Ken Hewitt thought he was buying a little piece of paradise when he purchased a cottage on Cedar Drive in Turkey Point four years ago.
The Haldimand County mayor was looking for something removed from the hurly-burly of political life back home.
Instead, Hewitt has become mired in a jurisdictional dispute involving dozens of his neighbours and Macdonald Turkey Point Marina, which bills itself as “Canada’s largest freshwater marina.”
At issue is the channel that runs east from the marina between Ordnance Avenue and Cedar Drive. Dozens of cottages back onto the waterway, which is used to dock and launch boats, jet skis and the like. The channel serves as the cottagers’ access point to Long Point Bay and Lake Erie.
Difficulties began in 2005 after the Macdonald family acquired the marina from the Christiaen family. The purchase price was $5.3 million. Soon after, a claim to the land under the channel was filed at the Norfolk County courthouse in Simcoe. That claim remains unresolved.
After the Macdonald family took over the marina, property owners who were accustomed to the free use of the channel say they began receiving bills for assorted activities such as docking behind their cottages.
One property owner says he had the entrance to his boathouse blocked with a load of gravel and metal posts. The obstruction was removed after Transport Canada got involved.
Along with others, Hewitt has been drawn into the fray. He can’t understand why marina management refuses to discuss the matter with neighbours face-to-face,
“It was once a very positive working relationship,” Hewitt said. “Now it’s a fractured, one-sided dictatorship. The goal in a normal neighbourhood is to work together for the betterment of the neighbourhood. But what we have here is an adversarial relationship.”
Marina president Danny Macdonald would not discuss the situation when contacted.
“The matter is proceeding through a court process and that’s all I can say at this time,” he said.
Hewitt said Macdonald believes “he owns what goes on under the water and what goes on above the water. That’s offensive to us as property owners who pay taxes for waterfront property.”
Hewitt recently ran afoul of the marina because he installed a 20-foot plastic dock into the channel. Hewitt says he needs the extension because weeds are not controlled and he would be unable to launch his jet skis without it.
On June 11, Hewitt received a letter from the marina warning him about the dock.
“Please be advised the dock you installed – jutting out from your property into the channel – is installed permanently on our property,” marina manager Brad Thomson writes. “It is not permitted as we explained to you previously.
“Please remove the dock within five days of the date of this letter or we will remove it and store it at your expense.”
Jurisdiction over the channel is murky because, in part, cottage deed agreements dating back many decades task the marina with channel maintenance for a set annual fee. Today, Hewitt and his neighbours pay about $200 a year for the marina to dredge the waterway and keep it free of weeds.
While the marina has obligations regarding the channel, cottagers dispute the marina’s claim to the land underneath based on documentation arising from the Crown patent of 1948.
The patent is the founding document for the Ordnance Land Grant — the 66 acres of cottage land at issue. The patent represents the terms and conditions under which the Crown transferred this parcel to private ownership for subsequent development.
The buyer “and his heirs,” the patent says, can have the land “forever, saving, excepting and reserving unto Us, Our Heirs and Successors, the free use, passage and enjoyment of, in, over and upon all navigable waters that now are or may be hereafter found on or under or flowing through or upon any part of the said lands.”
Transport Canada backed the patent in a letter in 2015. The letter was written following an investigation into an obstructed boathouse on Cedar Drive.
“The department considers all waterways within the Turkey Point area – including those in the vicinity of the Macdonald Turkey Point Marina – as navigable features of Lake Erie,” Kelly Thompson, Transport Canada’s navigation protection manager in Ontario at the time, wrote to the complainant.
Turkey Point realtor Ron VandenBussche agrees.
VandenBussche has gathered extensive records on the history of real estate in the resort community. This includes the Ordnance Land Grant and subdivision Plan 546, which is the founding document for cottages in and around the west end of Cedar Drive.
He said the documents leave no doubt that the channel is a navigable waterway open to one and all. No one, VandenBussche added, has the right to levy fees for the use of the shoreline.
“Even the channels in the marina are navigable waterways,” VandenBussche said this week. “So he can’t even stop people from travelling through his marina. He has no jurisdiction. You can’t own land under a navigable waterway. That’s federal land.”
Meanwhile, as the litigation drags on, the toll on the neighbourhood continues to mount.
One of Hewitt’s neighbours is Bill Hutchinson, owner of Hutch’s Restaurant in Hamilton.
On June 14, Hutchinson learned he has been banned from all properties in Turkey Point owned by Macdonald Turkey Point Marina Inc. This includes The Jetty Bar and Grill, the gas docks, “and all waterways within the marina.”
“You are also banned from the property located at 93 Cedar Drive known as the Turkey Point Hotel,” Danny Macdonald writes. “If you are observed or reported to be on these said properties, charges will be laid to the full extent of the law.”
The letter left Hutchinson shaking his head.
“This was just because I helped Ken put his jet skis in the water,” he said.
“I’ve always been told to treat everyone as a customer. But this guy – he has no idea.”