HomeMy WebLinkAboutLGL-012-13 CiariflgtOR LEGAL REPORT
LEGAL DEPARTMENT
Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Date: December 9, 2013 Resolution#: 610H ` — y-law#:
Report#: LGL-012-13 File#: L2030-07-03
Subject: FORCED ROAD — 4826 CONCESSION ROAD 6, NEWTONVILLE
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Council either,
(a) pass a by-law to close that portion of Concession Road 6 shown as Part 3
on Attachment 5 to this Report and convey its interest in such land to
Peter Andrew Mian; or
(b) advise Jo-Ann and Peter Mian that no action will be taken in response to
any of the options that they have presented to Council.
;E
Submitted by: Reviewed by E
Andre C. Allison, B. Comm., LL.B. Franklin Wu, MAOM
Muni ipal Solicitor Chief Administrative Officer
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379
REPORT NO.: LGL-012-13 PAGE 2
1.0 BACKGROUND
1.1 This report will address several of the issues that were raised by Jo-Ann and
Peter Mian in their letter to Members of Council dated November 8, 2013
(Attachment 1). In their letter, Mr. and Mrs. Mian requested that Council "remove
the Forced Road designation" from that portion of Concession Road 6 that is
shown as Part 2 on Plan 40R-15830 (Attachment 2). In this Report, Part 2 on
Plan 40R-15830 will be referred to as the "Forced Road".
1.2 At the November 18, 2013 Council meeting, Rob MacDonald and Joseph
Sinacori made delegations in response to Mr. and Mrs. Mian's request. Copies
of Mr. MacDonald's and Mr. Sinacori's written submissions are attached to this
Report (Attachments 3 and 4).
1.3 Attachment 5 to this Report is a map showing 4826 Concession Road 6,
Newtonville and some of the surrounding properties. The portion of Concession
Road 6 east of Gilmore Road that is registered in Clarington's name and
maintained year round by Clarington is identified as Part 1. The portion of
Concession Road 6 that is registered in Clarington's name and seasonally
maintained by Clarington is identified as Part 2. The portion of the Forced Road
that is seasonally maintained by Clarington is identified as Part 3. The portion of
the Forced Road that is maintained year round by the Municipality of Port Hope is
identified as Part 4.
1.4 In simple terms, the issue is whether Council should close all or some portion of
the Forced Road (Parts 3 and 4 on Attachment 5), or leave things as they are
today.
2.0 OPTIONS
2.1 In their letter dated November 8, 2013, Mr. and Mrs. Mian requested that Council
remove the forced road designation and allow them, after a period of 1 year, to
gate their "driveway" where it meets East Townline Road (OPTION 1).
2.2 At the November 18, 2013 Council meeting, Mr. Mian presented the following two
additional options for Council's consideration:
OPTION 2: The Municipality can purchase the Forced Road at fair market value
and assume full liability for it, improve and maintain it to provincial
standards, and install a fence and foliage alongside their property
line for privacy.
OPTION 3: The Municipality can remove the forced road designation and
provide an access "road" for the residents of 4855 Concession
Road 6 off of East Townline Road.
REPORT NO.: LGL-012-13 PAGE 3
3.0 DISCUSSION
3.1 In Clarington, there are many kilometers of "forced" roads. They are also
sometimes referred to as "trespass" or "given" roads. Examples include parts of
East Beach Road and West Beach Road in Bowmanville, Lakeshore Road in
Newtonville, and Concession Road 5 (Sommerville Drive) in Orono.
3.2 Forced roads are publicly used roads that cross private property. Their origins
often date back to the 1800's. Almost all forced roads were created because
physical constraints made it difficult to build a road within the municipal road
allowance. Even though private individuals have paper title to the land over
which a forced road runs, it is a public highway if there has been an "implied
dedication" by the owner and an "implied acceptance" by the municipality.
3.3 W.D. (Rusty) Russell (an acknowledged expert in the field of municipal roads) in
his book "Russell on Roads (Second Edition)" provided the following explanation
of forced roads:
"Where a trespass/given/forced road has by common law, become
a "public highway"it is, in most cases, part of a larger parcel of
land, still registered, in private ownership. Once a road has
acquired this classification, the owner cannot stop the public from
using it."
3.4 Issues respecting forced roads often arise when properties are sold. Mr. Russell
described the situation as follows:
"In most cases, the original owner of the land who permitted the
trespass (most likely in the 1800s) and his children, have long since
left the area. Then follows a succession of owners, who, over the
years, have also acquiesced in the use of the road by the public.
That by itself does not give the municipality legal (paper) title, since
that area is still in the name of the present, or past, registered
owner. It is usually a new owner, who, on learning that the
municipality does not have paper title to this long-standing highway
encroachment across his land, rises up in righteous indignation."
3.5 As Mr. MacDonald correctly pointed out, the Forced Road can be traced at least
as far back as 1861 (pre-Confederation). Far more recently, the Forced Road
was identified as a "FORCED ROAD" on a 1994 survey of the Mian property
(Part 2 on Plan 40R-15830 - see Attachment 2). It was also clearly shown as a
"TRAVELLED (Variable Width) ROAD" on a survey of 4855 Concession Road 6
(see Item 7 of Attachment 4). Staff do not know the date that this survey was
prepared.
3.6 In my opinion, based on all of the information that I have reviewed, the Forced
Road was long ago impliedly dedicated and accepted, and it is therefore a public
highway.
REPORT NO.: LGL-012-13 PAGE 4
3.7 Other parts of Concession Road 6 that used to be classified as "forced" have
been conveyed to the Municipality at no cost.
3.8 The Forced Road has been recognized as being part of Concession Road 6 for
decades. This is why all of the properties that front onto the Forced Road have
"Concession Road 6" municipal addresses (not East Townline Road).
3.9 The request by Mr. and Mrs. Mian to do something about the Forced Road is not
the first such request. In a letter to the Mayor and Members of Council dated April
24, 2012, Lorraine Wright requested that this "municipal road" be maintained year
round. Mrs. Wright lived on the property from the time that the house was built in
2000 (building permit#99.0522 was issued September 13, 1999) until it was sold
to Mr. Mian in July of this year.
3.10 Although it is not necessary to deal with all of the issues raised by the residents,
staff feel that it is necessary to respond to the following comments in the letter
dated November 8, 2013 from Mr. and Mrs. Mian for clarification and
completeness:
(a) "Peter and Jo-Ann Mian are the physical owners of the dirt road identified
as Plan 40R-15830; Part 11 in both deed and title. As such we are liable for
anything that happens on that piece of property."
Staff do not know what is meant by "physical owners ... in both deed and
title". Legal (paper) title to the Forced Road is registered in the name of
Peter Andrew Mian.
Mr. and Mrs. Mian have every right to be concerned about potential
liability, but they have misstated the extent of that potential liability.
The Forced Road is a Class 6 highway which means that the Province's
minimum maintenance standards do not apply to it. But that does not
mean that the Municipality does not have a legal obligation to maintain it.
Because the Forced Road is a public highway, the Municipality must "keep
it in a state of repair that is reasonable in the circumstances, including the
character and location of the highway..." (see Section 44 of the Municipal
Act, 2001 and Powell v. West Nissouri (Township), [1999] O.J. No. 2299
(Sup. Ct.). In other words, the legal responsibility for any public road rests
with the municipality that has jurisdiction over it.
(b) "The Forced Road designation to that piece of property dates back to a
time when farmers needed to use that dirt road for the purpose of
accessing fields. Currently, there are no farmers in the area that require
access to our road."
The first sentence is accurate. It would also apply to virtually every forced
road in the Municipality. Staff do not know how many farmers are using
the Forced Road today. However, there is a legal adage "Once a public
road, always a public road", so the fact that the type of use or user has
REPORT NO.: LGL-012-13 PAGE 5
changed does not affect the legal status of the road. Even if a forced road
is no longer used by the public and is closed (but not conveyed), it would
still be a public road (Aikens v. Puslinch (Township), [1999] O.J. No. 2774
(Sup Ct.)).
(c) "The situation as it current stands poses a legal paradox, which the Title
Insurer will pursue on behalf of the property owners."
Forced roads are admittedly a legal paradox for most people. Most home
buyers today acquire title insurance when they purchase a home. Staff do
not know what claim Mr. and Mrs. Mian have made with their title insurer.
(d) "A few local residents who reside on East Townline Road use the dirt road
out of convenience to travel to/from their homes. This road is not
accessible during the winter season. During the winter months those
residents must travel a short distance south to Concession 5, which is
paved and maintained year round by the Municipality."
These statements are accurate. However, the fact that the road is only
seasonally maintained does not change its status as a forced road.
(e) "... a posted speed limit of 50kms per hour..."
There is a speed limit sign on Concession Road 6 where it meets Gilmore
Road. At the point where Concession Road 6 is no longer maintained
year round (where Part 1 meets Part 2 on Attachment 2), there is a sign
that warns users that the Forced Road is unimproved, that it is only
seasonally maintained, and that they should proceed at their own risk.
(f) "... the property identified on Plan 40R-15830 Part 11 is private property..."
The Forced Road is not private property. It is a public highway and it was
explicitly identified as such on this Reference Plan (see Attachment 2).
The words "FORCED ROAD" are clearly written within Part 2 on Plan 40R-
15830.
(g) "... the municipality has not maintained that piece of land prior to July of
1999 (see document 2). Further this document clearly illustrates that the
dirt road leading from the front of our house to East Townline Road is in
fact our driveway."
These statements are not correct. Clarington and its predecessors have
been seasonally maintaining that portion of the Forced Road shown as
Part 3 on Attachment 5 for decades. The Municipality of Port Hope and its
predecessors have been maintaining the portion of the Forced Road
shown as Part 4 year round for decades.
The document referred to is an Application For Property Access that was
prepared and filed by Mrs. Wright as a pre-condition to being allowed to
REPORT NO.: LGL-012-13 PAGE 6
build a house on 4826 Concession Road 6. In order to obtain a building
permit, Mrs. Wright had to demonstrate that the property fronted onto a
municipal road that was maintained year round. This document simply
demonstrates that not all of the Forced Road was maintained year round.
The document itself refers to a "Forced Road Allowance" that existed well
before it could ever have functioned as a "driveway" for 4826 Concession
Road 6.
(h) "The only resident who currently requires use of a small portion of our
driveway to access their property is located at 4855. As confirmed by title
search, the owner of this property does not have right-of-way over our
driveway."
It is correct that the owner of 4855 Concession Road 6 does not have a
deeded right-of-way over the Forced Road, but they do not need one
because it is a public highway.
4.0 RECOMMENDATION
4.1 Given that the Forced Road is a public highway, it is recommended that Council
either,
(a) pass a by-law to close that portion of Concession Road 6 shown as Part 3
on Attachment 5 to this Report and convey its interest in such land to
Peter Andrew Mian; or
(b) advise Mr. and Mrs. Mian that no action will be taken in response to any of
the options that they have presented to Council.
4.2 In the previous section, I have purposefully distinguished between the portion of
the Forced Road that is shown as Part 3 on Attachment 3 and the portion of the
Forced Road that is shown as Part 4. Under no circumstances should the
Municipality close and convey that portion of the Forced Road shown as Part 4.
This would potentially prohibit the owners of 4855 Concession Road from
accessing their property as they have for decades (over a public road) and it
would expose the Municipality to a claim for damages.
4.3 Staff cannot recommend OPTION 1 described in Section 2.1 of this Report for
reasons set out in Section 4.2 above.
4.4 Staff cannot recommend OPTION 2 described in Section 2.2 of this Report. The
only reason that the Municipality would want to buy any property would be if it
wanted to expand upon the usage of the Forced Road either by widening it or
installing services under it. There is no intention to do either.
4.5 Staff cannot recommend OPTION 3 described in Section 2.2 of this Report for
reasons set out in Section 4.2 above and because there is no reason that the
Municipality should pay to construct a new driveway to service one property (4855
REPORT NO.: LGL-012-13 PAGE 7
Concession Road 6) to replace a public road that provides access not only to that
property, but also to possible future houses on 4870 Concession Road 6
(currently owned by Charles Ibbitson) and the property fronting onto the Forced
Road that is currently owned by Kenneth Wright (see Attachment 5).
CONCURRENCE
5.1 The Director of Engineering Services and Director of Operations concur with the
recommendation in this Report.
CONFORMITY WITH STRATEGIC PLAN — Not applicable.
Attachment 1: Letter dated November 8, 2013 from Jo-Ann and Peter Mian
Attachment 2: Plan 40R-15830
Attachment 3: Delegation of Robert McDonald
Attachment 4: Delegation of Joseph Sinacori
Attachment 5: Map of 4826 Concession Road 6 and Surrounding Area
Persons to be notified of Council's decision:
Jo-Ann and Peter Mian
Rob MacDonald
Joseph Sinacori
ATTACHMENT NO. 1 TO
REPORT LGL-012-13
November 81h, 2013
Clarington Municipal Council Members
C/O Mayor Adrian Foster
40 Temperance Street
Bowmanville Ontario
L1C 3A6
Dear Mayor and Council Members,
We respectfully ask to have this item included in the upcoming Town Council Meeting scheduled for
November 18t",2013:
Our Request
We request the municipality remove the Forced Road designation to our deeded property(Plan 4011-
15830;Part Il). This request comes from our concern regarding unobstructed use of our property by
some local residents who travel at excessive speeds past our home and the associated safety and
liability concerns to us. Our intention is to gate our driveway;thereby eliminating our safety concerns
and reducing our liability.
Sequence of Events
On May 10th,2013 we purchased our home at 4826 Concession 6 in Newtonville. At the time of
purchase we did not know the property included a dirt road.
On May 26th, 2013 we did a walk-through of the property and had an opportunity to visit with the
previous home owner, Lorraine Wright. Lorraine advised us that our purchase included a dirt road to
the south side of the property.
On July 19th, 2013 at approximately 6PM we met with our real estate lawyer, Mark Woitzik to sign the
purchasing documents for our new home. At that time,we were not provided with a copy of the title
or deed.
i
On July 22 d, 2013 at approximately 5:30PM Peter received an unannounced visit to our home by Mr.
Murray Devitt,Operations Supervisor- Municipality of Clarington. Mr. Devitt advised Peter that he was
going to remove 2 signs that read,"Private Driveway No Trespassing" (see photograph 1)which had
been posted at the east entrance of our dirt road off East Townline Road and in front of our house in
1999 by the previous homeowner Ken Wright. Mr. Devitt explained that although the dirt road is
private property, it is seasonally maintained by the municipality. Mr. Devitt advised that if we had any
questions we should contact the municipality.
Page 1 of 4
IVATE PRIVATE
DRIVEWAY DRIVEWAY
NO NO
TRESPASSING TRESPASSING
On July 23`d, 2013 at approximately 10AM we contacted Mark Woitzik to inquire about securing a copy
of our deed as well as confirm the disposition of the dirt road. Up until this point we had not received a
copy of the title or deed from our lawyer.
On July 31",2013 at approximately 1PM Mark Woitzik asked us to supply photographs of the road
stemming from the intersection of Gilmour Road/Concession 6 and East Townline Road/Concession 5.
The purpose of these photographs was to establish that from either direction leading to our property
there were clearly posted signs reading, "No Exit" (see photographs 2,3&4).
On August 16th, 2013 Mark Woitzik advised us that as owners of the dirt road we could close it as quickly
as we wished. Out of courtesy to the local residents living on East Townline Road, we posted signs
alongside of it advising them that the road would be closed in 30 days on September 16th(see
photograph 5).
In addition, Mark Woitzik prepared a letter to the occupants of a home located on the south side of our
dirt road(4855)advising them that access to the road would be closed off and that they would have to
access their property from East Townline Road(see document 1).
On August 23"',2013 at approximately 7:30AM,Jo-Ann and our three children received a second
unannounced visit to our home from Murray Devitt. Subsequent to which there has been an exchange
of correspondences with the municipality.
On August 28th, 2013 the occupants of the home located at 4855 received the aforementioned letter
from Mark Woitzik via Purolator Courier.
On August 29th, 2013 we received a letter from the municipality(dated August 27th)advising us that if
we proceed with gating the road the municipality will commence legal action to remove it.
On August 29th—30th, 2013 we consulted with Mark Woitzik and Real Estate Litigator John Rowinski
regarding next steps. At the conclusion of the meetings,the following was established:
Peter and Jo-Ann Mian are the physical owners of the dirt road identified as Plan 40R-15830; Part II in
both the deed and title. As such we are liable for anything that happens on that piece of our property.
The Forced Road designation to that piece of our property dates back to a time when farmers needed to
use that dirt road for the purpose of accessing fields. Currently,there are no farmers in the area that
require access to our road.
The situation as it currently stands poses a legal paradox;which the Title Insurer will pursue on behalf of
the property owners.
Page 2 of 4
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From: Mark Woitzik <woitzik @rogers.com>
Sent: August-27-13 9:01 AM
To: Jo-Ann Mian; Peter Mian
Subject: mian.doc
August 27,2013
Occupant
4855 Concession Road 6
Newtonville, Ontario .
LOA 1JO
Widrout prejudice
Dear Occupant:
Re: Peter Andrew Mian&Jo-Ann Mian
4826 Concession 6 Road,Newcastle, Ontario LOA 1 JO
Please be advised that I represent Peter Andrew Mian and Jo-Ann Mian,the owners of 4826 Concession 6
Road,Newcastle, Ontario LOA l JO.
I understand that you have been accessing your property over a private road owned by my clients. The title
search confirms that you do not have a right-of-way over my clients property.
I further understand that the previous owners advised you that at some point this road you currently have been
using would be closed and you would be required to incur the expense of installing your own access to
Townline Road.
Be advised that effective September 15, 2013, the road will be gated and your access will be limited to
`rownline Road. Effective, October 1, 2013, my clients will be closing the private road permanently and your
access will no longer be permitted-Any-access-o-ver-this-road-after-October-A-2flJ3-will be-considered
trespassing.
Yours very truly,
Marls Woitzik
i
A few local residents who reside on East Townline Road use the dirt road out of convenience to travel
to/from their homes. This road is not accessible during the winter season. During the winter months
those residents must travel a short distance south to Concession 5,which is paved and maintained year
round by the municipality.
To avoid both costly and lengthy legal proceedings our lawyers advised us to seek resolution through
City Council as a first step;which is why we have requested to meet.
What Brought Us Here?
When we decided to move our family from the city we looked for a home in Clarington that would
provide us with both beauty and serenity. After a lengthy search we found our new home in
Newtonville. We could never have imagined the issues that would surface 3 days after we moved in.
When we purchased our home on May 10`fi,2013 we did not know nor did we care to own a road.
Murray Devitt's unannounced visit to our home on July 22nd at 5:30PM brought to light a number of
significant concerns that needed to be addressed.
Living beside a dirt road that sits no more than 23 meters from the front step of our house with a posted
speed limit of 50kms per hour poses significant safety and liability concerns to our family. As a
comparison,school zones in Ontario have designated speed limits of 40kms per hour on fully paved
roads with traffic devices. Our road is a narrow dirt path riddled with numerous potholes that in our
opinion should be travelled at no greater than 15kms per hour. In addition,the male resident of 4855
has adopted a routine of walking his two German Shepherd's past the front of our home while our dogs
are on the front lawn. On several occasions,the male has had difficulty restraining his dogs as they pass
our home. We are deeply concerned that one day the male will lose control of his dogs and cause harm
to either our family or pets.
Based on the current circumstances, our children;Tyler(age 12),Saxon (age 10)and Breanna (age 7)
are safer playing on the road in front of their schools than they are playing in front of their own home in
rural Newtonville (see photographs 6, 7&8).
Our Proposed Resolution
As we continued our research into this matter a number of documents were brought to light reinforcing
the property identified on Plan 40R-15830 Part II is private property and that the municipality has not
maintained that-piece-of_Land-prior_taJL LTDf19Wsee_doeumAent 2-"urther-this-document-cle-ar-ly
illustrates that the dirt road leading from the front of our house to East Townline Road is in fact our
driveway.
The only local resident who currently requires use of a small portion of our driveway to access their
property is located at 4855. As confirmed by title search,the owner of this property does not have
right-of-way over our driveway.
Page 3 of 4
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Council,we would like to resolve this matter as quickly as possible and focus on enjoying our property
and community. Our intention for the short-term is to gate our driveway from the east end of our
property to the foot of the existing entrance of 4855. Considering the immediate impact this will have
to the residents of 4855,we are willing to rent that portion of our driveway to them for a monthly fee
(to be determined by our insurance company) until such time that they can construct their own
driveway from East Townline Road to a maximum of 12 months;after which we would move the gate to
the edge of our driveway at East Townline Road.
Under the circumstances we believe this resolution to be fair and advantageous to both parties
concerned. We are open to alternative resolutions from Council that will alleviate our concerns and
ensure our rights as property owners are protected.
We welcome you to visit our home so you may better understand and experience our concerns. We
respectfully ask for an expedient resolution of this matter.
Yours truly,
o- nn an. Pe ian
4 6 Concession 6
Newtonville,ON
LOA 1J0
Cc: Mark Woitzik
John Rowinski
Stewart Title Insurance Company
Page 4 of 4
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ATTACHMENT NO. 3 TO
REPORT LGL-0012-13
Mr. Mayor and council
Good evening, and thank you for this opportunity to address council and bring forward the
concerns and opposition, of the local residents, concerning any proposal to close the forced
road across Lot 1, at the eastern end of Concession 6, in the former township of Clarke. No one
seems to be sure when this forced road, which traverses, Lots 1, 2 and 3,was opened, but we
do know that it's shown on the Tremaine's map of 1861, so we know it predates Confederation.
This road was forced by the early settlers of the area, to allow'them access to the Hope/Clarke
boundary, and to the hamlet and mill at Decker's Hollow. Our ancestors were hard working and
industrious people, but they certainly weren't stupid, which is exactly why the road was forced
instead of following the road allowance. Had they followed the road allowance, they would
have had to build two bridges to ford the Ganaraska river, and a small tributary to get to the
Hope/Clarke boundary, and then another bridge would have been required to span the river, as
they headed south on the boundary.All of this,because the river meanders south east as it
leaves Clarke and enters Hope, Not only did these insightful settlers save themselves a lot of
work, and provide a shorter route to their destination, their foresight saved future taxpayers a
very large sum of money,by us not having to maintain and replace the three aforementioned
bridges. Is it irony, that the very forced road built by our ancestors, is what in all likely hood,
created the severance for the lot, on which the Mians,who want the road closed,now reside?
Me thinks,those that went before us, would not be amused!
I have with me to present to council, a petition signed by local residents, all of whom live
within proximity of this forced road, in opposition to any closure of this road to the general
public. Worth noting, is that not one household approached for a signature to this petition,
declined! In fact some were almost irate in their opposition, to the suggestion of it's
possible closure! Also noteworthy, is the fact that at least four of the signatories on this
petition are descendants, of settlers that acquired their land from the Crown in this
.neighbourhood, of which I am amongst, Our roots run deep, and many of us have a strong
affinity for the land, traditions and our rural way of life! While many others on this petition
have lived their whole lives in our environ,with the exception of Eldorado's little scheme in
1986, we haven't had any neighbour issues, and newcomers have always been made welcome.
When I encountered Mrs. Mian,we had an exchange of ideas regarding the ownership and use
of the forced road.At that juncture she informed me that her lawyer, was at that time, working
at having the road legally closed,As we now know Mr,Allison, the municipality's lawyer,had
to school their lawyer, on the subject of forced roads, and their lawyer couldn't legally
ccomptish thenobjestivet P-art o£the-i-ron.y-of that=attempt,—is that their-lawyer`s-courier-used
the very road that the Mians feel is unnecessary, to deliver the premature, and not legally
binding notification to the occupants of 4885 Cone.Rd. 6, informing them that they could no
longer access their property from the forced road!
Having spoke to Mr.Allison, it seems his position is that the municipality should keep this
forced road open, allowing the general public to have the use of it. The municipality has to my
knowledge, always maintained it on a seasonal basis.Apparently the municipality continues to
have access and rights to the forced road by maintaining it. A couple of years ago when the
culvert at the eastern end got swept away, it was not the property owners that installed the new
culvert and all the truck loads of gravel! In the event of any kind of emergency, given the
distance to Police and ambulance services,the fire department are our first responders. If this
forced road is closed and the fire truck has to travel around, via Cone. Rd, 5, to respond to an
emergency at any of the addresses at the eastern end of Concession Rd. 6, or on the Clarke side
of the Hope/Clarke boundary, it adds 2 - 1/2 miles, and two more stop signs, to their response
time! Who wants to be responsible for that lost time if someone dies, because of that additional
delay? When I raised this point to Mrs. Mian, her response - "not my problem!" I spoke to one
of Clarington's firefighters, who drives the fire truck,regarding their use of forced roads. His
reply was that they would always use a forced road when seasonably possible, if it's
the quickest route, because that 10 minute magic window, is their priority. The only exception
he said would be if it's gated and locked, because of the problems they've experienced with the
locked gate into the Newcastle service center on the 401,via Brownsville road. He said they
always go around, because they have had so many problems getting it open, or not being able
to get it open at all, and so much time gets wasted.
I've been told that the volume of traffic, the speed at which it travels, and their proximity to the
road are of grave concern for the Mians. I contacted Councillor Partner before the Mians had
even taken possession to which she can attest. The word was already out,that it was their
intention to close the road as soon as possible,after taking possession, It was not my bravado,
that put that information out there! Might I suggest,were the road closure that important to a
litigations individual, that said closure should have been made a condition of the sale.
That their lawyer ill advised them, shouldn't be our problem. They had to anticipate that there
would be some opposition to an attempted road closure, and if the dwelling was too close to the
road, and the volumes of traffic too high, that should have been taken into account. In other
words - Caveat Emptorl That the volumes of traffic are a concern, only reinforces the need for
this road to remain open! How can you have it both ways? The road isn't necessary,but the
volume of traffic on it bothers us! As for the distance their house is from the road, it's the same
distance as the day they purchased it, and it has to be at least 50 feet. There are thousands
of dwellings that are considerably closer to highways, were the volume of traffic is hundreds of
times more, at far, far greater speeds! One thing Mrs Mian repeated to me several times on that
occasion,was that she didn't like people driving by at "mach 3", which might be a little bit of
an exaggeration, as this is 2284 M.P.H. I would hazard to guess,that given that state of the
forced road that 20 M.P.H. would be a speed that would be appropriate, but maybe someone
from council has had an opportunity to pass this way lately, and could share their observation,
so as to give the rest of council a neutral view.
Mrs. Mian informed me if she couldn't get a road closure,her contingency plan was to plant a
tall hedge to protect her children and small dogs. I understand her need for security and
privacy, but she has a huge back yard, of probably an acre, and 25 acres of woods. Surely they
ought to be able to keep them safe. The people just up the road use invisible fencing for their
dogs, and are very happy with it! Dogs in Clarington are not allowed to run at large, and since
their dwelling is right at the edge of their property, their dogs they have to restrained in some
way, so as to prevent them straying on to all three of their very immediate neighbours
properties. As for her children's safety, I suspect that since they apparently carne ftom an urban
area, that their probably not without some street smarts.To my knowledge none of us had to
resort to chaining our children to protect them from traffic. She also mentioned liability
concerns, for people using this road, and certainly this could be something Mr,Allison could
speak to, but the common sense part of me suspects, with the amount of forced roads in this
province,their must be legal safeguards for forced road owners. Conversely,they could
convey to the municipality the deed for the forced road, as apparently happened on Lots 2 & 3.
Then there would definitely be no concerns of liability on their part. You can't be liable for
what you don't own! I would be curious to hear fi-om the municipality the number of liability
claims they've received regarding this stretch of road, in the last two hundred years. There are
presently signs stating that it's a seasonal road to be used at your own risk.
The Previous-owner received a building permit under the premise that the forced road was their
driveway where.it reached the Hope/Clarke boundary, at the very eastern limit of their property.
They built their dwelling on the very western extremity, 1/4 mile away from their access,
adjacent to the seasonally maintained portion owned by the municipality. They never used their
so called driveway, always accessing their house from the municipality's road. Then they
wanted the municipality to upgrade and maintain year round,the seasonally maintained portion
coming to the western edge of their property. We don't want the road closed, but if your going
to, shouldn't it be closed at the eastern end of the municipality's road, forcing them to use their
driveway and access to the boundary? Since it appears the new owners also access their house
from the municipality's road, not using their so called driveway, this probably will not be
amenable to them as they'll have to travel around, as they expect everyone else to! Their
driveway goes to east, to the boundary. They didn't get an access permit for the west end of
their property, because that road is not upgraded. Their access was and is to the boundary and
again it seems they want it both ways! Why is that their driveway accessed the boundary,yet
the address has always been Cone. Rd, 6, if it isn't a road? How long until the present owners
want the rest of us to pick up the tab for upgrading and year round maintenance of our road, to
their property edge?Their next door neighbours upgraded that same road to their driveway, at
their expense,to get an access permit.
A hundred years ago, none of our ancestors, in their wildest dreams could have forecast that
which we take for common place today. What will the requirements of the municipality in
regards to roads be in 25, 50 ...100 years?We can only guess, and likely not very well. I believe
leaving this road open is certainly sounder long term planning, than to even consider closing it.
The cost in the future to put a road through utilizing the road allowance, clearing the forest,
having environmental assessments and constructing the required bridges would be
astronomical,-by comparison—to_having-to-upgrade-the-forced road.-I'm-assuming-a-counciLof
the future would probably view a closure now, as fiscally irresponsible, short sighted and
putting the wants of a miniscule minority ahead of the long term best interests of the
muniepality, and the community at large! From a historical perspective, we understand why the
forced road was opened, and most importantly in the present, the residents continue to use this
as a thoroughfare with very little cost having to be borne by the municipality. It seems the only
costs are the annual grading, and cutting the roadside vegetation bi-annually. Thank you
for your time. Are there any questions?
We the undersigned would like the forced road at the eastern end of
Conc. 6, in the former township of Clarke, to remain open for the use of
the general public. This road was opened by the very early settlers of
our township, and predates Confederation.
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ATTACHMENT NO.4 TO
REPORT LGL-0012-13
Presentation to Council
Good evening, my name is Joseph Sinacori and I reside at 4855
Concession Road 6,Newtonville.
On July 19,2013 the Mian's moved into the property at 4826
Concession Road 6. Prior to them arriving some of the neighbours were
already telling us that they-were planning to close the section of
Concession Road 6,from their driveway to the East Townline Road.
This had already been tried by the previous owner, Mrs-. Ken Wright,
She attempted to.block the road with a couple of cedar logs, The
Municipality was called and,the.logs were quiekly•removed.. Mrs.
Wright was informed that she could not block the road.
Shortly after the Mian's moved in they posted signs indicating that the
road would be blocked and gated by September 16, 2013. Please see the
attached photos. Items number 1 & 2. We received a letter from their
lawyer, Mark Woitzik, dated August 27, 2013, indicating all of the
particulars and that the road would be permanently closed by Oct 1,
2013 and that we would have to incur the expense of installing our own
access off of East Townline Road. Copy of this letter is attached. Item
number.3
We considered this a very threatening letter and immediately contacted
the Municipality and explained the details, Mr. Andrew C. Allison, the
Municipal Solicitor responded to us in a letter and copied the Mian's
and their Lawyer. The letter states as follows: Copy of this letter is also
attached. Item number 4-A & 4 —B.
Re: 4826 Concession Road 6,Newtonville
Our FilelNo:_L20�
An issue has arisen respecting this property. When a representative of
the Municipality's Operation Department attempted to speak to the
property owner on August 23, 2013, he was given your business card by
Jo-Ann Mian and told that all future communications should be
directed to you.
The owner of this property [Peter A. Mian] has posted notices on either
end of the property stating his intention-to close and gate the "privately
owned road" that runs through it. A picture of the notices is enclosed.
Items number 1&2
I am writing to advise you that the "privately owned road" is in fact a
forced road that has been in existence for more than 150 years, It has
been maintained by the Municipality of Clarington, the Municipality of
Port Hope and their predecessors for many decades. A portion of the
road west of Fast Townline Road is winter maintained by Port Hope.
The balance of the forced road is seasonally maintained by Clarington.
A copy of a map from our internal GIS database showing the forced
road and the surrounding property boundaries is enclosed for your
reference. Item number 5. Also enclosed is a copy of a reference plan
prepared in 1993 that clearly identifies the forced road. Items number 6
& 7.
As you are likely aware, forced roads are common in Clarington and in
many other areas of the Province, Paper title to a force road does not
give the property owner the right to "close" or "gate" it, The portion of
Concession Road 6 that runs through your client's property is a
"highway" under the Municipal Act, 2001. Please be advised that if
your client installs a gate, the Municipality will commence legal action
to remove it. -
I would be pleased to discuss this matter with you at any time.
Sincerely,
Andrew C. Allison
Municipal Solicitor
ce, Fred Horvath, Director of Operations
Peter A Mian
From my knowledge of forced access roads and from what the sawyer
has confirmed they are open to all and are considered "highways".
Historical fact states that this road has been open for over 150 years. It
is also for farm-use.
2
One must also note that the hydro lines are this road and that Ontario
Hydro needs access to these lines. I myself called Hydro a couple of
years ago to remove a tree that had fallen on the lines,
A few years ago during a rather harsh rain storm the culvert between
our property and East Townline Road and a small portion of the road
west of our driveway washed completely away. It was the Municipality
that immediately came and repaired it.
Trucks of all sorts have used this road to deliver services to our
property and even the police have.driven down this road on their tours.
There is another property between our property and the Mian's at 4870
that would be land locked if this road was to be blocked/gated. This
property is owned by Mr. Charles Ibbottson. I doubt that Mr.
Ibbottson has been notified about this issue since it would greatly affect
his property.
We have been given very little DUE NOTICE regarding this issue being
put to Council with a possible motion to close the road. I was informed
of this meeting and the issue of the Force Road on the agenda
informally by Mr. Robert MacDonald who also found out informally.
There was no DUE NOTICE of something of this importance.
Voting to gate this highway would set a precedent all across Ontario
where every farmer that has a forced road through his property could
do likewise and then what would happen?
I feel that this Council would leave itself open to many legal actions if it
gated this road.
I also feel that the Province and the Federal Government night have
something to say about the Municipality gating a portion of legal
highway on the request of one owner,
I feel that Council would be going against the advice of its own lawyer if
it allows this to occur.
I would like to suggest that Council follow the advice of their Solicitor
and cease any further action on this issue.
Another fact that I was informed of is that any forced road that is over
10 years old automatically becomes permanent after this period of time.
Hence I fail to see why this issue is even before Council.
.Another fact is that the hydro lines run up this road.
A present our mailing address is Concession Road 6 and our mail box is
about 0.8 kilometers from our home. Is this Council going to change
our direct route to our mail box and force us to go 10 kilometers to get
our mail?
Access to this road is the most direct route to my spouses' place of
employment.
I would like to suggest that it would be very impractical and unwise to
allow this to happen and open this Pandora box.
I have also enclosed a copy of part of the survey of the area in question.
This survey is dated 1993. This survey indicates that this is a traveled
road and that entrance to the property is on this road.
There is also a question of policy of conveyance. When Mr, Wright
built his home at 4826 he did not own the section of road that is in
question. He informed me years ago that he bought it afterward.
In closing I would just like to say that I have consulted with the MPP,
Mr, John O'Toole, regarding this issue and have also given him a copy
of this presentation.
Thank you for your time,
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BARRISTER Bt SOLICITOR 6••a•r:iG�.N"�"
August ??, 201.3
Vida Vaitickuntas
4855 Concession Road G
Ncmooville. Ontario
.0A.1 JO
Dear Ms Vuitickunas:
Re: Peter Andrew Mian S: Jo,-Ann \Tian
48:6 Concemion 6 Roud, Nvtivc:astic, Ontario UJA 114?
Please be advised that I represcnt Peter Andreas Mittn tuid Jo-Atm Mim the o ncrs(W
,1826 Cutwession 6 Road, Newcastle,Ontario LUA I A
I understand that you h<avu burn accessing your proNrty over a p lvaw road owned by
my eli ell Is. The, title canlir-ms that yoil del neat hart!to right-of-%lay saver Illy cli>:nt1
property.
I further understand that the priviouti o«7ti s advkcd you that at some pint this road you
currently have bom using would lie elo:red and you would be required to incur the
expense of installing your own at4i'SS to Townline Road.
Be advised that e;fTectivc September 15, the road will lv pted and your aecess will
tie limited to Townlirrc Road. l:ticctivc, (lc ONT 1, 201 a,ttty clicrtls will be closingg thi:
private mad purmtanuntly and your access will no longer he pv^rnii(ted, Anti'access;over
this t)d ad after Uoober 1, 301 1 will be considered trespaawsing.
1rr1 Yc'ry truly,
,t
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�1r9s,rlc 'Sdtza
WWW-DkJA •aAMLAWYER,CA
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Barrister atti Saicitoy
:rte')Brock 5trazx Sourh
*1111by,C-3nwio
t,l p:A2.
Dtar Sir.
M, 4826 Ctonaescion Road G,Vo1Num itle
Out Pik No:L-24S0 4740
An ism-,]As arias respco&.;this pnjpcyty, V,ham:arsprt:�:�lthive of the:�'��n:G�aatitv's
Opataticir131.�+epaxtrucntatteinptcd to spry to d1e luo�rZy a�raar an Aurlsst?i,2rJ 3 S,1ie ws�
W%-=yourbusiam cord by Jo-Am l%fisn.and.rold INIt Ali locum otnimn nication, A; ujd N
di:ea-ed to y-ou.
The oNwr of tips-';YopuAy Wetczk Nf:aa)has pc mm,natices on either end of t1;is prupmy
5tstit0 his izt;artiuzl to alMc and Pw the` Zt.vR$.y ownod road"tbat runs tJ•ywgh it. A pie=
of the mike is wc-oscd.
!tin writ 4 to Wviso you that the'`priumcly awned road' is to facts fmved.mad that bus bva
is existence Aw muro than 150 yetrrs, It has beat maidmipAa by The(vituicipaUty of tbt'4gma,
60 MuviClpaHty of Port Hope,tmd tl>vir prcdocesu)m foy and deck(:s. A portion of tilt;triad
'x-st of Em 5OM411ine Kcad is% inwr maimas nod ay Pon Hope, Tho balance of the fim d me4
Is 508sonslly'rmtrigWand by Clsrington. A,copy a#'a map front out ituemal(ii,S d�qub=
Sl'OWing the forced ttoul avid the mmo=ding proNny houndad s is enclosed or you ztif01enw.
.,Use onolosod b�a copy of P.rof wow p)w rcpm-ed in 1993 that claUly idjif, t.'ib krccd
roan
As you are likely Aware,forced:earl.¢am cormoa in C.laringtob and'sn(nxm Qtbt3'was of the
P;%ViAw. Finer title to a forced read does net gitu The peopa ty uv my the riot to-0106d,a.
_p Wit.it. Tho portion of C:imosgun Road'b't7w runs tbmugh your c kit's properlw is s
`• "bighvt�a}�'unrlex cbr-.�ren�cf}xtt-�r:t,-204 . );?lrsse l�odri?txitlusi ify�a:clit:ttinst:ti st,_p_ _ _ _ _ _ _ _
t:e makip ity-v1riu cammemce I%W nation to mmol;e it.
CORPORATION OF T14E MUP110IPALITY OF CLARINt TOM
4C 7 EMPERANCI:SMMT, BOWMANVIL:L, ON77MUO 1.1R°!Ra 7 9U3•d23 33 rg
Lstterto MatkWph -k•AuSu t z7,2W Pue
I vMula'a plea.S0.1 co d wm%this nwrftcr Ndth you at any timr. RR
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t�unicipa!�oiici'rar
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ATTACHMENT NO. 5 TO
REPORT LGL-0012-13
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