Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 01, 2022
CASE NO(S).: OLT-22-004056
PROCEEDING COMMENCED UNDER subsection 6(2) of the Expropriations Act, R.S.O. 1990, c. E. 26, as amended
Owner: Pat Di Biase
Owner: Eddy Siat Leong Chin, Shelly Suk Han Chin, and Ashley Ji Mun Chin
Expropriating Authority: Corporation of the County of Simcoe
Property Address/Description: 7650 Yonge Street and 2177 9th Line
Municipality: Town of Innisfil
OLT Case No.: OLT-22-004056
OLT Lead Case No.: OLT-22-004056
OLT Case Name: Pat Di Biase et al. v. Simcoe (County)
Heard: October 4, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel
County of Simcoe
D. Lurie
Pat Di Biase
Self-represented
Eddy Siat Leong Chin,
Self-represented
Shelley Suk Han Chin, and
and Ashley Ji Mun Chin
REPORT DELIVERED BY G. BURTON AND ORDER OF THE TRIBUNAL
1This is the Report of a Hearing of Necessity held under s. 7 of the Expropriations Act, R.S.O. 1990, Chapter E.26, as amended (the “Act”). Informal inquiries are held to determine whether the proposed taking by the expropriating authority of an owner’s land is “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority” as the Act states. The courts have interpreted this test to be whether the proposed taking is “reasonably defensible”.
2The County of Simcoe (“County”) intends to take certain segments from the owners’ properties to improve the intersection of County Road 4 (Yonge Street) and the 9th Line in the Town of Innisfil (“Town”). The Notice of Grounds or reasons served by the County (as required) summarized these improvements as reconstruction of the intersection into a multi-lane roundabout, with driveway improvements, correction of stormwater drainage, replacement of road crossing culverts, and improvements to safety and illumination.
3Two sets of property owners requested a Hearing following service of the Notice of Intent to Expropriate a fee simple interest in portions of their land.
4Pat Di Biase is owner of that segment described as Part of Lot 16, Concession 8 (Geographic Township of Innisfil), Town of Innisfil, County of Simcoe, designated as Part 5 on Plan 51 R-42944. This is located at the southeast (“SE”) portion of the intersection. There is an aerial image of the intersection at Tab 13 of Exhibit 1, which also shows the corner of the Chin land at the northwest (“NW”) corner of the intersection of County Road 4 (Yonge Street) and 9th Line.
5Eddy Siat Leong Chin, Shelley Suk Han Chin and Ashley Ji Mun Chin are owners of this parcel. The portion of it proposed to be taken for the reconstruction is described as the fee simple in Part of Lot 15, Concession 9 (Geographic Township of Innisfil), Town of Innisfil, County of Simcoe, designated as Part l on the same Plan, 51 R-42944.
The County’s evidence was provided by Ms. Julie Scruton, Manager, Transportation Construction for the County. She was qualified as an expert to provide testimony about the proposed improvements to this intersection.
6She described the general proposal as construction of a roundabout at this intersection. There would be two lanes in each direction for County Road 4 (Yonge), and two lanes only for the 9th Line, with stop sign control on both sides. A large box culvert there would be replaced, and the storm sewer system and ditching brought up to County road standards.
7The County had arranged a study of this intersection by consultants C.C. Tatham and Associates (“Tatham”), under Schedule A, Prime, that is preapproved. It gave notice to the public in 2013. The Tatham report on the options was received in 2014 (Ex.1, Tab 14). They assessed three options for the desired upgrades: 1. the existing lanes, with traffic signals; 2. a conventional intersection with signals and turn lanes; and 3. a roundabout intersection.
8They noted that the existing land uses on the NE and SW corners, essentially opposite the subject corners here, are agricultural, while the NW (Chin) contains a private soccer pitch about 4.0 metres (“m”) from the right-of-way. Both the subject corners are zoned agricultural. There is an aerial photograph at Tab 13 of Exhibit 1, illustrating the uses there as of 2014.
9In assessing the three options considered, for Option 1 Tatham assumed a 3% growth rate for a 20-year horizon, up to 2033. Ms. Scruton testified that this would provide an E or F Level of Service (“LOS”), creating significant delays. Option 2 (turning lanes and signals) would have a B LOS, but a roundabout (Option 3) would have an LOS of B and C, an “overall good operating condition”. Ms. Scruton emphasized that safety was a significant factor, in that there are both lower speeds in a roundabout, and fewer points of conflict such as T-bones or head-on collisions. A roundabout would also be a half-million dollars cheaper than a signalized intersection.
10Tab 12 of Exhibit 1 shows the most current planned design of the roundabout. It would have two lanes with splitter islands, and the centre shaded portion would allow for a truck apron, permitting intrusions there rather than encroachments into the centre lane.
11Tatham’s conclusions on this Option 3 were:
lower operation and maintenance costs over the longer term;
safety benefits;
lower societal costs with respect to improved safety; and,
improved traffic flow and related environmental benefits.
12The County chose this option for a roundabout design. Subsequent revisions shifted construction north and east from the centre of the intersection, both for safety and to balance all the property interests, as frequently occurs. This avoided costly relocation of existing utilities on the west side of Yonge Street. Changes to the driveway location on the (fully developed) Di Biase lands would enable transport trucks to access them, as the former driveway interfered with the splitter island.
13Ms. Scruton testified that the drawings are about 60% final. The roundabout option did require the taking of about an extra quarter-acre, only slightly more property.
Owners
14Mr. Di Biase objected to the fact that construction of a roundabout would necessitate expropriation of the SE corner of the intersection. He said that the shift away from the centre line on Yonge Street to further east was caused by the existence of an expensive commercial property on the SW corner. He does support the redevelopment by way of a roundabout, but not the taking of the portion of his land. He feels that the County did not follow his suggestions about the trees, driveway, a display stand or tile frame on his property. All of the issues raised could be avoided, he stated, if the roundabout were shifted to the north.
15Mr. Di Biase did admit that he did prepare his alterative design at page 33; it was not prepared by an engineer.
16Ms. Scruton emphasized that the County had indeed studied the shift to the north as he suggested, but most of the benefits identified for the balancing of all landowners would be lost. Land would still be required from Mr. Di Biase, and more in this event from the Chins. Reduced traffic speeds would not occur, and the cost of the utilities relocation would be required. Indeed greater costs would be incurred for the reconstruction, including the box culvert.
17Mr. Chin questioned whether the expropriation of land on the east side of Yonge Street permitted construction of a four-lane highway. Ms. Scruton responded that construction on Yonge Street to four lanes was proceeding up to Barrie. Mr. Chin suggested that as an alternative, the intersection of Innisfil Beach Road and Yonge Street would be preferable for the proposed roundabout. However, Ms. Scruton pointed out that Innisfil Beach Road had been recently reconstructed, so no roundabout was possible there.
18Mr. Chin also challenged the chosen growth rate of 3% for traffic counts. Ms. Scruton countered that this was indeed a conservative rate. His preferred Option, No. 1, though cheaper, would produce an unacceptable LOS of F, and sophisticated traffic lights would not alleviate this.
Findings and Opinion
19A review of the document book and Ms. Scruton’s testimony makes it clear there is no other acceptable choice for the redesigned intersection. An Inquiry Officer cannot challenge the municipality’s initial policy decision to expropriate, but only consider whether taking of these particular portions are appropriate to achieve the objectives. From even this preliminary design, it is clear that the County requires these portions of the owners’ land to construct the proposed upgrade to a roundabout. There was no serious allegation of interference with ongoing operations on the owners’ lands, especially from the Chins. Mr. Di Biase’s submissions and filings appeared to be more on the subject of value than the test of need. The proposed takings are in fact minor. There is no doubt, in the Tribunal’s view, that there is a need, especially to achieve the roundabout design chosen by Council.
20After considering all of the evidence and arguments, the Tribunal concludes that the proposal meets the test in the Act and the summation of it as set out by the courts. The test in s. 7(5) of the Act is whether the proposed taking is “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority”. Court decisions such as Parkin v. The Queen in right of Ontario et al., 1978 CanLII 1254 (ON CA), 19 O.R. (2d) 473, determined that the test that the inquiry officer must apply can be expressed as to whether the proposal is “reasonably defensible in the achievement of the City’s objectives”.
21For the reasons given above, the Tribunal finds that the takings of a fee simple interest in Part of Lot 16, Concession 8 (Geographic Township of Innisfil), Town of Innisfil, County of Simcoe, designated as Part 5 on Plan 51 R-42944, and a fee simple interest in Part of Lot 15, Concession 9 (Geographic Township of Innisfil), Town of Innisfil, County of Simcoe, designated as Part l on Plan 51 R-42944, are reasonably defensible in the achievement of the County’s objectives of an intersection upgrade and all related construction activities ancillary to the construction.
“G. Burton”
G. Burton
VICE-CHAIR
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.