An error several years ago has come back to haunt council and leaves everyone involved in legal limbo after council rejected a bylaw on March 13.
That rejection came after Robert MacDonald came to council as a delegation to oppose the township’s closing of a road allowance (Nelson Street) and selling the land to a single landowner.
The issue is Ryan and Nicole Martin hold property at lots 86, 87, 112 and 113 on Concession 14, off County Road 7 in Rothsay. Several years ago they applied for and received a building permit for an accessory shed there, which they built.
The township later learned the building encroached well onto the unopened road allowance, which is owned by the township. At the time, that was not evident looking at an undeveloped road. The road allowance is known as Nelson Street. It runs from County Road 7 to another unopened road allowance to the north called Head Street.
Nelson Street is to the east of the Martin holdings. It is 264 feet deep and 66 feet wide.
Council believed that closing the road and selling the land to the Martins would resolve the issue of the error. Normally, when the township sells an unopened road allowance, it offers the property to abutting landowners. In this case, though, the Martins’ shed is so far onto the road allowance the building would lose its sideyard requirements if the road is divided in half.
Further, the landowner on the other side of the road indicated he has no objection to the Martins buying the entire parcel.
But MacDonald offered council another perspective, even as council had the road closing and sale bylaw on its agenda that night.
He told council he contacted the township “back when they started digging a hole on the township road. I told them what was going on. I talked to the building inspector.”
The person he spoke with was the now retired Jim Baker. MacDonald said Baker visited the site and said the shed would not be on the road allowance.
MacDonald said he took that as fact. “I thought I must be wrong.”
He added that years later he talked to a real estate agent about the 2.8 acre property he owns to the north of the Martins, near Head Street, another unopened road.
MacDonald said the farmer from whom he bought the land had always used the Nelson Street allowance with his tractor to reach his property. With the shed there and the land being sold, that would no longer be an access to his land.
Mayor Bruce Whale pointed out Head Street is to the east of the Martin’s property, and MacDonald could use that if he wishes to develop his land.
But MacDonald said the cost of using Head Street, which is 1,000 feet away from his land is much more expensive than Nelson Street, at about 260 feet.
MacDonald noted that he, too, built a shed in 2000, but, “I kept it on my property.” He said of Nelson Street, “I don’t think its fair [if] you closed it down.”
He also complained about a kennel kept by the Martins, because of the constant noise. “
You licenced a kennel and they don’t even own the property,” he said.
But clerk Patty Sinnamon said there is no kennel licenced for the land, and the Martins have three dogs, which is legal.
Whale once again suggested Head Street can be an access.
MacDonald charged, “You guys have made up your minds.” He said he had planned to put his lands on the market, but that would be difficult now with no access or a more costly one.
Whale asked him what he was asking of council.
MacDonald replied, “Don’t close the road.” He said a real estate agent “told me I can’t sell it with that building there.”
Councillor Neil Driscoll said, “When we made the decision to close the road and sell it, we understood we had no concerns. Now, we do. It’s not fair to the landowner because of our mistake [to force him] to put in a 1,000-foot road.”
Whale pointed out that unless the township receives an application to develop MacDonald’s lands, “We can’t deal with it. Council made a decision and now we have a complaint. If we’d had that information two years ago …”
But MacDonald said, “You did.” He concluded council could be asked to reconsider its decision.
When council later discussed the issue, Sinnamon told council when she spoke with MacDonald about 18 months previously, he gave no indication he was interested in selling his 2.8 acres.
She added when the township closes a road allowance, it cannot take into account something that might occur years later.
Sinnamon added, “We are not adversely affecting someone who is landlocked. Should he wish to develop, he isn’t landlocked.”
But Driscoll argued if the township had not made the error, that point is moot.
Sinnamon said MacDonald is unable to claim Nelson Street. “He never did have access off Nelson Street.”
Whale said, “He doesn’t have [legal] access off Head Street.”
Sinnamon said, “Correct.”
She explained to develop his lands, MacDonald would have to bring that unopened road up to municipal standards, just like any other developer would. She said he could do it for a single lot, or for several.
“It’s no different than it is for subdivisions today. Even if we sold Nelson Street to MacDonald, he still has no frontage. He would have to apply for a minor variance.”
Driscoll asked building inspector David Kopp, “How could this happen? What do we do so this doesn’t happen again?”
Kopp said it is difficult because the township does not always have access to old assessment maps. Some road allowances were created in the mid-1800s.
“We often leave it to the applicant to place the building to meet the setback. We may ask for a survey,” Kopp said.
Sinnamon said a legal solution is unlikely because the township made the error.
“We can’t deal with an applicant [MacDonald] who isn’t there” with a formal application, she said. “It makes sense to transfer that property” to the Martins.
When council considered a third reading of the bylaw, it was defeated 2-1, with councillors Driscoll and Andy Knetsch opposed. Councillor Mike Downey was in favour, and councillor Jim Curry was absent.
After that vote, Driscoll said he is unsure what the next step is, except, possibly, to remove the building on the road allowance.
Sinnamon said if Mapleton attempts to ask the owners to remove their building, the township would likely lose in court.
“If the owner refuses to remove the shed I suspect we’d have a legal issue. I don’t know what more I can tell you,” she said.
Whale said if MacDonald made an application, it might have an effect on council’s decision.
Driscoll said, “I wish his concerns had been here before this process.”
Council directed staff to look into a solution.
