ONTARIO DRAINAGE TRIBUNAL
APPEAL:
GILL ROAD MUNICIPAL DRAIN, 1994 (RE)
Village of Grand Bend
R & N. Culp and M. Willits, D. Golden, I. M. Quinn and V. Harlow & J. Gill
GILL ROAD MUNICIPAL DRAIN, 1994 (RE), 1995 ONAFRAAT 02
STATUTE:
HEARING:
November 29, 1994
January 17, 1995
NEUTRAL CITATION:
1995 ONAFRAAT 02
ONTARIO DRAINAGE TRIBUNAL
IN THE MATTER OF
an Appeal of R. & N. Culp and others from the Report of W. J. Dietrich, P. Eng., dated June 21, 1994 on the Gill Road Municipal Drain 1994, in the Village of Grand Bend, in the County of Lambton
DECISION
This Appeal came before the Ontario Drainage Tribunal on November 29, 1994 (originally scheduled for November 9, 1994) at the Village of Grand Bend, Council Chambers, 4 Ontario Street, Grand Bend, Ontario.
All assessed owners were served with a Notice of Hearing, as evidenced by the Affidavit of Service filed, and invited to make representations.
At that time there appeared before the Tribunal, W.J. Dietrich, P. Eng., who prepared and presented the Report dated June 21, 1994; the Appellants R & N. Culp and M. Willits and D. Golden, I. M. Quinn, V. Harlow & J. Gill, represented by R.M. Sharen as agent, and other assessed owners.
The Clerk of the Village of Grand Bend, Paul Turnbull, acted as Clerk of the Tribunal.
On hearing the evidence, the submissions and reading the·materials filed:
IT IS ORDERED THAT the benefit assessment levied against Gill Road - Village of Grand Bend, be increased to the sum of $70,000.00.
IT IS ORDERED THAT the Outlet Liability Assessment levied against the lands of M. Willits, Roll #10-33, be decreased to zero.
IT IS ORDERED THAT the increase in the Benefit Assessment levied against Gill Road in the sum of $17,750.00 less the decrease in the Outlet Liability Assessment levied against the lands of M. Willits, Roll #10-33, in the sum of $325.00 be applied to reduce the Benefit Assessment levied against all residential properties fronting on Gill Road, the Church of God property, Roll #10-02, the farm property of R. & M. Pollock, Roll #20-100, in the ratio of the individual property Benefit Assessment to the total Benefit Assessment levied against those properties.
IT IS ORDERED THAT the last paragraph on page six of the Report dated June 21, 1994 be deleted and the following substituted therefor:
"After completion, this drain shall be maintained by the Village of Grand Bend out of the general funds of the Village of Grand Bend".
- IT IS ORDERED THAT there be no Order as to costs and all parties are responsible for their own costs.
Attention is drawn to s. 73 of the Drainage Act, R.S.O. 1990, c. D.17.
Dated: January 17, 1995
Bernard J. Goodal, Chairperson, Ontario Drainage Tribunal
REASONS FOR DECISION
This Appeal was launched by the Appellants, R. & N. Culp, M. Willits, L. Gill, D. Golden, I.M. Quinn, and V. Harlow pursuant to s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D. 17 (the Act), was heard on November 29, 1994.
The proceeding was initiated by the Council of the Village of Grand Bend in response to a Petition pursuant to s. 4(1)(a) and s. 4 (l)(c) of the Act. The area requiring drainage is a stretch of Gill Road and a majority of the properties (residential, institutional and commercial) fronting on the east and west side of Gill Road.
The development abutting Gill Road was by way of severances from the original farm lot and therefore rather haphazard. No systematic drainage system had been provided either for the road or for the properties abutting on it. Sometime in the 1950's a tile drain was constructed along the east side of Gill Road. It is a covered drain housed in 200 mm to 300 mm diameter clay tile. It was probably never quite· adequate to properly serve the area. It is even less adequate now with added development in the area and the deterioration of the drain.
The Report recommends the construction of a storm drainage system along the east side of Gill Road to replace the existing drain. The system consists of 450 m of Main Drain, housed in 300 mm to 600 mm diameter. storm sewer pipe, four branches to drain the rear yards of the lots fronting on the east side of Gill Road and to provide an outlet for the agricultural lands to the east, five road crossings to service the properties 6n the west side of the road, 13 catchbasins, one junction box and one manhole. The drain, to be called the Gill Road Municipal Drain 1994, has a total length of 687 m. It serves a watershed of 18.1 ha. The estimated cost of the work is $105,000.00.
The Engineer apportioned the costs of the work among the different land uses and the road as follows:
Agricultural lands (12%)
$11,935.00
Residential lands (19%)
$20,215.00
Institutional and Commercial lands (17%)
$18,214.00
Gill Road (52%)
$55,636.00
At the first meeting on January 19, 1994, the Engineer estimated the cost of the proposed work between $100,000.00 and $110,000.00. At that time, he told the owners that the road would be assessed approximately 50% to 60% of the costs. The rest would be assessed against the lands in the watershed with each residential lot paying approximately $2,000.00 to $2,500.00. The preliminary cost estimate and assessments filed as Exhibit #3, confirmed the initial estimates made by the Engineer.
In the Final Report, filed as Exhibit #2, the benefit assessment for the residential lots fronting on Gill Road ranges from $300.00 to $1,400.00. The outlet assessment ranges from $15.00 to $345.00.
The lots fronting on the east side of Gill Road have been assessed a somewhat higher benefit assessment than the ones fronting on the west side of Gill Road. In the opinion of the Engineer, the lots fronting on the east side of Gill Road are now subject to extensive rear yard ponding, which will be relieved, whereas the lots fronting on the west side of Gill Road primarily benefit by cutoff. Furthermore, the Branch Drains have to be constructed to relieve the rear yard ponding at a cost about two times the cost of the road crossings.
All appeals to the Court of Revision were dismissed by the Court.
The thrust of the argument before us by the Appellants is that they were aware of the probable assessment that would be levied against their properties at the meeting on January 19, 1994. However, they say they were led to believe that there would be a government grant available to finance this work and consequently their final assessments would be much lower. According to the evidence of Mrs. Norene Culp, it was also suggested at that meeting that the probability of getting a Government Grant would be greatly enhanced if a Petition was circulated among the affected owners and presented with the request for the grant. It was she who undertook to circulate the petition among the owners along Gill Road. She was quite successful. Out of the 19 residential owners along the street, 16 signed the petition.
By the time the Report was filed, creditable sources had it, that there would be no grant to help the residential owners with their assessment. However, the agricultural lands would be eligible for a grant under the Act. The issue came to a head at the consideration meeting on July 5, 1994. Council confirmed that no Grants were available to assist the assessed residential owners. A number of the Petitioners threatened to withdraw their names from the Petition. They refrained from doing so, when they were informed that, if they did withdraw and the Petition was insufficient, they would be liable to pay all of the costs thrown away to date. None of the Petitioners withdrew their names from the Petition. Council adopted the Report.
The second contention of the Appellants is that all other roads in the Village where storm drainage systems have been constructed, the costs were paid out of Grants received from the Provincial Government or out of the road budget. Mrs. Culp testified, and Mr. Markham, the Works Superintendent, confirmed that in the past a number of applications were specifically made for Grants to construct a storm water system along Gill Road. Each time the funds were available, they were diverted to other higher priority projects. Furthermore, she continues, Council intends to use some of the infrastructure monies to pay the Village's share of the assessment levied against Gill Road.
There is a· strong feeling among the Appellants that they are being discriminated against. They say that there is no reason why they should be treated differently than other residents of the Village where storm water systems have been provided.
The Appellant's further allege that, in their opinion, the agricultural lands, immediately east of the rear of the lots fronting on east side of Gill Road, being Pt. Lot 1, Concession Aux Sable are under assessed. The farmlands with an affected area of 10. 93 ha have been assessed the sum of $4,000.00 by way of benefit and $6,852.00 by way of outlet liability for a total assessment of $10,852.00.
They also state that the Lambton County Board of Education, lands fronting on the west side of Gill Road, with an affected area of 1.25 ha are under assessed. Those lands have been assessed the sum of $5,600.00 benefit·assessment, $3,486.00 outlet liability for a total assessment of $9,086.00. The Appellants suggest that, in the Official Plan, these lands are to be taken over by the Village for the Public Works Department. That is one of the reasons why the drainage is being provided at this time.
Robert Sharen, who acted as agent for the Appellants, Gill, Quinn, Golden and Harlow, supported the submission that the farmlands and the Lambton County Board of Education lands are assessed too low. He stated that 60% of the watershed are farmlands. His calculations show that the farmlands have been assessed at a rate of $929.00 per/ha whereas the residential lands have been assessed at a rate of $17,285.00 per/ha. He suggested that there is no need for the drainage works now that the farmer has contour ploughed the lands to direct the surface flows southerly. The ponding at the rear of the lots has abated. There was a severe storm recently and there were no problems with drainage.
He points out that, Gill Road is to become a major artery in the Village to serve a new residential development of 40 or more lots on the east side of the Aux Sable River, south of the area requiring drainage. There is no other access to that area without crossing the River. It will be the only means of access to the proposed development. It will be subject to considerable heavy traffic during construction and added traffic after the development is completed.
The Appellants did not really seriously contend that there would be no increase in value of the residential properties after the construction of the proposed drainage works. Nor do they seriously question that other advantages also accrue to their lands besides the increase in property value. They do however state that the increase in value of their properties would not be as great as the assessment levied against them. But their primary complaint remains, the inequity of the burden that has been placed upon them.
Murray Willits who is an owner of a residentia1 property fronting on the west side of Gill Road and which extends all the way to the Aux Sable River cannot see why he should be assessed anything. As he facetiously put it, he is prepared to make a gift to the project of the sum that has been assessed against his lands; however, in his view, he is paying for nothing. His property, according to him, slopes westerly from Gill Road to the river. Therefore, all of his surface waters drain out to the river. He says that he would have to pump his water to make use of the drain.
He also alleged, that the petition had been altered after it was filed on April 5, 1994. He pointed out a number of names that had not been on the petition on· that date. There was no rebuttal by anyone to those allegations.
Mr. Markham, the Works Superintendent, in his evidence stated that Gill Road cannot be upgraded until there is an adequate drainage system. In his evidence, he described the drainage problems in the area requiring drainage, the inadequacy and the serious deterioration of the existing drain. The conditions have been exacerbated because the owners have filled in the roadside ditches and built driveways over the catch basins.
Phil McGuire, a member of Council, apologized to Mrs. ·Culp and to the other assessed owners if they had been misled by anything that Council had said with respect to the availability of Grants to residential owners. He emphasized that there was no intent by Council to mislead anyone. He pointed out that the owners were told in the preliminary stages of the proceeding that the assessments against their lands would be greater than they actually are. He realizes that even though it may be unfair to the residents along Gill Road, the money just is·not there and if the work is to be done, it will be necessary to·raise the money by way of assessment against the affected lands. Government grants have been greatly reduced. The burden must now be borne by those who derive benefit from the works.
Although some of the Appellants and others at the hearing have hinted that perhaps the work is not now required, we cannot accept that hint as any more than that. A video that was made during a severe storm event in 1992 clearly indicates that the work is required and should proceed. The only question that we need to determine is: Are the assessments levied against the lands of the Appellants equitable?
In determining the equity of the individual assessments, it is necessary to go back and consider the equity of the apportionment of the total costs of the work among the several categories of user in the watershed. The primary question that is to be asked in analyzing or reviewing the equity is: What is the primary purpose of the proposed drainage works?
The request for drainage was made by the residential owners, perhaps labouring under a misapprehension, abutting on Gill Road to the Superintendent of Works of the Village of Grand Bend. The road and a number of the residential properties have a drainage problem. Both the road and the residential properties have lived with the problem for some time. If need be, they could continue to live with the problem for some time longer.
A substantial residential development is about to take place south of the area requiring drainage. This development can only be accessed, without having to build a bridge across the Aux Sable River, by Gill Road. Gill Road is not now of a sufficient class to properly service the proposed development. To provide a proper access for that development, it is necessary to upgrade Gill Road. Gill Road cannot be upgraded to a standard to properly serve the development until a storm drainage system is constructed. From this, it follows that although the proposed drainage works will serve more than one purpose, the primary purpose of constructing these drainage works at this time is to provide a sufficient storm drainage system for Gill Road.
If the primary purpose of the storm drainage system is to provide an adequate storm drainage system for Gill Road; what percentage of the total costs of the proposed drainage works should be assessed against Gill Road? In our view, at least two-thirds of the cost of the work should be assessed against Gill Road; that is, $70,000.00. An Order will therefore go, increasing the Benefit Assessment levied against Gill Road from $52,258.00 to $70,000.00.
The increase in the Benefit Assessment levied against Gill Road in the sum of $17,750.00 less the reduction in the outlet liability levied against the lands of M. Willits, Roll #10-33 (made later on in these Reasons) shall be applied to reduce the benefit assessments levied against all residential properties fronting on Gill Road, the Church of God property, Roll #10-02, the farm property of R. & N. Pollock, Roll #20-100, in proportion that the individual properties Benefit Assessment is to the total Benefit Assessment levied against those properties.
We cannot accept the contention that the assessment levied against the farmlands is too low. The Engineer, in arriving at the Benefit Assessment to be levied against the farm, considered the increase in costs of the proposed drainage works to provide an outlet for the subsurface drainage system of the farm and levied the Benefit Assessment accordingly. Similarly with the Outlet Liability. He has considered all of the relevant factors in determining the per/ha rate to be levied against the farmlands. It may appear to be low when compared to the rate levied against the residential lands as calculated by Mr. Sharen, but Mr. Sharen has erred in calculating the rate/unit area. He has made the common mistake made by Appellants by dividing the total assessment levied against the lands by the area of the lands. As we have stated before, such a result has no real meaning. The Benefit Assessment is primarily a function of the length and proximity of the drainage works to the lands assessed, whereas the outlet assessment is primarily a function of the area of the lands assessed. When the calculation· is properly performed, it shows that the rate of outlet assessment levied against the farmlands is approximately $650.00 per/ha and the rate of outlet assessment levied against the residential properties ranges from $1,200.00 per/ha to approximately $2,400.00 per/ha depending on the location of the drain relative to the lands and whether or not a Branch and a catchbasin has to be constructed to rear of the lot to relieve the rear yard ponding.
Mr. Willits' objection to the Benefit Assessment in the sum of $300.00 levied against his land, except to the extent that we have reduced the Benefit Assessment levied against the residential lands, is without merit. The evidence clearly indicates that the lots fronting on the west side of Gill Road get a benefit by the cutoff. That benefit, as calculated for the lands of Mr. Willits, has been calculated in a similar manner as all other lots on the west side of Gill Road and therefore the lands have been properly assessed for benefit.
With the evidence before us, it is difficult to justify the outlet assessment levied against the lands of Mr. Willits. The only evidence before us is that his lands slope westerly from the westerly limit of Gill Road to the river. Therefore, as he has concluded, his surface waters drain to the river rather than to the road. Where then is the justification for assessing his lands for outlet liability?
The Outlet Liability Assessment levied against Mr. Willit's lands, Roll #10-33, in the sum of $325.00 cannot be justified. An Order will therefore go decreasing the Outlet Liability Assessment levied against the lands of M. Willits, Roll #10-33 to zero.
We have also been asked to amend the provisions in the Report for the future maintenance and repair of these drainage works. We are informed by Mr. McGuire that the Council has passed a unanimous resolution that, after these drainage works are constructed, they should be maintained and repaired by the Village of Grand Bend out of its general funds. An Order will therefore go directing that the last paragraph on page 6 of the Report dated June 21, 1994 be deleted and that the following substituted therefor:
"After completion, this drain shall be maintained by the Village of Grand Bend out of the general funds of the Village of Grand Bend".
Since the allegations of Mr. Willits that names had been added to the Petition after it was filed went unanswered, we feel it incumbent upon us to make some comments in that respect. The Petition is fundamental to the scheme of the Act for the construction of petition drains. It has been designed, in as democratic a way as practicable, to construct a drainage works to provide an outlet for an area requiring drainage and assess the costs of the drainage works against all lands that benefit from the drainage works and all lands that use the drainage works as an outlet or for which, when the drainage works are constructed an improved outlet is provided. The Act has incorporated in it, safeguards to provide the assessed owners with a reasonable opportunity at various stages of the proceedings to speak to the question of whether or not the drainage works should be constructed, the way they should be constructed and whether or not the assessment levied against the lands of an owner is equitable. It is therefore imperative that the Petition be not only in the form prescribed by the Act, but that it be completed and amended as provided by the Act.
It is our view that, after the Petitioners have described the area requiring drainage, signed the Petition and delivered it to the Clerk of the Municipality (filed it), the Clerk then dates the Petition, that is the date on which the Petition is deemed to have been filed and signs the Petition acknowledging that it has been filed. After the Petition has been filed and signed by the Clerk, it can only be amended as provided by Section 9(5) of the Act (where the Engineer has determined that the Petition does not comply with s. 4) and Section 10(3) of the Act (Council meeting to consider the Preliminary Report) and s. 42 of the Act (Council meeting to consider the Report). In our opinion, any other amendments to the Petition after it has been filed are not permitted by the Act. A Petition that does not comply with the provisions of the Act is void and vitiates all proceedings taken on it.
We make these comments because of the allegations made by Mr. Willits that have gone unanswered. There is no finding by us of any noncompliance or irregularity with respect to the Petition. The names that have been alleged to be added could very well have been added as provided by the Act. There is no evidence before us that, in fact, that is not the case.
Although the assessed owners complain that they have been unfairly treated by Council because they have to pay for the storm drainage system on their street; whereas, storm drainage systems have been financed out of grants or the road budget for other streets in the Village, may be a valid complaint; that is between them and the Village Council. This is not the forum for the redress of the unfairness. There are other forms or avenues open to them to do that.
There will be no Order as to costs, and all parties are responsible for their own costs.
Dated: January 17, 1995.
ONTARIO DRAINAGE TRIBUNAL
Maurice Armstrong, P. Eng., Vice-Chairperson
H.H. Todgham, P. Eng., Vice-Chairperson
Bernard J. Goodal, Chairperson