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HomeMy WebLinkAboutCLD-028-05 Cl!Jl_n REPORT CLERK'S DEPARTMENT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: September 6, 2005 Report #: CLD-028-05 File#: By-law #: Subject: M.A.H. POSITION ON LINE FENCES AND ABANDONED RAIL RIGHTS OF WAY RECOMMENDATIONS: It is respectfully recommended that the Council approve the following recommendations: 1. THAT Report CLD-028-05 be received for information. Submitted by: "" Reviewed bQ ~~ Franklin Wu, Chief Administrative Officer LC.ct CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOW MANVILLE, ONTARIO L 1 C 3A6 T 905-623-3379 F 905-623-6506 REPORT NO.: CLD-028-05 PAGE 2 BACKGROUND AND COMMENT The Association of Municipalities of Ontario (AMO) has circulated a discussion paper on the Provincial Government's position regarding fencing along abandoned rail rights of way which have been purchased for conversion to trail systems. At first glance these rail lines offer an excellent opportunity for local municipalities to expand their recreational walking and biking trails. The rail beds are broad and relatively flat offering easy access for a wide variety of users. The problem for the municipalities has always been one of fencing these lands. Currently the Line Fences Act states: "20 (I) Where land that was formerly used as part ofa line of railway is conveyed in its entire width by the railway company, (c) to the Crown in right of Ontario, a Crown agency within the meaning of the Crown Agency Act or the corporation of a municipality where the Crown, Crown agency or corporation, as the case may be, is not the owner of abutting land, the Crown, Crown agency or corporation is responsible for constructing, keeping up and repairing the fences that mark the lateral boundaries of such land. R.S.O 1990, c. L.17, s. 20 (1)." Municipal policies regarding fencing cannot supercede this requirement. Section 98 of the Municipal Act states, "(1) A local municipality may provide that the Line Fences Act does not apply to aU or any part of the municipality. (2) Despite a by-law passed under subsection (I), section 20 of the Lines Fences Act continues to apply throughout the municipality." As a result, the local municipality now becomes responsible for the entire cost of construction and maintenance for fences along a potenially vast area of land. This past spring the Province and the Minister of Municipal Affairs and Housing held meetings with various stakeholders and commissioned a report by Dr. Wayne Caldwell, of Caldwell Consulting to determine how best to deal with the concerns of both the abutting landowners (primarily farmers) and the local municipalities. Municipal concerns centered on cost of construction and maintenance for fences in areas where it had been determined that no fence was previously required when the railway was active, liability issues surrounding injury from the fences should they become broken or damaged, potential frivolous demands for fencing in unneeded areas and, given the high cost of fencing, the requirement for a hierarchy of needs that could be established province wide for establishing levels of fencing and criteria for installation. CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T 905-623-3379 F 905-623-6506 REPORT NO.: CLD-028-05 PAGE 3 The agricultural community demanded a say in the type of fencing to be erected, the need to protect and secure livestock, prevent vandalism to crops, reduce or eliminate theft and provide Biosecurity for livestock and crops and unrestricted access to the trails to access otherwise landlocked parcels of farmland. The agricultural community was adament that it was not interested in sharing the costs for these fences. Among its first recommendations, the Caldwell Report dismissed changes to Section 20 to allow for a sharing of fencing costs between the local municipalities and the agricultural community. The remainder of the Report is devoted to ways for the municipalities to make the current system work. The Report rejects any involvement by the Province in creating standards for needs or maintenance of fencing, leaving that to local municipalities to decide. The Report does recommend the creation of local landowner fencing committees to determine the nature of the fences to be built and the criteria for requiring them in the first place. In effect, each municipality is left to reinvent the wheel to fit their local needs. The Report did suggest that the Province may offer "a limited amount of money" for formulating a local fencing strategy and to cover only certain portions of the actual fencing costs. The recommendation for user fees for all who use the trails made little practical sense. An entire new system would be needed to track users of the trails, establish fees, collect the fees and enforce the fee requirements. There is also a recommendation that the trail owner (the municipality) could or should obtain liability insurance coverage for the trail and provide this, by extension, to those landowners abutting the rail lines. ASSOCIATION OF MUNICIPALITIES OF ONTARIO'S POSITION AMO's postion is diametrically opposed to that of the Report. The Association believes that there is at least a joint benefit to the municipalities and the agricultural community, if not a far greater benefit to the agricultural community over the local municipality. One possible scenario is that municipalities may simply refuse or decline to purchase these rail beds, thus losing their community use. It is the Association of Municipalities of Ontario's position that Section 20 needs to be amended so that this matter falls under the authority of the Fence Viewers and the Referees in the same manner as any other dispute over fencing. To quote AMO, "The Ontario economy stands to lose, as municipalities will not purchase rail lines and build trails if the ongoing costs are prohibitive." The position taken by the Association of Munic~alities of Ontario is fully supported by staff. In order to meet the Ministry's deadline of July 29 for comments, a letter has been sent indicating support of this position. A copy of that letter is attached for information. ATTACHMENT Letter to the Ministry of Municipal Affairs & Housing CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T 905-623-3379 F 905-623-6506 CllJl.:pn ATTACHMENT # I TO REPORT #Of) ()~ '^' I'r=, July 25, 2005 Ministry of Municipal Affairs and Housing Municipal Governance and Structures Branch S20 Line Fences Act Report Comment 13th Floor 777 Bay Street Toronto, ON M5G 2E5 Attention: Ruth Melady, Senior Policy Advisor Dear Madam: ~(Q)[FDW RE: CALDWELL REPORT LINE FENCES ACT AND ABANDONED RAIL RIGHT OF WA YS I am writing to you in regards to the above noted issue. Staff has reviewed Dr. Caldwell's Report. The financial implications for the municipality are to say the least, onerous. Staff is in agreement with the position taken by the Association of Municipalities of Ontario that continuing to require the local municipality to pay 100% of the cost of fencing places an unreasonable burden upon the local municipality. Over the last few years municipalities have been encouraged to purchase these lands for use as walking and hiking trails. The recommendations in Dr. Caldwell's Report are counterproductive to that desire. In all other areas, the Line Fences Act allows for a fair and equitable sharing of the costs for the construction and maintenance of the fencing. The Municipality of Clarington believes that this same principal of cost sharing should be extended to include the abandoned rail rights of way. Respectfully yours, Patti L. Barrie, A.M.C.T. Municipal Clerk PLB*ct CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T (905) 623-3379