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Home My WebLink AboutPD-194-88 DN: 194-88 03 TOWN OF NEWCASTLE Vv REPORT File # Res. #C t)f1 t� € By-Law # MEETING: General Purpose and Administration Committee DATE: Monday, October 3, 1988 REPORT #: pD-194-88 FILE #: PLN 10.2 SUBJECT: WILMOT CREEK ENCROACHMENT ON TOWN ROAD ALLOWANCE I it RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PD-194-88 be received; and I i 2. THAT Ridge Pine Park Inc. be instructed to remove all buildings and structures from the road allowance between the former Townships of C Darlington and Clarke within one (1) year; and i 3. THAT Ridge Pine Park Inc. and the Solicitor for Professor James P. Lovekin be advised of Council's decision. 1. BACKGROUND: 1.1 In May, 1988, the Town received a letter from the solicitor for Professor James P. Lovekin advising that a preliminary survey of the road allowance between the former Townships of Darlington and Clarke south of Highway 401 indicated various encroachments onto the road allowance and requested the municipality to remove the encroachments. . . .2 REPORT 00. : PD-194-88 PAGE 2 ------------------------------------------------------------------------------- 1.2 The unopened road allowance is of significance to Professor Lovekiu since it potentially provides aoneoo to the portion of his lands lying south of the Ontario Hydro tcauamiaoiuo corridor. (These are the lands leased to Hydro and subleased to Ridge Pine Pack Inc.) . As a result, Professor Lovekio'a solicitor has requested the Town to remove the encroaching otcucLOceu from the road allowance. 1.3 It should be noted that it was the intention of the Town and Ridge Pine Pack Inc. to close the road allowance internal to Wilmot Creek development. Under the tocom of the Site Plan Agreement, the Town agreed to close, by by-law, those road allowances abutted on both sides by Ridge Pine garb Inc. This was done for the other road allowances ( within the development. The subject road allowance was not closed, however, doe to Professor [uvekiu"o ownership of the lands abutting to the east and his expressed desire to see the road retained in public ownership. By the time it was realized that Professor Imvekiu was not going to agree to the closing of the cnod allowance, one residential unit was constructed on lands within the road allowance. 1.4 The road allowance, as indicated on the preliminary survey provided by Professor [mvekiu'o solicitor did not correspond with the location of the road allowance as nbnwu on plans submitted by Ridge Pine Park Inc. . As a result, Staff requested Ridge Pine Park Inc. to provide a detailed survey to identify the exact location of the road allowance as well as encroachments on both sides. 1.5 The survey prepared by J.D. Barnes Ltd. on behalf of Ridge Pine Pack Inc. (see attachment) indicates that one house and the building material storage building eoocoaob on the road allowance. 2^ COMMENTS: 2.1 Staff have consulted the Town's solicitor with regard to this situation and was advised that no title to the road allowance can be acquired by adverse possession and that a municipality can require the REPORT NO. : PD-194-88 PAGE 3 _______________________________________________________________________________ encroachments to be removed. However, a member of the public cannot force a municipality to require the removal of encroachments on an unopened road allowance unless it could be proven that such a person has suffered unique damages. In this instance, the letter dated May 16, 1988 from Mr. Lovekin's solicitor advised that this road allowance provides the only means of access to a portion of the Lovekin's property. Therefore, the encroachment should be removed to ensure unobstructed access should this road allowance be opened in the future. 2.2 Having reviewed this matter, Staff feel that it is prudent that the Town require Ridge Pine Park to remove the encroachments. 2.3 In addition, the Town's solicitor also advised that the municipality is not required to verify title prior to the issuance of a building permit. It may, notwithstanding the issuance of a permit, subsequently require the removal of any encroaching buildings. 3. RECOMMENDATIONS: The removal of the encroaching structures does not appear to cause undue hardship since both the encroaching dwelling and the construction building are owned by Ridge Pine Park Inc. and the dwelling is vacant. In order to afford Ridge Pine Park sufficient time to carry out Council's instruction, it is recommended that Ridge Pine Park Inc. be given up to one (1) year to remove the encroachments. Respectfully submitted, Recommended for presentation to the Committee Franklin Wu LawqAdm Kotseff_________® Director of Planning & Development Chiistrativ e Officer JAS*FW*jip *Attach. September 14, 1988 CC: SEE ATTACHED LIST ly ��? REPORT 0D. : PD-194-88 PAGE 4 _______________________________________________________________________________ CC: Mr. Phillip L. Sanford c/o McCarthy 6 McCarthy Barristers & Solicitors P.O. Box 48 Toronto-Dominion Centre TORONTO, Ontario M5K 1E6 CC: Professor James P. Lovekio 3 King Street West P.O. Box 189 COL80DNB' Ontario KOK I80 CC: Mc. David W. Dice c/o Ridge Pine Pack Inc. P.O. Box 60, Group I, B.D. #1 NEWCASTLE, Ontario L0& 1B0 NnE F[NCE Np PART 8 G PVoC ENCROACHING BUILDING g� 0 to S n 0 C 4 ~ V < .Z D � r =_ o z n m I n..»0 O 'Tt � 0 m e z 8 0 WILMOT TR IL ana n z \ - y N y O N it 1 asp S O Y CHAMPLAIN --c COURT a ENCROACHING BUILDING r 6 Z o (teaw r O L�—J D -i � O u q Z m o � o m m .gs � o �R COURT CHAM,LAM yvy A r o Z SKETCH SHOWING °z LOCATION OF BUILDINGS IN THE ` VICINITY OF THE ROAD ALLOWANCE a� p BETWEEN THE TOWNSHIPS OF we DARLINGTON AND CLARKE IN o WILMOT CREEK PARK `r el« g ROAD BLUFfS ,«�6 G, SCALE o 1 w+1000 v o e w J.D.BANNES LIMITED,Survey— -1988 n b m ron METRIC DISTANCES.-ON TnS MAN ARE IN METRES IND CM BE CONVERTED TO FEET BY DIVINNO BY 03048 + I ONTARIO LAKE 'Jir(�� WED � o WILMOT CREEK SEP 8 '1988 TO WN OF NEWCA S E PLANNING DEpgRT�yENT September 7, 1988 Corporation of the Town of Newcastle 40 Temperance Street Bowmanville, Ontario L1C 3A6 Attention: Mr. Franklin Wu Planning Director Dear Frank: Re: Darlington-Clarke Road Allowance - Lovekin Please find attached two copies of the survey that we had done of the road allowance. It, indeed, does show one home encroaching into the road allowance, and our construction building encroaching as well . Please advise us as to your intentions. We remind you that three years ago when we became aware that Professor Lovekin was not going to agree to the closing of the road allowance, we realized that the home was built 4 metres into the road allowance, and we bought it back. At the present time we own the home and it is empty and not for sale. Yours tr ly, RIDGE I E PARK INC.I avid W. Rice RIDGE PINE PARK INC., P.O. BOX 60,GROUP No. 1, R.R. 1,NEWCASTLE,ONTARIO LOA 1H0 TORONTO:369-0000 NEWCASTLE:623-1466 A MEMBER OF THE RICE GROUP MCCART11Y Sc MC CARTHY BARRISTERS SOLICITORS P.O.BOX 46 PATENT & TRADE MARK AGENTS FACSIMILE NOS.(416) 868-0673 (416) 362-1812 TORONTO DOMINION BANK TOWER TELEX 06-217813 TORONTO-DOMINION CENTRE CABLE CARTAN,TORONTO TORONTO,CANADA MSK 1E6 OUR REFERENCE: TELEPHONE(416)362-1812 May 16, 1988 Mayor John Winters Town of Newcastle 40 Temperance Street Bowmanville, Ontario L1C 3A6 Dear Mr. Winters: Re: Road Allowance We are the solicitors for Professor James P. Lovekin who is the owner- of a property known as the west half of Lot 35, Concession- 1, Town of Newcastle. r We • have written on a number of occasions to various Town officials in an effort to determine whether the road allow- ance below Highway 401, between the former Townships of Darlington and Clarke-f remains in its original location. That allowance is of significance in that it provides the only means of access to a portion of our client' s lands. We do not appear to have received any replies from Town officials and the matter remains outstanding. Our client recently retained Mr. M.O. Brown, an Ontario Land Surveyor. That individual prepared and provided to our client a sketch which indicates various encroachments on the roadway. We are enclosing a photocopy of the sketch. We are instructed by our client, who is the abutting owner to the east of this roadway, to request that the munici-�:;'' pality require the removal of the encroachments:: To the best of our knowledge, there has been no change pursuant to the terms of the Municipal Act in the status of this roadway and unless there is such a change, the developer of the lands in the immediate it I MCCARTHY & MCCARTIIY - 2 - area is not entitled to treat the roadway as though it were private property. Yours very truly, McCAR!!!THHY & McCARTHY r S Per: t J Phillip L. Sanford PLS/kd cc: Professor James P. Lovekin I,I j