Private Unassumed Roads

Zoning By-Law - Section 3.4 - Road Access Agreement Requirement

Since amalgamation in 1998, Section 3.4 in the Township Zoning By-Law prohibited the issuance of a building permit for a lot that did not have frontage on an improved street.  Improved street is defined in the By-Law as a street which has been assumed by the Township (or Province or County) and which is maintained on a regular, year-round basis.  This included a private unassumed road, which in most instances is located in a subdivision registered prior to December 10, 2002.

In 2009, the Township undertook an amendment to Section 3.4 of the Zoning By-Law to add an additional provision that would provide an exemption to the requirement to have frontage on an improved street in the case where an owner in a subdivision registered prior to December 10, 2002 has entered into a road access agreement (RAA) to the satisfaction of the Township.

• Planning Consultants Letter re Road Access Agreement Requirement (2009)

The Road Access Agreement was developed by the Township's legal counsel and is reviewed and updated as necessary by legal counsel every few years.  In addition, the Township's insurer reviews and updates the insurance requirements contained in the agreement.

• Template - Road Access Agreement

The purpose of the Road Access Agreement was to transfer some of the risks associated with PURs from the municipality to property owners.

In 2019, a private property owner who was developing their property on a PUR brought forward several questions and concerns regarding the development of properties on private unassumed roads and the requirement to enter into a road access agreement, specifically the insurance requirements, the costs of insurance and the indemnification clause.

At that time the insurance industry had changed to a “hard market”, which it is still in.  A hard insurance market is when there is a high demand for insurance coverage and low appetite to insure causing premiums to increase significantly.  As a result, Council wanted to take action.

The Private Unassumed Roads Working Group was established in October 2020 to provide advice and recommendations to Council regarding Private Unassumed Roads in order to best implement the direction contained within Council Resolution #C-2019-11-08:

RESOLUTION #C-2019-11-08

“THAT, the Township eliminate the requirement for property owners to enter into a road access agreement on unassumed subdivision roads in the Township;

AND THAT, section 3.4 of the Township zoning by-law be reviewed and appropriately be revised.”

ADOPTED

Although a resolution was passed to amend section 3.4 of the Zoning By-Law, until the zoning by-law was amended, that direction would not come into effect; as a result, any applications on unassumed subdivision roads still require a road access agreement.

To fulfill its mandate it was anticipated the Working Group would, among other things: 

• Clarify definitions for private and public roads, including the use of a term to replace the term “Private Unassumed Road”. 

• Review section 3.4 of the Township Zoning By-Law, Official Plan and any other relevant documentation related to private unassumed roads and road access agreements. 

• Clearly identify and examine all of the issues, problems and risks surrounding the use of private unassumed roads and how to sequentially address them and various alternatives for rectifying or otherwise dealing with such issues, problems and risks in a manner that is fair and equitable to the Municipality, to all property owners who use private unassumed roads to access their property, and to Township taxpayers generally; including but not limited to: 

• • insurance and liability considerations for both the Township, the property owners and those conducting maintenance
  • maintenance requirements
  • responsibility for maintenance
  • tools to minimize risk:
    • introduction of a holding zone provision in the Zoning By-Law
    • Limited Services Agreements and Site Plan Control Agreements
    • other amendments to the Official Plan and/or Zoning By-Law
  • bringing the roads up to municipal standards by the Township and/or the property owners so that the Township can assume the roads for maintenance purposes
  • development of a road grants policy for private unassumed roads
  • deeming the roads away, in turn creating private roads, not owned or maintained by the Township
  • community improvement plans
  • area rated development charges
  • any other related issues, problems and risks that the Working Group deems necessary.

• Recommend to Council whether road access agreements should be required or not and the reasons.  If the Working Group recommends that Road Access Agreements are required, advise Council as to:
  • the circumstances under which Road Access Agreements should be required and the reasons;
  • the recommended content for Road Access Agreements; and
  • if any, the recommended changes to the Zoning By-Law, Official Plan and any other relevant documentation.

At the first meeting of the Working Group background information was provided on the matter along with presentations from various groups:

Background Information

• Road Diagram (describes the legal status of roads within the Township)
• List of Subdivisions with Private Unassumed Roads
• Private Unassumed Road - Maps
• Private Unassumed Road - Statistics
• Private Unassumed Roads – Estimated Costs to Upgrade
• Planning Process Related to Private Unassumed Roads – presentation by Noelle Reeve, Township Planner.

Presentations

• Overview of Liability/Insurance Requirements on Private Unassumed Roads for the Township, Property Owners and Contractors - Carolyn Corkery and Matt White, Halpenny Insurance Brokers Ltd.
• Federation of Ontario Cottagers Association (FOCA) – Experience Regarding Private Unassumed Roads, Ian Crawford, President.
• Bennett Lake Estates Cottagers Association (BLECA) – Overview of Experience as an Incorporated Road Association on Private Unassumed Roads in the Township, Al Schoots, Member of BLECA.

After the initial meeting it became evident that there would not be one option that would work for all the private unassumed road situations, and that there were pros and cons to each option.  As a result, the Township’s planning consultants Jp2g put together an Options Assessment Report for the Working Group to consider.

• Private Unassumed Roads - Options Assessment Report

Three ownership/maintenance options were identified and assessed:

Option #1:     Taking the Road Out of Township Ownership (Private Road)

Option #2:     Road is Township Owned and Assumed (Public Road)

Option #3:     Road is Township Owned and Privately Maintained (Status Quo)

The report then assessed the pros and cons for each option taking into consideration the following:

• Liability
• Maintenance
• Financial
• Health & Safety
• Risk Reduction Tools
• Road Standards
• Situations where Option is Preferred
• Impact on Benefiting Property Owners

The Working Group met to discuss the Options Assessment Report and approved the following four (4) recommendations to be brought forward to Council for discussion and consideration:

Recommendation #1 – Township Assume All PURs

“THAT, Tay Valley Township bring all Private Unassumed Roads up to the minimum standards and assume all Private Unassumed Roads at no cost to the property owners;

AND THAT, public consultation on this recommendation occur prior to Council making a final decision.”

OR

Recommendation #2 – Township Assume Most PURs with some Exceptions (Assume, Except Option 1)

“THAT, Tay Valley Township bring all Private Unassumed Roads up to the minimum standard and assume all Private Unassumed Roads except, Old Mine Road, Killarney Lane, Homestead Lane and Sherbrooke Drive;

THAT, Old Mine Road be stopped up, closed and provided as a lot addition to the adjacent property owner for use as a driveway at no cost to the property owners;

THAT, Killarney Lane and Homestead Lane be transferred from the Township to private ownership at no cost to the property owners

THAT, Sherbrook Drive, due to the complexity of its status, be dealt with separately from the rest of the Private Unassumed Roads;

AND THAT, public consultation on this recommendation occur prior to Council making a final decision.”

OR

Recommendation #3 – Take Some Roads Out of Township Ownership and Leave others As PURs (Option 1 and 3 with Maberly Pines)

“THAT, all Private Unassumed Roads remain as Private Unassumed Roads with the Township assisting the property owners on each road to set up a private road association, resulting in the road association providing the Township annually with the necessary insurance certificate instead of individual property owners, except Old Mine Road, Killarney Lane, Homestead Lane and Sherbrooke Drive;

THAT, Old Mine Road be stopped up, closed and provided as a lot addition to the adjacent property owner for use as a driveway at no cost to the property owners;

THAT, Killarney Lane and Homestead Lane be transferred from the Township to private ownership at no cost to the property owners;

THAT, Sherbrook Drive, due to the complexity of its status, be dealt with separately from the rest of the Private Unassumed Roads;

AND THAT, public consultation on this recommendation occur prior to Council making a final decision.”

OR

Recommendation #4 - All PURs remain PURs with some Exceptions and a Revised Road Access Agreement (Option 1 and 3 with Maberly Pines with Revised Road Access Agreement)

“THAT, all Private Unassumed Roads remain as Private Unassumed Roads with the Township with the road access agreement remaining in place with revised liability and indemnity sections, except Old Mine Road, Killarney Lane, Homestead Lane and Sherbrooke Drive;

THAT, Old Mine Road be stopped up, closed and provided as a lot addition to the adjacent property owner for use as a driveway at no cost to the property owners;

THAT, Killarney Lane and Homestead Lane be transferred from the Township to private ownership at no cost to the property owners;

THAT, Sherbrook Drive, due to the complexity of its status, be dealt with separately from the rest of the Private Unassumed Roads;

AND THAT, public consultation on this recommendation occur prior to Council making a final decision.”

In September 2022, the Executive Summary and Report were written and presented by the public members on the Working Group. 

• PURWG Executive Summary and Report 
• Report Schedules

*This report should be read in conjunction with the legal opinion obtained by the Township.

Council Direction

Council at its meeting on September 27^th, 2022 adopted the following resolution:

RESOLUTION #C-2022-09-04 

“THAT, the Private Unassumed Roads Working Group Executive Summary and Report presented to the Committee of the Whole on September 13, 2022, be received for information;

THAT, staff be directed to provide a follow-up report that addresses the recommendations and various points and concerns arising from the Private Unassumed Roads Working Group Executive Summary and Report;

AND THAT, in the meantime, staff proceed with obtaining a legal opinion with regards to the indemnification clause and insurance requirements contained in the Road Access Agreement with regards to:

• the reasons the clauses need to be included or not included, and if they need to be included, is there alternative wording that can be used; and the need for a Road Access Agreement or not.”

ADOPTED

• Report #CAO-2023-03 – Private Unassumed Roads – Legal Opinion
• Legal Opinion

Council at its meeting on February 16, 2023 adopted the following resolution:

RESOLUTION #C-2023-02-03 

“WHEREAS, a Private Unassumed Road is a road owned but not maintained by the Township;

AND WHEREAS, since Private Unassumed Roads are owned by the Township, the general public is allowed to travel on them;

AND WHEREAS, because Private Unassumed Roads have not been assumed by the Township for maintenance purposes the owners of property along the roads are responsible for maintenance, either individually or as part of an organization or company;

AND WHEREAS, since amalgamation of the former Townships in 1998, Section 3.4 in the Township Zoning By-Law prohibited the issuance of a building permit for a lot that did not have frontage on an improved street;

AND WHEREAS, Improved Street is defined in the Zoning By-Law as a street which has been assumed by the Township (or Province or County) and is maintained on a regular, year-round basis by the Township (or Province or County);

AND WHEREAS, Private Unassumed Roads are mostly found in subdivisions approved prior to December 10, 2002 and are not on an Improved Street;

AND WHEREAS, in 2009, in order to permit the issuance of a building permit for a lot that did not have frontage on an improved street, the Township undertook an amendment to Section 3.4 of the Zoning By-Law to add an additional provision that would provide an exemption to the requirement to have frontage on an improved street in the case where an owner in a subdivision, registered prior to December 10, 2002, has entered into a road access agreement (RAA), including an indemnity and insurance clause, to the satisfaction of the Township;

AND WHEREAS, since 2019 the Council of Tay Valley Township has been considering various options with regards to Private Unassumed Roads and Road Access Agreements, and taking into consideration factors such as liability, maintenance, financial impacts, health and safety, risk reduction, road standards, impact on property owners, etc.;

NOW THEREFORE BE IT RESOLVED THAT,

• Road Access Agreements, including the insurance and indemnity requirements, be required for Private Unassumed Roads;
• Section 3.4 of the Zoning By-Law be amended so that the intent and purpose of the section is clearer, including that the bulleted list of exceptions is not a list of exceptions that one can choose from;
• the Township, with the resources provided by the Federation of Cottage Owners Association, assist property owners in setting up a road association for each of the subdivisions with Private Unassumed Roads;
• the Township contribute up to $5,000 per road association to be established on Private Unassumed Roads;
• the Township contribute up to $500 annually per road association to be established on Private Unassumed Roads to assist with the annual road insurance premiums;
• staff be authorized to begin working with property owners on Private Unassumed Roads within a subdivision on the following schedule, with work being done on establishing one road association at a time:

1. Little Silver Lake Road
2. Maberly Pines Subdivision Roads – excluding Maple Lane
3. Maple Lane
4. Miner’s Point Road and Lakeshore Boulevard
5. Killarney Lane (possible alternative option)
6. Rainbow Lane and Rainbow Lane A
7. Silvery Lane
8. Homestead Lane (possible alternative option)
9. Old Mine Road (possible alternative option)
10. Bennett Lake Estates (possible alternative option)
11. Sherbrooke Drive (possible alternative option)
12. Other.”

ADOPTED

• The Township called a Public Meeting - Zoning By-Law Amendment, to clarify the wording of Section 3.4 and definition of Improved Street of the Comprehensive Zoning By-Law on March 21, 2023.  Council  subsequently adopted the amendment at the Council Meeting on March 28, 2023.
  • Notice of Public Meeting
  • Notice of Passing of Zoning By-Law 2033-017

• The Township will prepare and send a letter to the property owners on the first Private Unassumed Road communicating the decision of Council, and inviting the property owners to an Information Session.

• The property owners on the first Private Unassumed Road will select one person to be the point of contact to work with the Township to establish a road association, which would subsequently enter into a road access agreement on behalf of the association’s members,  and obtain the required road insurance.

• Once the first road association is set up, the Township will begin the process again with the next Private Unassumed Road.  It is anticipated that one to two road associations may be established each year.

• Further information about the process to establish a road association will be forthcoming.

• Maberly Pines Development Charge Update (2022) - Council Direction
• Maberly Pines Development Charge Update (2022) - Treasurer's Report
• Development Charges Update Study (2021) - Public Meeting - Presentation
• Area Rated Development Charge - Maberly Pines Subdivision - Presentation
• Area Rated Development Charge - Maberly Pines Subdivision - Scenario
• Development Charges Update Study (2021) - Committee of the Whole - Presentation
• Development Charges Update Study (2021)

Note: Not all of the subdivisions have agreements, and for those subdivisions that have agreements, not all agreements were registered.  

Bennett Lake Estates - Subdivision Agreement

Hamburg - Plan
Hamburg - Zoning By-Law

Killarney Lane - Plan

Lakeside Living - Plan 6 - Subdivision Agreement

Lakeside Living - Plan 29 - Plan
Lakeside Living - Plan 29 - Subdivision Agreement

Maberly Pines - Plan
Maberly Pines - Subdivision Agreement

Miner's Point Subdivision (Rideau Park Subdivision) - Plan

Silvery Lane - Agreement

Sherbrooke Drive - Plan

FAQ's (as at March 9, 2023)