Monday, September 1, 2014

Council advised to hold off re-zoning

Former municipal planner Ted Berry is recommending town council hold off on re-zoning property because it is on the portion of the “two-chain” shore allowance which remains in litigation.
Resident Al Boivin had applied to the town to re-zone his property, located near the Five-Mile Dock Road, from “Seasonal Residential” to “Residential Type One” in order to obtain a business licence and operate a water taxi service on Rainy Lake.

“My family has been paying taxes to the Town of Fort Frances for over 50 years,” Boivin told council during a public meeting Monday night.
“I did not realize that my residence was a seasonal residence, so I just went ahead and applied for a licence and that’s what stirred the whole thing up,” he added.
“The [boat taxi] business will be out on the lake, but I guess I have to conduct business in my house, on my phone, or from my kitchen table or whatever, so that’s why I went forward with this,” Boivin noted.
“So I hope it goes through.
“I’ve put a lot of effort into it,” Boivin added. “This is the last obstacle, the only obstacle, that I’ve run into.”
But Berry, who has advised the town in property matters related to ongoing litigation with area First Nations, told council it should hold off on doing “something that might put the town in jeopardy.”
Berry noted the reason for the property being zoned “Seasonal Residential” in the first place is that it is not served by a year-round municipal road, which remains the case.
He recalled the property originally was occupied by the lift-bridge operator in the area and subsequently was rented by Boivin family, to whom the Canadian National Railway eventually sold it.
At that time, it upset local First Nations who felt the land should be returned to them since it no longer was required by CNR, Berry said.
Notwithstanding that, the town is looking at re-zoning the property to allow a business licence to be issued to the property’s owner.
But Berry told council it has no authority to re-zone the land and issue a business licence because the property is on the portion of the “two-chain” shore allowance which remains in litigation.
(While a judge ruled in the town’s favour in the “Point two-chain matter” earlier this year, a second claim, the “Couchiching two-chain matter,” which spans from where the “Point two-chain” leaves off, extends as far as the Five-Mile Dock).
“In fact, the ‘two-chain’ allowance is not all owned by the natives,” Berry said.
“Some of it was transferred by Ontario to Canada, notwithstanding maybe Ontario didn’t have the authority to do that,” he remarked.
“What happened is Ontario didn’t transfer it all; they only transferred a certain amount and a certain contour, as you are well aware from our previous experience.”
Berry also noted the property in question is accessed via a road on an Indian reserve which runs across a private railway crossing, and the town has no authority to permit access across a private railway crossing.
“Although they might access the property from the lake, you can’t police it because they might drive to the property for the use of the business, by the road on an Indian reserve, across a public railway crossing,” he remarked.
“I don’t think you have the authority to do that. I don’t think you want to take the risk.”
The bottom line, said Berry, is that the land in question is still in litigation.
“It may become yours one day but that’s to be determined yet,” he stressed.
“So I think it would be not in good standing for you to issue a business licence on property you don’t have control over.”
Mayor Roy Avis said Berry’s comments will be take into consideration as council moves forward with the matter.
Whether or not a re-zoning bylaw is drafted, and whether it’s passed by council, will be determined at a future meeting.

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