Report to: Development Services Committee Date of Meeting: October 17, 2006

SUBJECT: Encroachment into Municipal Road Allowance

1107656 Ontario Inc. (Galleria Markham)

Registered Plan 65M-3226

PREPARED BY: Catherine Conrad, Town Solicitor, ext. 4737

Kevin Young, Manager, Municipal Inspections, ext. 3050

RECOMMENDATION:

That the report entitled “Encroachments into Municipal Road Allowance, 1107656 Ontario Inc. (Galleria Markham)” dated October 17, 2006 be received;

And that the 100 mm strata interest in the public highways listed in Schedule “A” annexed hereto, be declared surplus pursuant to Town of Markham By-law No. 178-96;

And that notice of the proposed disposition of the 100 mm strata interest in the public highways listed in Schedule “A:” annexed hereto, be placed on the agenda for the Council meeting on October 17, 2006, as required by By-law 178-96;

And that a by-law be enacted to close the 100 mm strata interest in those parts of the public highways listed in Schedule “A” annexed hereto;

And that the Town Solicitor be authorized to approve and execute the necessary Transfers for the conveyance of the 100 mm strata interest of the public highways within Plan 65M-3226, shown as parts 1 to 41, inclusive on Plan 65 R-28466;

And that 1107656 Ontario Inc. satisfy the Town Solicitor that it has obtained the necessary consents and agreements from the affected property owners with respect to the transfers;

And that 1107656 Ontario Inc. satisfy the Town Solicitor that it will be responsible for the preparation of all necessary transfers, legal plans, fees, environmental clearances and all other documents and for all costs incurred by the Town as related to the encroachments into the municipal road allowance and associated conveyances;

And that 1107656 Ontario Inc. deposit on title Parts 1 to 41 inclusive on Plan 65R-28466;

And that 1107656 Ontario Inc. pay compensation to the Town for the lands to be transferred from the Town in the amount of $161.43/square meter ($161,430/hectare) for a total of $2,055.00;

And that 1107656 Ontario Inc. pay the legal and engineering fees associated with these transactions in the upset amount of $20,000.

And that plan of subdivision 65M-3226 not be assumed by the Town until all encroachments within the municipal road allowance, being the lands listed in Schedule “A” annexed hereto, have been conveyed to the adjacent property owner or the encroachment removed;

And that staff be authorized and directed to do all things necessary to give effect hereto.

FINANCIAL CONSIDERATIONS:

The developer shall be responsible to obtain the property owners’ consent to the land conveyance transaction, and to provide all required reference plans and legal documents including all transfers. The developer has also agreed to pay all costs and fees associated with the land conveyance incurred by the Town and the property owners.

The developer has agreed to pay the Town the value of the land to be transferred, being 12.73 square meters at $161.43/square meter, based on an informal appraisal by the Manger of Real Property, for a total value of $2,055.00.

In addition staff time and related expenses associated with these transactions in the upset limit of $20,000 is to be paid by the developer.

The Town holds sufficient securities pursuant to the subdivision agreement to guarantee the developer’s obligations to the Town for its costs and compensation and for the payment of reasonable legal expenses for the property owners.

Registered Plan of Subdivision 65M-3226, developed by 1107656 Ontario Inc. and known as Galleria Markham, was Accepted for Maintenance by the Town on December 2002, and is subject to a minimum of two year guarantee period. Prior to Final Assumption, the developer was required to submit to the Town a legal survey confirming that there were no encroachments (steps, fencing, landscape features, etc.) into the municipal road allowance. The survey identified forty-one (41) encroachments, consisting of homeowner walkway steps into the road allowance which present a potential liability to the Town (Attachment ‘B’). Accordingly staff have not proceeded with final assumption and the subdivision agreement is still registered on title and the Town of Markham still holds Letters of Credit.

The relocation of the encroaching steps out of the road allowance is not practical due to the existing building setbacks and the developer has proposed that the Town convey to the impacted property owners a strata interest in those lands containing the encroachments.

The conveyance of the strata parts to the abutting residential owners effectively removes the encroachments and relieves the Town from potential liability. The area of parts to be conveyed includes the walkway steps from the surface to a depth of 100 mm below the surface. The Town will continue to retain legal title for those lands more than 100 mm below the surface, where there are existing services. There are no municipal services within the strata area being proposed to be conveyed. The depth of the strata parts was determined in consultation with the affected utilities. Enbridge Gas Distribution Inc. is the only utility having services below the area of the encroachments and they have no objection to the proposed strata transfers.

ENVIRONMENTAL CONSIDERATIONS:

The Town will not be responsible for providing any environmental clearance for the lands to be conveyed. In the event that the property owner requires said clearance, 1107656 Ontario Inc. will be required to provide same at their own cost.

RE-EVALUATION OF PROCESSES

This is the second subdivision where encroachment into right of way has occurred. The first incident being Angus Glen Phase 1, where the encroachments were physically removed. The problem stems from the builder raising the first floor elevation, typically associated with lane based development. This elevation adjustment results in additional steps which then encroach into the right of way depending on the house and porch setback. Staff are now requesting legal surveys prior to Acceptance for Maintenance for those houses whose front porches are in close proximity to the right of way to determine if encroachments exist.

This encroachment issue has been raised with the Developers at the Developers Round Table meetings and a sub-committee of the group was formed to investigate the issue further with Town staff. Town staff have discussed the options of requiring the builder to confirm the foundation elevation by survey during construction or to increase the building setback requirements in order to accommodate the on site construction variations.

Staff will review these and other possible measures within the Developers Group and if necessary report back to Development Services Committee with recommendations for Council’s consideration.

BUSINESS UNITS CONSULTED AND AFFECTED:

The Planning and Finance Departments have reviewed this report.

RECOMMENDED BY:

________________________ ________________________________

Alan Brown, C.E.T. Jim Baird, M.C.I.P., R.P.P.

Director of Engineering Commissioner of Development Services

________________________

Catherine M. Conrad

Town Solicitor

SCHEDULE ‘A’

The following is a listing of the legal descriptions of the 100mm Strata interest to be closed by By-law and conveyed to the abutting property owners:

Part of Pond Drive, Plan 65M-3226,

designated as Parts 1 to 13, inclusive, Plan 65R-28466, Markham

Part of PIN 03029-0949

Part of Leitchcroft Crescent, Plan 65M-3226,

designated as Parts 14 to 19, inclusive, Plan 65R-28466, Markham

Part of PIN 03029-0945

Part of Carnation Road, Plan 65M-3226,

designated as Parts 20 and 21, Plan 65R-28466, Markham

Part of PIN 03029-0939

Part of Galleria Parkway, Plan 65M-3226,

designated as Parts 22 to 28, inclusive, Plan 65R-28466, Markham

Part of PIN 03029-0943

Part of Dahlia Road, Plan 65M-3226,

designated as Parts 29 and 30, Plan 65R-28466, Markham

Part of PIN 03029-0940

Part of Azalea Gateway, Plan 65M-3226,

designated as Parts 31 to 37, inclusive, Plan 65R-28466, Markham

Part of PIN 03029-0938

Part of Orchid Road, Plan 65M-3226,

designated as Parts 38 to 41, inclusive, Plan 65R-28466, Markham

Part of PIN 03029-0946

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