One word can make all the difference.
For 34 years, the residents of Subdivision Plan 1139 – approximately 80 homes on East Street, West Street, South Street and a portion of 30 Sideroad in Big Bay Point – were told that they had deeded beach rights to a waterfront property on Lake Simcoe.
When owner John Koop handed over Block B, described as the West Street road end, to the town, he specified that the property was for the use of residents of Plan 1139 and their guests.
Unfortunately, he did not include the word ‘only.’
In 2019, the Town of Innisfil followed outside legal opinion that because the deed did not exclude anyone, the municipality was free to use the property as it wished, as long as it did not interfere with use by residents of Plan 1139.
The road-end beach was declared public, and signs indicating that it was a private beach for local residents and guests were removed.
On Wednesday night, resident Robert Dudley appeared before council to argue for a return to the understanding that had been in place for over three decades.
He presented a 44-signature petition, organized by Michelle Simpson, requesting that “council vote to consider the beach for use of the Plan 1139 residents only.”
“For 34 years, the beach… at the end of West Street has been considered private use for the subdivision plan 1139,” Dudley told councillors. He called the 2019 decision of the town to declare the beach public “clearly hurtful to all the residents of Plan 1139… and clearly to the benefit of Friday Harbour (Resort).”
Ever since Block B was declared a public beach, Friday Harbour, which owns land abutting Block B, has directed visitors to the property, since its own small beach is only open to Friday Harbour condo owners.
In fact, Dudley said, while residents of Plan 1139 were not notified of the change in status of “their” beach, Friday Harbour was well aware – even going so far as to remove a portion of the fencing between the resort and the beach, and bringing in fill, gravel and woodchips to create a direct path.
“And then they started directing visitors to that beach,” said Dudley, noting while social distancing was enforced on Friday Harbour property, there was no enforcement at the road end.
“There were many times my wife and I went down there and had to turn around and come home,” driven away by the crowds, he said.
Dudley said that the only beneficiary of the 2019 decision has been Friday Harbour, which has “in essence” taken over use of the beach for its visitors, basically depriving residents of Plan 1139 of use of the beach.
The fencing has now been restored but extends only to the high water mark, leaving plenty of room for pedestrians to access the beach from the resort.
Calling the legal decision “a technicality,” Dudley noted that Koop intended Block B to be for the use of Plan 1139 residents only. “If he meant it to be public, he would have said it was for public use, or he could have excluded any wording at all and it would have defaulted to public use.”
He called on council to hold a vote and reverse the public designation. “The only beneficiary of it is Friday Harbour, to the detriment of the people who live here.”
In response to a query from Deputy Mayor Dan Davidson, Dudley confirmed that he had observed a visitor defecating in a ditch beside the beach. “My wife and I chased him off,” he said, but regretfully did not get any video footage.
Coun. Donna Orsatti noted that there are a number of areas with deeded beach rights in her own ward, but unless the deeded residents actually pay the taxes on the waterfront properties– as in the case of the ABC Club – the lands are considered public, and are not gated.
“Friday Harbour seems to have just taken this over,” said Coun. Alex Waters, suggesting that the root of the problem was the inadequate beach area provided at the resort, something that he called a “design flaw.”
Dudley noted that before Friday Harbour was constructed, he met with the developers and pointed out that the beach area east of the resort was private. They were “well aware” that Block B was not theirs, he said.
He acknowledged that there are numerous road end water access points in Innisfil, but argued that each one is unique, and should be considered individually. “I don’t think there’s a ‘one-size-fits-all’ solution,” said Dudley, pointing out West Street is the only beach that is adjacent to a “large conglomerate.”
Manager of Legal and Clerk Services, Lee Parkin confirmed that legal opinion was that the wording of the deed contains no language that would prevent the town “from using the land as they wish. The town makes it public because we generally do that.”
Residents of Plan 1139 are still free to use the beach, he said.
Mayor Lynn Dollin agreed, noting that when the previous council attempted to dispose of some of the smaller road ends, and use the money generated to make improvements to the remaining town properties, the decision was “met with massive opposition,” and quickly abandoned.
Instead, all 46 properties were made public, to provide increased access to the water. She noted that some of the other access points are also busy, for example used for commercial purposes that include ice hut operations.
However, Coun. Waters, pointing to a sale of a road end to private owners just last year, asked if the town could consider selling Block B to the residents of subdivision 1139, as an option.
Chief Administrative Officer Jason Reynar stepped in “to aid in the discussion,” offering to brief the CEO of Friday Harbour Resort on the issue.
When Deputy Mayor Davidson asked for a staff report on the issue, Reynar asked for greater clarity on what was expected. “The legal circumstances of this situation are quite clear, and I wouldn’t want us spending more money on external legal or tying up our legal department who (are) very busy with pandemic interpretation at the moment,” he said.
At the end of the discussion, Innisfil Council voted to receive the petition, and ask for a staff report after the CAO has had discussions with Friday Harbour regarding “operational issues.”
“Make sure the residents are notified, so they have their say,” added Coun. Carolyn Payne.
Coun. Rob Nicol pointed out that Friday Harbour “are residents too. They pay taxes.” All public beaches in Innisfil are open to “taxpayers and their guests,” he said.
