Road Closures - Information Package Aug. 28 2013

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DEPARTMENT: Public Works & Environmental Services

DATE PREPARED: August 28th, 2013 REPORT NO. P.W. 13-67

"COUNCIL-IN-COMMITTEE" MEETING DATE: October 1st, 2013

SUBJECT: GATING OF 4TH CONCESSION OF SOUTH WALSINGHAM

INTRODUCTION I BACKGROUND:

ln October of 2012 Norfolk County Council passed a by law to allow for the gating of the unmaintained road section of the 4th Concession of South Walsingham. This road section is located between the E¼ line and County Road No.59 (Attachment No.1). This unmaintained road section is traveled by off road vehicles which can rut up the road "surface at certain times of the year making the road impassable for the public and creating liability concerns for the municipality (Hand Out No. 1). Norfolk County Council had passed similar by laws to gate a section of Plowrnan's Line in 2010 and also Bilgers Side Road and the 2nd Concession Road STR in the spring of 2012 for similar reasons.

The original requests to gate these mentioned unmaintained road sections were well received from local land owners who complained of issues such as trespassing and illegal garbage clumping on their privately owned lands abutting the road allowance. In the case of the 4th concession the Nature Conservancy of Canada, which had recently purchased land on both sides of the 4^th concession, had made the initial inquiry. The only other land owner on this section of road was also agreeable to the gating at the time of the original report. In all cases the land owners who owned property abutting the gated road section were given keys to access their properties. In all 3 cases the gating resolved the County’s liability issues as well as solved the private property owners’ concerns. However with the gating of the 4^th concession the other land owner has now reconsidered and would like the gates removed and the road opened to public traffic. There is also a group of citizens who would like to see the gates removed and the mad opened.

The following report is submitted to Norfolk County Council for their consideration.

Respectfully submitted by: Eric R. D’Hondt, P. Eng

Prepared by: Bill Cridland, B.A, CR5-S, C-Tech, CMM ll

The Public Works and Environmental Services Department and Corporate support Services Department - Legal Division have been actively reducing the liabilities associated with unmaintained road sections within Norfolk County as opportunities arise, in part as a result of recent litigation.

Actions include gating and selling of the road allowances. Road Division staff is currently dealing with 2 other road sections which may be candidates for gating later this fall. Each unmaintained road section is assessed on an individual basis as to what action ls most appropriate. With each request to gate a section of County-owned unmaintained roadway, the Roads Division refers to the County's solicitors prior legal opinion on gating road allowances. From the letter of response received from the county solicitor, the “common law right of access and passage" states that municipalities hold public roadways in trust for the general public for the purpose of travel and accessing lands which abut such roadways. With this information it first appears that public roadways cannot be gated as the general public has a right to use these roadways.

However with recent changes to the Municipal Act, as noted by the County’s solicitor, a municipality can pass by laws removing or restricting the “common law right access and passage” by the public over a roadway and the common law right of access to a roadway by an owner of land abutting a roadway. Thus gating of roads may occur through passing a by law. Such a gating, as with any municipal by law, could possibly generate litigation for a municipality in the future if parties challenge the gating of a public roadway. in summary the advice from the solicitor is that recent changes to the Municipal Act do allow for a municipality to restrict access to a public roadway. However in the event of a challenge, the solicitor is uncertain of the success of a defense, since the statutory changes are recent and there in no case law to provide guidance regarding any interpretation of -the new provisions. To limit the chances of a challenge County staff in all cases has worked with all abutting land owners to ensure they were agreeable to the gating. In the case of Plowmans Line, Biigers Side Road and the 2nd Concession Road STR, the abutting owners were given keys for the gate to use when they needed to access their properties. In these 3 cases this process has worked well and the abutting property owners no longer have trespassing and garbage issues to deal with. The County has also reduced maintenance costs and reduced the liabilities of the public traveling a road way which cannot be kept in a maintained condition year round. With these closings, there has ‘been no challenge and few questions from the public.

As with each request to gate a County-owned unmaintained road allowance each situation must be assessed separately; in reviewing the request to gate the 4th concession of South Walsingham it needs to be noted that this unmaintained road section has a long history of being a problem area and there would be many benefits to gating this section. The road surface is a clay-based material on the most easterly portion with poor drainage which turns slippery very quickly. The road is posted as unmaintained, however in discussions with the OPP and local residents, it is has been noted that numerous vehicles do become stuck on this section each year, especially on the east end. OPP records also show that this road section has been used as an area to abandon stolen cars and hold illegal bush parties. The OPP are in support of gating this section as it is seen as a way of eliminating these activities.

The Roads Division supported the gating in 2012 as the gating would also lower the maintenance cost of garbage pickup and road grading costs. Off road vehicles using this road section. especially during the wet conditions, severely rut the road surface which increases grading time and cost and also creates a liability for the municipality. There is also a bridge located on the east end which has a very narrow platform and no guardrail (Hand Out No. 2}. By restricting vehicle access to this section the County's liability is further reduced. The Roads Division also feels that with County Hwy 24 being located to the immediate north of this road section and with the often impassable condition of the 4^th concession, the public has nearby alternatives and there would be little impact to the local traveling public. The recently installed gates allow for pedestrian access while reducing traffic and protecting the road from excess rutting and damage from off road vehicles. Protecting the road surface will help ensure the road remains passable for the abutting property owners’ access. The public has nearby alternatives and there would be little impact to the local traveling public.

With the challenge of the gating by law, County staff from the Public Works and Environmental Services Department and Corporate Support Services – Legal Division have discussed and prepared a number of options for council to consider. Each option has its own pros and cons which council should consider while debating the issue.

Option 1 – Leave gates in place.

Pro’s

The County’s liability issues are reduced, maintenance costs are reduced for grading and litter clean up and no bridge upgrades or road upgrades are needed.

Con’s

Citizen group’s concerns are not met. Continued conflict possible with the abutting land owner which was not the intention of staff when gating this section. In all previous cases County staff strived to work with all abutting land owners to reach an agreement on gating which benefited the land owners and reduced liabilities for the County.

Option 2 : Remove gates and open road.

Pro’s

Citizen group’s concerns satisfied.

Con’s

The County’s liability issues are not addressed, increased cost for maintenance for grading and litter pick up if the road is not upgraded. If the road was reopened to traffic, Public Works Staff would recommend bridge upgrades and road way upgrades. As noted in the Staffing Implication section of this report Engineering staff estimate the cost to be $180.00 a linear meter which is approximately $360,000.00 to upgrade the unmaintained section based on 2000 m. Engineering staff would also recommend the replacement of the bridge structure to a wider structure at an estimated cost of $350,000 to $400,000. At the very least the present structure would need adequate guardrail and a new bridge deck installed at an estimated cost of $100,000.00. The 2012 bridge inspection document identified this structure as lacking a proper guardrail. The bridge code calls for adequate guardrails on all structures. If the road was to be re-opened and upgraded it would set a precedent as County staff move forward with other gating requests. Also there is the potential cost of reimbursing the Nature Conservancy of Canada for the gates as this organization purchased and installed the gates. This cost has not been determined at this time.

Option 3 : Seasonal gating.

Pro’s

May satisfy citizen group’s concerns

Con’s

Still exposes the County to potential liabilities. Staff time and maintenance costs increase and a policy would need to be developed and implemented to guide when the road is open or closed. Each year brings varying conditions making it difficult to set dates on the openings and closings. As well a single heavy rain event can be enough to make the hills on the east end impassable. As well the bridge upgrades and some road work would be needed to reduce liabilities concerns.

Option 4 : Relocating of gates to a location east of the abutting land owners property line and reducing the gated section by about a kilometer in distance.

Pro’s

May satisfy citizen group’s concerns. The relocation of the gates would still gate off the east end of the road where the road surface is clay based with two hills and the bridge is located. This would not require any bridge or road upgrades and address the most serious liability issues. There are 4 other bridges in the County which are currently closed to traffic until a decision is made on the future of the structures. In this case it is the bridge structure as well as the clay based hills on either side of the bridge which are not suitable for safe passage of vehicles during certain months. 2013 was a wet spring and the rutting was so severe that Roads Division was unable to grade the surface until late July.

Con’s

Cost to relocate gates and construct a turnaround area estimated at $2,500.00. May not satisfy the citizens group’s concerns. The County’s liability issues would not be fully addressed as the west end of the road is still prone to some rutting at certain times of the year. Would be ongoing maintenance needed in order to keep the west section in acceptable condition.

In summary County staff is recommending option 1 or 4 as preferred options. Options 2 and 3 are not being recommended as they are too costly they require repairs to the road and the bridge on the east section. The issue with option 1 is that the citizen’s group concerns are not met. This option also denies the abutting land owner his request of wanting the gates removed or at least moved past his property line. With each gating, Roads Division staff has worked with all abutting property owners to achieve an agreement which is acceptable for the affected land owners as well as the County.

The preferred option that staff is recommending is option 4, as this option is the most cost effective. The only costs involved would be the relocating of the gates, construction of a gravel turnaround and some road work to ensure the road remains in an acceptable condition at the west end. With the abutting land owner reconsidering the gating, the relocation to the east would locate the gates at a location staff would have originally suggested if the abutting land owner hadn’t agreed to the gating (Attachment No2). Also as staff moves ahead with the various other requests to gate or sell unmaintained road allowance, the approach of working with abutting owners will continue to be of utmost importance.

This option also covers the majority of the County’s liability issues as the bridge and clay surface of the east end hills remain gated to vehicles. The west end of this road section has no hills and has a sandier base which is not as prone to rutting to the degree that the clay surface on the east end is. This option of restricting access for public safety and reducing liability issues is very similar to other roads in the County such as the section of the unmaintained Hazen Side Road, Troyer Road Extension, Marburg Road and Concession A where bridges have been blocked off due to failing condition. The gating removes the liabilities and hazards to the traveling public as well as saves tax dollars.

Interdepartmental implications :

County Manager’s comments (if required)

Financial Services Comments :

County staff is recommending Option 1 or 4 as potential options to solve the gating issue at 4^th Concession South Walsingham. Option 1, to leave the gates in place, would have no financial implications. Option 4, to relocate the gates, is not included in the 2013 Approved Budget and would have a small negative financial impact estimated to be $2,500.00.

If Council chooses Option 2 or 3, a further staff report outlining the potential cost for each Option will need to be presented to Council for consideration.

STAFFING /LEGAL IMPLICATIONS:

Risk Management Comments: -

Norfolk’s approach to gate certain unmaintained roadways is a very proactive way to manage the liability. The bridge that is located on this unmaintained road, is a wooden structure and barely wide enough for one vehicle to pass over. There are areas where swampy land is located on either side and water drains onto the road as there are no ditches.

“The Supreme Court of Canada has stated the duty of a municipality is to keep streets/roads in a reasonably safe condition for ordinary travel. Due to the condition of this road, without significant improvements, this road is not maintained in a reasonably safe condition and is a liability to the County. if Council decides that this road should be open to the public, appropriate funds would need to be designated in order to bring this road up to a standard that is reasonably safe for public travel. In this particular instance. with County Hwy 24 being approximately 1.5 km to the north, and no houses located on this section of the 4”‘ Concession, there appears to be no reason why the public would need to travel this unmaintained road. The property owners should be the only ones that require access and Norfolk County provides each with keys in order to access their lands.

Engineering Division Comments:

Engineering Division staff have estimated the cost to upgrade the road to be $ 180.00 a linear meter. The unmaintained section in question is approximately 2000 meters in total length. This calculation is for a gravel surface only and does not include a hardtop surface. Engineering staff also calculated the cost of installing guardrail on the bridge platform to be at $ 100 000.00. in the event of- the road being fully opened Public Works staff are suggesting a new bridge structure be installed with a standard 2 car width at a estimated cost to be in the $ 350 000.00 to $ 450 000.00 range. It needs to be noted that the 2012 bridge inspection report done by an outside engineering firm does recommend

3' an adequate guardrail and bridge deck installation to this structure at an estimated

cost of $ 100 000.00. The guardrail is needed in order to bring this structure up to code standard.

CORPORATE STRATEGIC PLAN LINKAGE:

This initiative refers directly to Ongoing Operations:

Goal A Maintain Current Levels of Service in Operating Departments

DEPARTMENT DIVISION BUSINESS PLAN STRATEGIC PLAN LINKAGE:

The recommendations in this report are in keeping with the corporate objective:

“Working Together with Our Community"

Public and vehicular traffic safety is of paramount consideration within the Roads Division business plan when and where warranted by applicable engineering standards and guidelines.

CONCLUSION :

Staff are recommending option 4 - relocating of the gates - as this option is the most cost effective. The only costs involved would be the relocating of the gate and some road work to ensure the road remains in an acceptable condition. This cost is estimated to be S 2500.00 and funds can be used from the 2013 operating budget. This option also covers the majority of the County‘s liability issues as the bridge and clay surface of the east end hills remain gated to vehicles. The west end of this road section has no hills and has a sandier base which is not as susceptible to the degree of rutting the clay surface on the east end is. This section requires minimal maintenance. This option of restricting access for public safety and reducing liabilities issues is very similar to other roads in the County such as the a section of the unmaintained Hazen Side Road, Troyer Road Extension, Marburg Road and Concession A where bridges have been blocked off due to falling condition. The gating removes the liabilities and hazards to the traveling public as well as saves maintenance dollars.

The Roads Division also feels that with County Hwy 24 being located to the immediate north of this road section and with the often impassable condition of the 4th concession, the public has nearby alternatives and there is little impact expected to the local traveling public since it is often in an impassable condition.

The County's Public Works and Risk Management staff is presently working together on mapping and inventorying all unmaintained roads sections. Staff is also dealing with requests from public land owners abutting unmaintained road sections in an attempt to limit the liabilities with these roads sections. Community Services Department is also being consulted as in some cases the road allowances could be used as future trails as Norfolk's network of trails expand. Council should be prepared for more reports, requesting gatings, sate of unmaintained road sections and possible conversion of roads to trails in the near future. As mentioned earlier each sections needs to be reviewed separately to what action is most appropriate.

RECOMMENDATIONS:

THAT Staff Report P.W. 13-67, Request for a gate on the 4^th Concession South Walsingham, be received as information;

AND THAT Norfolk County Council support option 4 of staff report PW-13-67 and direct staff to relocate the gate on the west end of the 4^th Concession of South Walsingham approximately 1km to the east;