Council Reports: April 25, 2005

REPORT ON COUNCIL
April 25, 2005
Committee of the Whole Meeting: 9:01 a.m. – 4:16 p.m.
Regular Evening Meeting: 7:00 p.m. – 8:19 p.m.
All Members of Council present.

CONFIDENTIAL / CLOSED SESSION: 3:47 p.m. – 4:16 p.m.

ENCROACHMENT POLICY: The clerk brought in a report which is to serve as background for revision of the Encroachment Policy enacted on June 14, 2004. Reactions to staff actions concerning encroachments (including a series of deputations by George Lawrence, Chairman of Tiny’s Residents Working Together) have made it clear that different situations require different responses. This is an important report, and there is time to consider it, as an Encroachment Policy will not be presented to Council until June. For key sections of the clerk’s report, click HERE.

PARKING STRATEGY: Staff had been asked to prepare a report about the original parking strategy which was prepared in 1999 by Planning Partnership and about changes in the way parking along the shore was handled in the years since. No report had been prepared.
Absent a report, the Mayor asked Deputy Mayor Maurice to speak about the Parking Strategy from his experience on the previous Council. Confusingly, the Deputy Mayor spoke about the activities of the Parking Committee during the first year of the last Council’s term. He appeared to have forgotten that the report of that committee had been rejected by the previous Council, that that Council itself had then struggled with ways to assign parking spaces along the shore, had failed to reach conclusions, finally assigning parking spaces on the basis of a report from Herbert Proudley, then Manager of Public Works. That report allocated parking spaces according to one criterion only – safety. It ignored the extent of public beach available for use at each park.
At this meeting, the Mayor and the Deputy Mayor said that they opposed any major changes to parking arrangements. Specific issues, such as parking arrangements on Pennorth Drive, were not dealt with.
The official minutes of the meeting note that “the consensus is that the existing parking (permit and open parking) is adequate and that no major overhaul is required. The Committee agreed to monitor the complaints and inquiries over the summer and to revisit the matter in the fall.”
Our understanding is that at least two members of Council expect staff to prepare the promised report and that parking will be discussed at that point.

STRATEGIC PRIORITIES — COMMUNICATION: At its previous meeting, Council decided that the report of the consultant who had guided their consideration of Strategic Priorities had omitted the most important part – namely specific actions and target dates. They asked that discussion of strategic priorities be added to the end of Committee of the Whole Meetings.
At this meeting they spent an hour discussing ways to improve communications, among them hiring a communications expert, instituting a hotline, publishing a booklet or brochure to expand on issues addressed in the newsletter that accompanies tax bills, having staff track issues and volumes of complaints expressed in telephone calls, letters and e-mails.
Councillor Rob Panasiuk raised the problem of misconceptions on the part of the public and noted that underlying many of these was a fear of being left out of decision-making. He suggested that a page could be developed for the Township website where frequently asked questions might be answered and where the limit of the Township’s responsibilities could be set forth. Another possibility was to publish the long agenda (which includes reports) on the website. Substantial staff time might be required to expedite these suggestions.
The one decision that appears to have been made was that, beginning May 1, reception is to track calls and each department is to track e-mails (and responses), and a monthly report is to be prepared for Council.

WOODLAND BEACH RECREATIONAL PARK (i.e. STUBBS TRAILER PARK PROPOSAL): Council had before it the cost/benefit analysis of the proposed development prepared by Dr. Stubbs’ consultant and the review of that analysis prepared by the Township’s consultant. Dr. Stubbs’s consultant considered only the first stage of the development and found that a profit would accrue to the Township of roughly $5,000. The peer reviewer found that with the addition of the other three phases that modest profit turned into a negative number.
Council noted that households close to the development would suffer a range of annoyances, including loss of property value which would affect assessment and taxes.
All members of Council appear to be very concerned about the development although no formal poll was taken.
Now that they have considered the cost/benefit analysis, Council is to hear the joint deputation on the development proposal by the Federation of Tiny Township Shoreline Associations and Tiny’s Residents Working Together and to receive a planning report from staff. Only then will they decide whether to allow the development to move ahead.

WOODLAND BEACH COMMUNITY AGREEMENT PROPOSED: Gerry Miller of Gardiner Miller Arnold made a presentation on behalf of the Woodland Beach Property Owners Association saying that the issue of ownership in Woodland is coming to the fore in many ways (encroachments, signage, David Lambden’s land identifications, the new Zoning By-law), that many dispute the accuracy of the Township’s claims, and that they would like to work out a beach management agreement with the Township for the benefit of all households in the area, an agreement which would ignore the issue of ownership and which would be registered on title.

TOWNSHIP OFFICES TOO FULL: Centralization of all services into the Municipal Offices has resulted in overcrowding, especially in the summer when extra staff is hired on. A permanent addition to the Municipal Office may become necessary at an estimated cost of $500,000. In the short term, while the matter is being considered, Council approved the purchase of a temporary trailer. The recommendation of John Theriault, Treasurer, had been to lease, but Councillor Ray Millar who makes use of trailers in his business, persuaded the others that purchase and resale was the more advantageous option. The trailer is to be a winterized one, to house the 6 members of the Public Works staff, to cost roughly $8,000 and to be placed at the back of the Municipal Offices.

SOBEN PROPERTIES INC: TOANCHE SUBDIVISION: A number of issues have surfaced, among them–
• the offer of tennis courts in lieu of the 5% parkland requirement. Staff is to calculate the monetary value of the parkland requirement, and to get comparative figures for the kind of tennis courts offered (estimated at a value of $75-85,000) and the kind that would meet Township requirements. The siting of the courts within Toanche Park is an issue.
• a strip of the eastern edge of the park that Soben wants to use to augment its 2 lots there to 5. This strip appears to include the tobogganing hill, and recreation uses there will impinge on developed lots so a buffer strip is needed. There are liability issues.
• lots abutting the active ball diamond on the south side of the park. Again, a buffer zone is needed so that balls do not wind up in backyards. There are liability issues.
• the Toanche Parks and Recreation Association would like to be involved about anything affecting the park.
Soben was given a 6-month extension to finalize registration.

USE OF FIRE STATION BUILDINGS: Council approved Fire Chief Randy Smith’s recommendation that
–the Fire Chief be the authorization authority for use of fire stations
–use be limited to Township operations/business, Volunteer fire fighters and the OPP
–public access to buildings not connected to municipal water be prohibited
–security of buildings and fire apparatus be maintained at all times
–a fire department officer or a township employee be present to ensure building security during a permitted use.

WATER SYSTEMS UPGRADES: 5 upgrades are to be undertaken this year at Georgian Estates, Cook’s (Farlain) Lake, Lafontaine, Perkinsfield and Wyevale, at a cost of $849,000. The Township did NOT receive a COMRIFF grant. There is only a little of the O-STAR grant of $1.3 million left. The balance will be put toward this year’s works. There will be no impact on water fees this year. Georgian Sands, a more complex problem, is still outstanding.

SUBSTANTIAL INCREASE IN DEVELOPMENT CHARGES: A Development Charge is the fee that new development must pay “to finance the cost of new growth-related capital facilities and infrastructure,” namely library services, policing, fire department, parks & recreation, public works, the Huronia Airport Commission, general government, and roads. If you wish to build on a vacant lot, you will have to pay a development charge. If, however, you are replacing a structure, there is no development charge. The previous charge per unit was $2,093: the new fee is $4,172, which is lower than those of all our neighbours, except Tay.

WATERLOT LEASE RATES: Just beyond Penetanguishene’s harbour are five water lots held by property owners in Tiny Township. In the past these were leased, usually by marina operators, from the Federal Government. The government has downloaded responsibility for these to Tiny. The Township has discovered that the lease rates were inconsistent – anywhere from 36 cents to a $1.50 per square metre. Confronted with a similar problem, Penetanguishene averaged lease rates in its harbour, and arrived at a price of 37 cents per square metre. Staff recommended that Tiny use the same rate, even though that would result in roughly half the income. After a series of discussions, Council decided to apply a rate that was the average of the rates for the five waterlots in its jurisdiction, a rate higher than that in Penetanguishene. The individual with the lowest rate protested; the Ontario Marine Operators Association made a presentation about a different approach to water rates.
This has been a huge time-waster. At this meeting of Council, guided by Councillors Ray Millar and Rob Panasiuk, Council came to the conclusion that the sensible approach was to reject the “gift” and return the problem of rates and management and possible sale of the lots to Fisheries and Oceans Canada. The original rates are to remain in place for this summer. Staff was asked to prepare a report on the implications of returning the lots, and also to ascertain who has the responsibility for environmental cleanup and for liability issues.

 
Report from A. Ruth Coursey, CAO/CLERK re Proposed Encroachment Policy Changes

…BACKGROUND:

…. Where an encroachment is determined to be a public safety hazard and a public liability, it must be rectified forthwith, but within a schedule that is suitable to both the Township and the owner. Township staff makes the determination of a safety hazard and liability. If an agreement with the owner cannot be reached then the CAO and/or Council become involved, usually through an appeal from the property owner(s).

Buildings or significant structures are dealt with through an encroachment agreement where practical.

The vast majority of all other encroachments are dealt with in a compassionate manner to attempt to amicably remove the encroachment at some point in time, to all parties’ satisfaction. Our experience in Concession 1 indicates that in excess of 75% of residents are understanding of the concerns of the Township and cooperate to remove the encroachment, particularly on road allowances, as soon as they are able or agree to have the Township note them as a concern on the Municipal Search (LIS) whereby they will be rectified prior to the transfer of the property. It has only been a small number of residents (4 out of about 50 in Concession 1) who are not satisfied with the current process….

ANALYSIS:

An encroachment occurs when a property owner intrudes on, in, or under the ground space or in the air space of an adjacent Township-owned or managed property, either deliberately or inadvertently. Encroachment results from any use of such Township land by individuals for their own personal purposes. Encroachments may be structural (e.g., construction of decks, pools, wells, septic systems, docks, retaining walls etc.), non-structural (e.g., pool drainage, application of pesticides, waste dumping), or vegetative (e.g., planting of vegetable gardens, shrubs, trees etc.).

Encroachments are of concern because they:
(a) may restrict or limit the use and enjoyment of public lands maintained by the Township for the benefit of all residents;
(b) may pose a safety hazard to the public and give rise to potential liability claims from resultant injuries;
(c) may damage the natural environment and undermine the Township’s stewardship role in protecting natural features;
(d) may lead to claims of adverse possession and the loss of public assets;
(e) may destabilize public lands with resultant damage to adjacent private lands; and
(f) may result in ratepayers absorbing costs to restore degraded public lands.

While it is generally the policy of the Municipality to not permit any encroachment onto municipal land, in certain circumstances consideration could be given to allowing an encroachment to continue if an agreement is entered into between the adjacent property owner and the Municipality.

Criteria for considering the authorization of an Encroachment Agreement include:

The Encroachment
– Historically has been constructed inadvertently, contrary to applicable zoning regulations
– Is constructed on permanent foundations and is an integral part of a structure on private property adjacent to the municipal property
– Is structurally sound and does not constitute a public or private nuisance or a threat to public health or safety or to the environment
– Does not occupy municipal property shown as part of an existing or potentially continuous walkway or trail system under municipal ownership
– Does not occupy municipal property which has been reserved, dedicated or zoned for open space use or considered as parkland in the Municipality’s Official Plan or Zoning By-law
– Does not occupy municipal property which has been reserved, dedicated or zoned to provide public access to any of the Municipality’s beaches, lakes or other water bodies….


OPTIONS/ALTERNATIVES:

Opened/Public Road Allowances:

If the encroachment is a safety issue the property owner be requested to remove it within 30 days as noted in the current policy.

In the case of encroachments on an opened/public road allowance the encroaching party cannot acquire the property by virtue of adverse possession.

Unopened/Public Road Allowances:

If the encroachment is a safety issue the property owner be requested to remove it within 30 days as noted in the current policy.

However, if the Township identifies the encroachment as meeting one or more of the criteria set out in this report, then the owner be requested to enter into an encroachment agreement whereby all associated costs in preparing the agreement be at the owners’ expense. The agreement would stipulate that the owner pays the Township an annual lease fee for as long as the encroachment remains and that the encroachment be removed at the time of change of ownership.

In the case of encroachments on an unopened/public road allowance the encroaching party cannot acquire the property by virtue of adverse possession.

Laneways, Parks and Blocks,
Waterfront/Shoreline Township-owned Properties:

If the encroachment is a safety…remove it within 30 days ….

However, if …[it meets] criteria….then .. encroachment agreement whereby all associated costs in preparing the agreement be at the owners’ expense. The agreement would stipulate that the owner pays the township an annual lease fee for as long as the encroachment remains, and that the encroachment be removed at the time of change of ownership. In essence, when it is confirmed that the encroachment has been removed to the satisfaction of the Municipality, the agreement is repealed.

In the case of encroachments on laneways, parks, blocks, Township-owned waterfront/shoreline properties, the encroaching part could by virtue of adverse possession acquire the property if it is proven that he/she has been in constant, open and unchallenged possession of the property. Also, as Council may recall, the public has indicated their very strong preference that no encroachments be permitted or land sold that functions as an access to public waterfront.

Domestic Wells on Municipal Property:

At present, the Township is aware of four (4) wells located on Township property. Given the current regulatory environment, it is prudent to have these wells removed forthwith. The high risk to the township includes; potable water concerns, accident risks, and other contamination concerns. Domestic wells should not be permitted to remain on Township property.

If the well is not being used, the owner should be ordered to properly abandon and decommission the well as per the Ministry of the Environment’s guidelines.

If the well is being used, the owner should be requested to relocate the well onto private property within a reasonable period of time, and to properly abandon and decommission the existing well located on Township property.

Encroachments on Public Waterfront Property

Encroachments on public waterfront property are a similar problem to encroachments on other blocks. Adjacent owners may attempt to assert their right over both the encroachment area and the adjacent beach provided that they can establish possessory title.

It is the opinion of staff that only in situations where there is no reasonable public access to the area should further discussion of a potential encroachment agreement or other action be considered. Given the uniqueness of each circumstance and the difficulty in formulating a policy that could properly address the public interest in each situation, it is recommended that a separate report be brought to Council for consideration in such circumstances.

Encroachment Agreement Fees

Currently the Township requires that the encroaching owner pay a $500 Agreement preparation fee, plus a fee of $100 per year and provide a current liability insurance policy naming the Township as third party insured. This is a satisfactory means of dealing with minor encroachments, however where the Township assumes significant additional risk and/or property is no longer accessible or usable by the public this is not a deterrent or an appropriate recognition of the value of land being occupied by the private interest. The value of the property as a publicly owned parcel may be compromised or lost entirely. The use of a fee rather than a license to occupy should be investigated further. Such license could then be valued comparably to the value of the asset of the encroachment to the abutting property owner. An appraisal could be required, at no cost to the municipality, where significant asset values are involved. The District of North Vancouver charges an annual rent based on a percentage of the prior year’s average assessed value of abutting residential lands.

The concept of a license to occupy has also been suggested as a tool that could be used by the Municipality. It would potentially have similar impact as the encroachment agreement fee. As previously indicated, the value of the occupation would have to be calculated and reflected in any licensing approval.

FINANCIAL IMPLICATIONS:

The Township should consider requiring annual lease fees from the encroaching parties at a substantial higher fee for occupying township-owned property.

The current encroachment agreement holders pay the Township $100.00 annually and must provide proof of liability insurance for one million dollars and name the Township as insured. Staff would note that any annual fee should adequately cover administrative costs incurred, and reflect the benefit being received by the encroaching party….