Forest Ave South Road Allowance and Water Lot

Who owns the water lot at the base of the Forest Avenue South road allowance? 

The City of Orillia owns the Forest Avenue South road allowance and adjacent water lot. 

 Is the City proposing to transfer a portion of the Water Lot to the owners of 371 Victoria Crescent?

No, the entire Water Lot will remain in the ownership of the City.  The Water Lot is currently divided into two Zones under the City's Zoning By-law and it is the zone boundary that is depicted on the sketch that was circulated with the recent Notice of Public Meeting.  The two Zones are as follows:

The westerly 6 metres of the Water Lot is currently zoned "Temporary Use Three - Open Space One" (T3-OS1) Zone, which permits a Seasonal Dock and a Boat Lift associated with property known municipally as 371 Victoria Crescent in accordance with the following provisions:

• Seasonal Dock length (max) – 20.0 m (measured from the Shoreline of Lake Simcoe)
• Seasonal Dock width (max) – 2.4 m
• Boat Lift width (max) – 2.4 m
• Setback of Seasonal Dock and Boat Lift from the straight line projection of the westerly Side Lot Line of 371 Victoria Crescent  into Lake Simcoe (min) – 0 m
• Setback of Seasonal Dock and Boat Lift from the westerly Lot Line of the municipally owned water lot in front of the Forest Avenue South Road Allowance – (min) 0 m, (max) 6.0 m

The balance of the Water Lot is currently zoned "Temporary Use Four - Open Space One" (T4-OS1), which permits the following:

• "Waterfront Landing" which is defined as follows in the Zoning By-law:  

"Waterfront Landing means the Use of land as a docking and boat launching facility which serves as a mainland access point for residential properties that are accessible only by water, but which does not include Watercraft sales or rental or services, the sale of fuel or the parking or storage of vehicles or trailers."

• Seasonal Docks (1) for the purpose of access to Grape Island may be located in the T4-OS1 Zone subject to the following zone provisions:
  • Seasonal Dock length (max) – 30.0 m (measured from the shoreline of Lake Simcoe)
  • Seasonal Dock width (max) – 3.0 m
  • Setback of Seasonal Dock from the easterly Interior Side Lot Line of a water lot (min) – 0 m
  • Setback of Seasonal Dock from the westerly Interior Side Lot Line of a water lot (min) – 6.0 m

The City has, however, issued a Licence of Occupation which allows the dock and boatlift used in conjunction with 371 Victoria Crescent to occupy up to 6 metres adjacent to the westerly lot line of the City's Water Lot. The Licence of Occupation does not convey any ownership interest in this portion of the Water Lot.  The term of the Licence of Occupation currently coincides with the term of the Temporary Use By-law and may be extended at the City's option.  In accordance with standard City practice for Licences of Occupation, the owners of 371 Victoria Crescent were required to pay a fee and are required to provide annual proof of liability insurance.  The City has many similar Licences of Occupation throughout the City in cases where there are encroachments onto City-owned property.

A Public Meeting is required to be held (pursuant to the provisions of the Planning Act) in connection with any proposed amendment to a Zoning By-law.  At the Public Meeting on December 10, 2020, Council will hear any party who wishes to make a submission regarding the proposed Zoning By-law Amendment.  Written submissions that were received prior to the Public Meeting will also be provided to Council prior to the Public Meeting.  Those making submissions should be aware that their submissions will form part of the public record.

Council will not consider passing the Zoning By-law Amendment at the December 10, 2020 Public Meeting.

The provisions of Temporary Use By-law 2018-20 were intended to provide additional zone rights on the Forest Avenue South Road Allowance and the Water Lot, and recognize existing non-compliance issues on the property at 371 Victoria Crescent.  Should Council opt to not pass the proposed Housekeeping Amendment, and opt to not further extend Temporary Use By-law 2020-18, then the additional zone rights will cease as of the expiry of Temporary Use By-law 2020-18 on March 5, 2021.  In that case, the underlying provisions of Zoning By-law 2014-44 will be in effect, as follows:

• With respect to the City owned Water Lot, one dock would be permitted with a maximum length of 15.0 m and a maximum width of 3.0 m.  The dock would need to be set back at least 4.5 m from the side lot lines of the Water Lot.
• With respect to 371 Victoria Crescent, a seasonal dock (maximum length of 15.0 m., maximum width of 2.4 m) would be permitted provided it did not cross the projection of the side lot lines or the side lot line of the City's Water Lot.  A boat lift would be permitted in accordance with the provisions of the Zoning By-law provided it did not cross a projected lot line.
• Use of the Forest Avenue South road allowance and the Water Lot as a "Waterfront Landing" would no longer be formally permitted under the Zoning By-law.

• Since 2015/2016, the City has received numerous complaints associated with the use of the Forest Avenue South Road Allowance, the concrete pier and the City's water lot.  
• As it would in any circumstance where its ratepayers have filed a complaint, the City conducted an investigation into the issues.  
• During the investigation it was discovered that the Grape Island Property Owners Association (GIPOA) had placed two docks on the City's waterlot whereas Policy 1.6.1.1 permitted only one dock.  In addition, it was discovered that some docks and structures located on property adjoining the road allowance encroached onto the City's lands and water lot, and were not in compliance with the City's Zoning By-law.
• Due to the complexity of the situation, staff reported to Council and requested Council's direction regarding how to attempt to address the various issues. 
• In 2018, Council directed the formation of a Working Group to attempt to come to a solution that would be acceptable to all parties.

Why did the City choose to defend itself against the GIPOA Statement of Claim?

• Under the Rules of Civil Procedure, when the City is served with a “statement of claim” from a plaintiff, the time allowed to file a “statement of defence” is short.  If the City fails to respond to a statement of claim, the court will be entitled to assume that the City has admitted all of the allegations set out in the statement of claim, and the plaintiff will be entitled to obtain a default judgment against the City. 
• In the case of the GIPOA’s statement of claim, the GIPOA asked the court to declare that the City’s property rights as owner of the Forest Avenue South waterlot were subordinate to the GIPOA’s rights of “unfettered access” to the waterlot, and that Council had no authority to regulate the GIPOA’s use of City-owned lands.  The GIPOA also asked the court to order that the City pay approximately $3.1 million to the GIPOA, for alleged damage done to all of the lots on Grape Island. 
• The City reviewed the GIPOA’s statement of claim and quickly determined that it was not prepared to admit the GIPOA’s allegations, and that the GIPOA’s allegations in fact had little merit in light of the prevailing law governing: (a) the public’s use of municipally-owned lands, (b) the legislative authority of municipal councils, which cannot be fettered by contract, and (c) the GIPOA’s lack of legal “standing” to claim damages to property that it does not own. 
• The City thus issued a statement of defence in response to the GIPOA’s statement of claim.  The GIPOA’s claims were nonetheless legally and factually complex and the City incurred substantial legal costs to respond to the GIPOA’s statement of claim, which the City will seek to recover in the litigation.

 What is Policy 8.1.5.1.? 

Some residents of Grape Island have approached City staff to ask about Policy 8.1.5.1 of the City of Orillia Policy Manual.  Policy 8.1.5.1 "Sale of Water Lots - Adjacent Property Owners" is a policy that was passed by the Council of the City of Orillia in 1992 to provide direction to City staff when the City receives a request for municipal comment from the Ministry of Natural Resources and Forestry (MNRF) when that Ministry has been asked to sell a portion of the Crown-owned lake bed to an abutting landowner (i.e. the proposed creation of a new water lot).  This policy is used by City staff to guide how comments are provided by the City to the MNRF.  This policy does not apply to the City-owned water lots.

This policy was updated in April 2019 to reflect the change in the department name referenced within the Policy. You can review the change within Report CD-19-06, but for easy reference the change listed on page 15 of that agenda says:

8.1.5.1. Adjacent Property Owners - “Replace reference to “Public Works (Engineering Division) and Development Services Departments” with “Development Services and Engineering Department”

Is the City of Orillia attempting to sell the water lot at the southern end of Forest Avenue South? 

• The City of Orillia does not have any intention at this time to sell the municipally owned water lot at the base of Forest Avenue South.
• Policy 1.7.1.1  - Real Property, Provision 3.3 states that “To protect the long term public access to Lakes Couchiching and Simcoe, road allowances adjacent or leading to the shoreline shall not be conveyed out of municipal ownership unless specifically authorized by Council.”
• The City of Orillia Parks, Recreation and Culture Master Plan further states that “In general, all undeveloped road allowances (i.e. road right of ways that are not currently being utilized for a vehicular road) should not be released from the City’s ownership.” (page 79)
• This report goes on to state that “Unless it is absolutely certain there are no current or future uses for the land areas regarding circulation, parks and open space, community service or any other public benefiting function, it is recommended that all road allowances be maintained for public use, particularly those providing water access. Where road allowances have worn pathways from pedestrian or bicycle use, they are obviously a public transit corridor and should be incorporated into the City’s circulation system.” (page 79)
• Any road allowance that is considered for sale should also go through a standard review process by the various boards or commissions having potential use for the land (i.e. Active Transportation and Trails Advisory Committee, Economic Development Committee, Municipal Heritage Committee, Recreation Advisory Committee, etc.).” (page 79)

Does the City plan to turn the Forest Avenue South water lot and road allowance into a parkette?

No, there are no current plans to turn the Forest Avenue South water lot and road allowance into a parkette. For clarity, the 2014 Parks, Recreation Culture Master Plan contemplates a parkette called the Forest Avenue South Park which would be intended as a location to launch kayaks and canoes. This small parkette is contemplated where a small creek crosses Forest Avenue South (approximately mid-way between the Highway 12 by-pass and Victoria Crescent). The plan does acknowledge that the City does not own this land, and either a land purchase or easement agreement would be required to accommodate this park. No plans are yet in place to pursue the development of this parkette, and no funds have yet been set aside for this purpose. For more information, including a map, please visit page 144 of the Parks, Recreation and Culture Master Plan.

Further, recent use of the Forest Avenue South road allowance and water lot has resulted in a number of complaints over the past several years. In Report BDC-20-05 staff explicitly state that consideration was given to the capacity of the water lot (not enough room to accommodate all of the requested encroachments) and to land use compatibility (staff recommended limiting the extent of uses of the water lot due to the adjacent resident land uses). For this reason, Council and staff are not currently considering any additional uses and/or development of this road allowance and water lot.

• In January 2018, Council directed staff to form a Forest Avenue South Working Group ("Working Group"). 
• The Working Group, which was comprised of staff, Council representatives, representatives of GIPOA and affected mainland property owners, met for over a year to discuss solutions to the issues that would be agreeable to all parties.
• GIPOA advised that it wished to bring a lawyer to the Working Group meetings and at that point the City determined that the Working Group was no longer appropriate.
• Council directed City staff to survey the residents of Grape Island directly (that is, not through GIPOA) regarding the use of the City's waterlot.  This survey was completed in the summer of 2019.
• Most recently, City staff surveyed the residents of Grape Island directly regarding the frequency of their use of the dock on the City's water lot.  The results of that survey are contained in a Council Information Package dated May 22, 2020.

Has the City advised the GIPOA solicitor that the City is not willing to negotiate?

• No, the City has not advised the GIPOA solicitor that the City is not willing to negotiate. 
• The City's objective is to find a long term solution to the land use conflicts at the base of Forest Avenue South. 
• For these reasons the City has sought to ensure transparency in the process, carry out ongoing consultations with affected residents, and facilitate discussions between ratepayers to allow a grassroots solution between neighbours to come forward. 
• When the GIPOA attempted to introduce a solicitor into the Working Group discussions this changed the dynamic of the discussion from a collaborative informal approach, to a formal discussion with legal implications. 
• When the GIPOA commenced legal proceedings against the City of Orillia this further changed the dynamic of the ongoing relationship between the City and the GIPOA, as the City must ensure that it is acting within the best interest of all residents and limiting exposure to legal claims (which in turn cost the taxpayer).

Can the Grape Island Property Owners’ Association (GIPOA) restrict non-member access to the garbage bin located on the GIPOA Parking Lot? 

All City of Orillia taxpayers are entitled to an annual allotment of garbage tags. However, there is no trash pickup available on Grape Island. For this reason GIPOA has contracted with the waste management department to have a collection bin placed at their Forest Avenue property for use by their members. The volume of the bin is determined by the number of residents represented, and fees associated with its use are paid by the association. (This is similar to the way an apartment building or condominium complex deals with garbage pickup).  The City does collect garbage from the property through that contract, but GIPOA’s Forest Avenue parking lot is private property and the City cannot interfere with the GIPOA’s rules as to who is allowed to access the collection bin on that site.

If you are not an association member, you can contact Greg Preston of the City’s Environmental Services and Operations Department at 705-325-2444 so arrangements can be made for you to receive your yearly entitlement of garbage tags directly. You would then have to tag your garbage and bring it to the Waste Diversion Site directly at 100 Kitchener Street in Orillia. Placing garbage at the curb of Forest Avenue will not be permitted.

Another option would be for non-members to consider working out an arrangement with the association to use the Forest Avenue Depot, and pay a fee to help cover the costs of waste collection from the depot.

If a non-member of GIPOA can’t use the GIPOA parking lot, can we park on the street?

Parking is permitted on both sides of Victoria Crescent, and on Forest Avenue (north of Victoria Crescent). Parking is prohibited on Forest Avenue South between Victoria Crescent and the water’s edge. All parking on Forest Avenue South is subject to winter parking restrictions in the traffic and parking by-law.

Can the GIPOA restrict non-member Grape Island residents from using the dock at the base of Forest Avenue Road South if it’s on the municipal water lot? 

Policy 1.6.1.1. addresses the dock at the base of Forest Avenue Road South. Policy 1.6.1.1. states: “THAT the property owners of Grape Island be permitted each year to erect a temporary dock at the foot of Forest Avenue on the town water lot, such dock to be removed on or about September 1st.”

This Policy is intended to provide access to Grape Island for all Grape Island property owners. The City has not authorized the GIPOA to restrict access to the GIPOA dock in any way, and the City is therefore investigating the extent to which GIPOA has placed restrictions on the use of this dock. 

A survey was undertaken in the spring of 2020.The survey was sent to all property owners who provided the City with an email address through the Forest Avenue South Mailing List last fall. The survey garnered only 14 responses and is therefore not fully representative of the current situation.  

Since undertaking the survey, staff have been advised by residents of Grape Island that the GIPOA due date for payments of membership fees (including fees for litigation) has been moved to June 30, 2020. Therefore, the City will not have an accurate understanding of how many Grape Island residents will remain as members of the association (and subsequently how many non-members will be impacted by the GIPOA dock restrictions) until after this date. Staff therefore propose to re-survey Grape Island residents in early July to assess the impact of GIPOA’s attempts to restrict access to the GIPOA dock. 

Does the City own Ivy Lane or “the Cove” on Grape Island?

No, Ivy Lane, Block 51 and part of Block 52 have never been owned by the City.  These lands were transferred to the “Trustees of the Grape Island Community Association” by Hugh Grant, the original developer of the island, in 1952.