back to Staff for receipt of a legal
opinion pertaining to the financial ramifications to the Town,
should these lands change ownership. The solicitor provided
comments and the meeting was arranged to report the solicitor's
comments to the property owners .
Section 3 .2 5) Trees
In summary, the solicitor advises that there is no legislation
which authorizes the Town to act as "the banker" . Therefore, the
Town does not have the legal authority to act as "the banker" .
Walter stated that he would be prepared to recommend a cash payment
handled by agreement between the abutting owners and Becas
Developments . Cash payment to property owners would be made in
conjunction with the signing of the Agreement with the Town to
construct the road.
Mr. Heggie expressed concern regarding the sale of the property
once the agreement to construct the road has been signed. Walter
agreed that there should be provision in the agreement that the
agreement becomes null and void if the property is sold prior to
the Town assuming the road for maintenance.
. . .2
ATTACHMENT NO. 4
WD-66-99 ADDENDUM
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. . .2
RE: BECAS DEVELOPMENTS PROPOSAL TO OPEN PATTERSON ROAD
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The dispersement of stone, wood and topsoil was discussed and the
following locations were confirmed. Ownership is to be determined
,by the centreline of the road allowance for frontage of the
property.
Mr. Van Belle
Wood: To be placed at the fence line, 450 feet from the road.
Stone: To be placed on the south side of the fence, 620 feet
south of where the wood is to be placed.
Topsoil: To be placed by the clump of trees next to the fence
where the topsoil is to be placed.
Mr. Heggie
Items to be placed adjacent to the new driveway.
Mr. Lenctyel
Items to be placed adjacent to his driveway.
Mr. Lengyel requested that the payment for trees as stated in
Report WD-66-90 be increased to reflect 7% G.S.T. , 5% inflation and
the value of a year's growth. Walter agreed to recommend an
increase to offset G.S.T. and inflation only.
Walter agreed to recommend inclusion of the gate and entrance to Mr.
Heggie's property as stated in the General Purpose and Administration
Resolution of July 9, 1990 .
Walter confirmed that the road is to be constructed in the centre of the
road allowance and the fences are to be placed on the property line, in
a straight line with no deviations.
All abutting property owners and B. Kawun, G. M. Sernas & Associates,
will receive a copy of the report and be advised of the date and time
of the meeting when the report will be considered.
Minutes prepared by Jan O'Neill
F 7T
Barristers &SaLciwrs
RICHARD E.9HIBLE•Y n.C• RUPERT F.RIGHTON, C. HAROLD H.ELLIOTT (y.(;. eL(416)363-9381
DrNNIsp,HCFFgRo,J JOHN D,sgr,ART,O,C, DONAL❑ K,RpRINSbN,O,C,
RICHARD g„gNKA,O,C, BARRY S.WORTZMAN,Ch,t LESLIE $,MASON
MICHAFFI rOpDON DEZ WINDISCHMANN JOHN f;SKLL �'QX,I(416)36$-17x7
MICHAEL FItZPATRICK,Q.C, OFORGE CORN RETF F? H,gpg1T1.1
BRIAN M.CAMPBELL V,ROSS MORRISON R JOHN PITCHER
C,:RORGC A.RCIBERTSOM ALAN 1.,9pC5ME7£IN JOHN O.ypCA.RN
MICHAEL C.BIRLEY PETER C,WILLIAMS RICHARD A.B.DEVENNEY
MICHAEL L.PATERSON J.PAUL WEARING PAUL E,MCINNIs
rhFRNARD MoGARVA NE•T(rp G,NEILSON CLIrroNiC I,COLE d(}I$a
JONATHAN H.FLANDERS CHARLES OX 32 -
ES SIMco THOMAS A,SYEFANIK y'Stmet
BARBARA R,C.DOHSRTY WILLIAM L.NORTHCOTE JAMES RbB5iTER
HELDER M.TRAVASSOB P6TIZR M,WHALEN PI.'TCR V,RAYTEK Tpronto,Canada
J,JAY RUDOLPH BRIAN W.CHU CYNTHIA J,GUNN
MARTIN J,HENDERSON AN TA T,KAIN NICHOLAS T,MACos ZZl 1Vt5X-i
WARREN S.RAPOPORT a 6
1CH^R0 ,COLES CHrVACTOPI'ICR B,LOBE
MERLE M.NUDELMAN MARTIN PETERS ALEXANDER P.TbROov
SEAN M,FORAN CHARLrA M.CASTLE PHILIP P.HEALEY
P.PETER A.MACDONALD bONALFP T.M,)NEILL He1LA M,OUIGLEY
TI ”-'
MOTHY J.HILL J.PAUL R,HOWARD WADE C4JAMIEBoN
LEONARD D,RODNESS NETANUS Y.RUTHERFORD THOMAS A.WHITBY
SANDRA E.DAWE LINDA J.GODEL JANIS E.ING RAM 4olte 1�Q�
CHRISTINE M_y1LVERSIDFS JEFF G,A.BU RTT SALVATORE J.P.FR131Nq
JOHN D,HISCOCK OSCAR J,SALA The Simpoon Tower
COUNSEL
MARTIN L.O'BRIEN,Q.C. MARRY D,LIPSON,Q.C.
May 7, 1.991
VIA FAX Na. 1 (416) ,623-5717
Mr, W. A. Evans
Director of Public Works
Town of Newcastle
40 Temperance Street
Bowmanville, Ontario
L1C 3A6
Attention:Mrs. Jan. C. O'lfeill
Dear Sir;
Re: Becas Developments Limited's Application
to Open as a Public Highway the Allowance
between Lots 18 and 19, South of Concession
Road 6, Former Clarke 'Township (Patterson Road)
Your File: 05.18,01
Thank you for your undated letter respecting the above matter wherein you indicate
that the abutting owners have requested that the Construction Agreement with Beeas
include a clause that would make the Agreement null and void if the property changes
ownership prior to assumption of the road by the Town, You asked for my advice as to
whether the Town can "legally include such a clause in the Agreement and if so, please
provide the correct wording,"
I begin by noting that in the ordinary situation concerns respecting the proposed used
of lands should be addressed in the Town's Zoning lay-Law, However, unless a commercial
or an industrial use is proposed to be made of the lands in question, the Town probably
ATTACHMENT NQ,
� �' WD-66-90 ADDFNDUM
Shibley Righton
- 2 -
does not have authority to include in its Zoning By-Law a prohibition against the capture
and removal from the lands of spring water. As a matter of law, spring water is classifted
as part of the land itself until it is captured and removed.. Zoning by-laws can be enacted
to regulate the use of land but absent express authority to the contrary in the enabling
legislation, not the using up of land. I note in this regard that the making, establishment
or operation of a pit or quarry is deemed to be a use of land for the purposes of a zoning
by-law by the express provisions of Section 34(2) of the Planning Acts 1983_ There is not
a similar provision dealing with the capture and removal of spring water.
In approaching the specific question that you asked of me, I find it useful to consider
three situations that may occur if the proposed Construction Agreement for the highway
between the proponent and the Town includes a provision whereby the Agreement
automatically terminates on the sale of the lands owned by the proponent, First, a sale of
the proponent's lands may occur before construction of the highway is commenced. Second,
the We may occur after construction has been commenced but before it has been
completed. "Third, the sale may occur after construction has been completed but before the
expiry of the warranty period provided in the Agreement and the assumption of the highway
by the Town,
I begin by noting that there is no reason in law why the Construction Agreement
cannot contain such a termination provision if it is otherwise appropriate in the
circumstances.
In the first situation, the proponent would be precluded from selling to a purchaser
with his land the benefit of the Agreement with the Town. The purchaser would have to
make a new Construction Agreement with the Town if the Town was prepared to do so,
The Town would be no better and no worse off with respect to the highway than it is at
present if a sale was made.
In the second and third situations, a termination provision in the Agreement would
prejudice the 'Town insofar as the Town would have on its hands either a partially
completed highway or a completed highway without the benefit of the proponent's covenant
to warrant the quality of the construction for a period of two years following con pietion
of construction.
In order to address the obvious negative consequences that would otherwise be
suffered by the Town if the Agreement with the proponent simply provided for its automatic
termination on a sale, I think that the Agreement would have to require the proponent to
give notice to the Town of a sale and either on such notice being given or a sale in fact
taking place, the Town would be authorized to call the letter of credit required to be given
as a performance guarantee and use the proceeds thereof to complete the construction of
the highway and to provide the necessary maintenance guarantee for the. two year warranty
period. One way or the other, ho«We',TT, if construction of the highway has actually been
cornrnenced by the proponent, it seer7)� to me that the end result will be the completion of
Shibley Righton
- 3 -
the construction of the highway in question and, ultimately, its assumption by the Town.
This seems to be inconsistent with the result that the residents wish to achieve.
Before I draft a provision that might be included in the Construction Agreement with
the proponent, I would appreciate it if you would review the contents of this letter and give
me your instructions as to whether I should proceed to draft such a clause. please
telephone me with your response:
Yours truly,
SHMIXY RIGHTON
DH/lh Dennis Hefferon
cc: Mr. L. Kotseff
X80
SCHEDULE 'A'
1. COSTS
The applicant agrees to pay all costs associated with the
construction of the road.
2. PORTABLE WASHROOMS
The applicant will make provision in the contract for the
contractor to provide portable washrooms for construction
personnel.
3. WOOD FROM TREES
The applicant will make provision in the contract that the
contractor will supply wood cut from the road allowance to the
abutting property owners . The wood is to be divided in equal
portions to those property owners who request it.
4. PLANTING OF TREES
Becas Developments will make a cash payment of $5,271 to
Mr. & Mrs . S. Heggie and $10,458 to Mr. & Mrs . G. Lengyel upon
execution of the agreement with the Town.
5. TOPSOIL
Topsoil not used for ditches will be distributed to adjacent
property owners . The contractor will deposit excess topsoil on
adjacent property owners ' land on a location designated by the
owners .
6. STABILIZATION OF LAND
Agreement specifies seed where possible. Sod will be used if
erosion is considered a problem.
7. FENCING
The applicant will make provision to have a farm type fence erected
in accordance with the Ontario Provincial Standard 901.01 on both
sides of the road for the distance of the construction.
ATTACHIMENT ado, 6 . . .2
WD-66-99 ADDENDUM
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Schedule 'A'
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B. STONE
The applicant will make provision in the contract to have field
stone delivered to a specified location satisfactory to Mr. Heggie.
9. PLACEMENT OF WOOD FROM THE TREES, TOPSOIL AND FIELDSTONE
The wood, topsoil and fieldstone is to be delivered and placed as
follows:
a) VAN BELLE PROPERTY
Wood: To be placed at the fence line, 450 feet
from the road.
Field Stone: To be placed on the south side of the
fence, 620 feet south of where the wood
is to be placed.
Topsoil: To be placed by the clump of trees next
to the fence where the topsoil is to be
placed.
b) HEGGIE PROPERTY
Wood, fieldstone and topsoil to be placed adjacent to the
new driveway.
C) LENGYEL PROPERTY
Wood, fieldstone and topsoil to be placed adjacent to the
driveway.
10. ALIGNMENT OF THE FENCE
The fences to be constructed shall be constructed on the property
line/limit of the road allowance and shall not deviate from the
property line to go around trees, boulders, etc .
11. CONSTRUCTION OF ENTRANCE AND GATE AT THE HEGGIE PROPERTY
An entrance and gate shall be constructed at the Heggie property
at a location to be determined by Mr. Heggie.
12. ALIGNMENT OF THE ROAD
The centreline of the road is to be constructed on the centreline
of the right-of-way.
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ALL DIMENSIONS IN MILLIMETRES EXCEPT WHERE NOTED
? Town of Newcastle Public Works 0 rtment
dvr CHECKED. CRO S SECTION REVISION Ha '
GRADING , GRANULAR BASE AND SURFACE DATE APR. 1988
APPROVED �
TREATMENT
JULY <s, 1988 FOR RURAL ROADS