Roadblocks happen, but they won’t slow the momentum…

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An important planning issue I was trying to resolve surrounds old, unassumed municipal roads that were built with statute labour beginning in the 1800s. An 1810 statute required “Pathmasters” to find routes to properties so this hilly, rocky area could be settled. Property owners were paid by the government of the day to construct and maintain the roads – through statute labour.

 

Unassumed municipal roads are similar to unopened concession roads, but they don’t follow the straight lines that concession roads do. Some were later maintained by municipalities, but others were not maintained and an unknown number of them have been lost to the public record. Currently there is no process that would allow a property owner to prove to the township that a municipally owned access road exists or even what kind of proof a property owner might need to provide to the Township.

 

Just as with unopened road allowances, if a township acknowledges the existence of a road created by statute labour, it does not mean they have any responsibility or liability for the road.  It’s only if a road is “assumed” by a municipality that they would become responsible for the road, and acknowledging an unassumed road exists does not put any pressure on the Township to assume it.

 

These are the pieces of legislation that apply:

Under Ontario municipal road law, roads on which statute labour was usually performed became public highways under legislation dating to The Highway Act, S.U.C. 1810, and continued through section 261 of the former Municipal Act, R.S.O. 1990, c. M.45; and although that legislation was repealed in 2003, section 26 of the Municipal Act, 2001 preserves as public highways all roads that existed as of December 31, 2002 unless formally closed by by-law.

 

I proposed an “Unassumed Roads” motion that would direct planners to develop a policy to accept proof of the existence of unassumed roads through the subdivision process, create a checklist for what kind of proof is required, and allow property owners to submit an application to Council to enter into a road maintenance agreement with the property owner so the owner can survey the road and accept all responsibility for the road at no cost to the Township. Presently, there is no mechanism to do this.

 

The motion is not asking the Township to find the proof for any road or assume any roads, just to find out what kind of information is acceptable proof to clear up what has become a roadblock to development that could be beneficial to the Township, and if that template is adopted elsewhere, could be beneficial to the County and beyond.

 

I was approached by a developer who has a cottage in Matawatchan, who asked me to help him with this problem of access to his properties. There is no process whereby Staff can accept proof that anyone has access to their properties through unacknowledged Township roads and I wanted to find a way to overcome that roadblock. The developer is providing excellent proof that several roads exist in what was referred to as The MacPherson Settlement in what is now Matawatchan, that they were created through statute labour, and were never closed. He brings a wealth of information, proof, that would be very helpful for planners to use in developing an unassumed roads framework.  He knows the names of settlers who were served by the roads, LIDAR images showing old foundations, municipal records that show that the settlers were paid to build and maintain the roads “to be as good as the other township roads”.  

 

While discussing the situation with the developer, I discovered that my husband Mark has proof that a road around the property he owns was created by statute labour and was never closed. His property was allowed to be severed from Sally Buesch and Marge Smith’s neighbouring property in 1995 (before I knew Mark) based on two legal opinions that the road was an unassumed municipal highway and has never been closed. The planners accepted the lawyers' proof, and the severance went forward. All it took was the opinion of two lawyers that the road was a municipal road. I want to know what kind of documents the lawyers based their decision on, hoping to find a way for Staff to accept and analyze the same kind of proof that the lawyers used. The development of the policy could not possibly create a pecuniary interest for me, since the road around my husband’s property has already been proven to be an unassumed municipal road. It hasn't been assumed by the Township or improved by them, as there is no obligation for the Township to do so.

 

On March 27, 1995, Renfrew lawyer Richard H. Dickinson wrote, “…there is an existing Township road between the rest of the Buesch/Smith property which has never been closed by the municipality… I reviewed the matter with a local lawyer Duncan Crosby. He spent some time going over the documents as I did in order to give his second opinion. That opinion has been endorsed on your deed, a copy of which is registered as number 383910 and in my opinion, the title has been validly transferred to you.”

 

Unfortunately, the Integrity Commissioner told me that there was no such thing as a statute labour road and that despite getting a severance in 1995, the municipal road around my husband’s property is not a municipal road. He also said that if a municipality acknowledges a road exists, the Township would automatically be responsible to bring the road up to modern municipal standards, thereby increasing the value of my husband's property. All of that is incorrect. If that was the case, then the road would have been brought under the Township's care in 1995.  But his incorrect assumption was what Council based their decision on to penalize me.

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I could battle this out in court, but it would be expensive for me and the Township to settle a relatively small penalty of the loss of two months’ salary (about $3,000). Any decision would happen after the election period, so I am referring the matter to the court of public opinion. I have no pecuniary interest in the matter.

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Hopefully the Township will put my two months’ salary to good use. We need more street lighting on Hwy 41 in Griffith.

 

Update: I heard recently that the Township has been advised by a lawyer that Staff cannot make decisions to acknowledge unassumed municipal roads. I don't understand why not, but there it is. I was told that Staff can only act on advice from lawyers, so my motion would likely have failed even if it had been advanced for discussion at Council. Still, I was doing this for the benefit of the Township and I would appreciate the chance to continue to work for the people of Griffith and Matawatchan as passionately as I have over the last four years on Council.

 

Thank you   

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