Chappus Drainage System (Re), 1995 ONAFRAAT 29

ONTARIO DRAINAGE TRIBUNAL

APPEAL:

CHAPPUS DRAINAGE SYSTEM (RE) Town of LaSalle L. & B. Bezaire, C. Black, P. & A. Boggs, A. Butosi, M. A. Reneau and 725654 Ontario Ltd

CHAPPUS DRAINAGE SYSTEM (RE), 1995 ONAFRAAT 29

STATUTE:

Drainage Act

HEARING:

July 19, 1995

DATE OF DECISION:

October 24, 1995

NEUTRAL CITATION:

1995 ONAFRAAT 29

TOWN OF LaSALLE

CHAPPUS DRAINAGE SYSTEM

IN THE MATTER OF:

An Appeal of L. & B. Bezaire and others from a report of E. Lafontaine, P. Eng., dated March 7, 1994 and the Addendum dated February 14, 1995, on the Chappus Drainage System, in the Town of LaSalle in the County of Essex.

DECISION

This appeal came before the Ontario Drainage Tribunal on July 19, 1995 at the Town of LaSalle Municipal Offices 5950 Malden Road, LaSalle 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 E.O. LaFontaine, P. Eng., who prepared and presented the Report dated March 7, 1994 and the Addendum dated February 14, 1995; the Appellants, L. & B. Bezaire, C. Black, P. & A. Boggs, A. Butosi, M. A. Reneau and P. Pajot as agent for 725654 Ontario Ltd, and other assessed owners.

The Clerk of the Town of LaSalle, Kenneth M. Antaya, acted as Clerk of the Tribunal. On hearing the evidence, the submissions and reading the materials field:

1. IT IS ORDERED THAT:

The Special Benefit Assessment levied against all lands for the construction of Drain Crossing Culverts be reduced by 50%.

2. IT IS ORDERED THAT:

The reduction in the Special Benefit Assessment made in paragraph one above be added to the Benefit Assessment levied against the lands and roads of the Corporation of the Town of LaSalle.

3. IT IS ORDERED THAT:

(i) The addendum dated February 14, 1996 and filed as Exhibit #3.

(ii) The letter of E. 0. Lafontaine to Leo Bezaire dated June 22, 1995 and the Schedule of Assessment attached and filed as Exhibit # 4.

(iii) Recommended list of changes in the Schedule of Assessment contained in the addendum dated February 14, 1995 (Exhibit # 3) dated July 20, 1995 and filed as Exhibit # 6, and shall be part of the Report dated March 7, 1994 (filed as exhibit #2).

shall be part of the Report dated March 7, 1994 (filed as Exhibit #2).

4.IT I4. ORDERED THAT:

the revised Schedule of culvert replacement be amended to provide that:

(i) the culvert proposed to be installed at Sta. 0+967 in the Martin Bergeron Drain on the lands owned by Bernadette Mayer, Trustee, Roll # 150 - 064 shall be installed as a single shared culvert at a suitable location to be shared with the owners Belva Nadeau & M. Ackermann, Trustees, Roll# 150 - 065:

(ii) the culvert proposed to be installed at Sta. 0 + 689. 3 in the Nadeaui Drain on the lands owned by Bernadette Mayer, Trustee, Roll # 160 - 151 shall be installed as a single shared culvert at a suitable location to be shared with the owner Belva Nadeau & M. Ackermann, Trustees, Roll #160 - 150.

5. IT IS ORDERED THAT:

The appeal of L. & B. Bezaire be dismissed.

6. 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.

Bernard J. Goodal; Chairperson

REASONS FOR DECISION

This Appeal was launched by the Appellants, L. & B. Bezaire, C. Black, P. & A. Boggs, A. Butosi, M.A. Reneau and P. Pajot as agent for 725654 Ontario Ltd., pursuant to s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D.17 (the Act) was heard on July 19, 1995.

The proceeding was initiated by the Council of the Town of LaSalle in response to a request under s. 78 of the Act.

The Chappus Drainage System is composed of the Main Drain (Chappus Drain) with five branches (Municipal Drains) outletting into it. It is an open drain system approximately 13,000 meters long, serving a watershed of more than 2,000 acres with 850 properties and 600 owners. There is a variety of land uses in the watershed. The primary land use is agricultural, with many registered plans of subdivision on them, which have not been deemed not to be registered plans or revoked. There are numerous residential holdings along the developed roads. It is not possible to trace the complete history of the drainage system, because many records have been destroyed in a fire. It appears as though the last Report recommending work on the system was in 1942.

The Report recommends the cleanout and brushing of the whole system and the reconstruction, replacement or removal of a large number of drain crossing culverts. In the first Report, the estimated cost of the work was $997,000.00. After the Court of Revision on July 26, 1994, the Report was referred back to the Engineer, to incorporate the changes directed by the Court of Revision and to include a Schedule of culverts to be shared by abutting landowners to reduce the high cost of culvert replacement and to revise the Schedules accordingly. The changes are reported in an Addendum to the Report dated February 14, 1995, filed as Exhibit #3 at the hearing. The cost of the proposed drainage works was reduced to $942,500.00. Of the total costs, $137,429.00 has been levied as Special Benefit Assessment against lands where private drain crossing culverts are to be installed.

It has been the practice of the Town of LaSalle and its predecessor Townships, when replacing private drain crossings, to charge the owner of the lands for the materials, and the Town supplied the installation. The Engineer followed this practice in levying assessments against private lands for drain crossings.

The Appeal of L. & B. Bezaire has been resolved with the Minutes of the Resolution contained in a letter of June 22, 1995 from the Engineer addressed to Bezaire, filed as Exhibit #4.

That Appeal will therefore be dismissed.

The remaining five Appellants complained about their assessment. In their submissions, they did not seriously challenge the assessments levied against their lands under the heading "Outlet and Benefit", their primary complaint is, that the assessment levied against their lands as a Special Benefit for the cost of installing the culverts is excessive when compared with a fair market value of the lands. They take the position that they now have culverts which are sufficient and should not be put to the great expense of installing new large culverts for drain crossings. In his investigation, the Engineer found that most of the culverts are in a state of disrepair. They are too short to permit modern farm equipment to cross (they range in length from 4 to 6 meters). They are undersized and at random grades.

A number of the owners, when they learned how much it was going to cost them to have a culvert put in, entered into agreements with their neighbours to share culverts. Many of the culverts being shared are by two people; however, there are two or three culverts that are being shared by three people to lessen the burden on the landowners. This has been done by the owners on their own. They have submitted statements that they will share culverts. The access across those culverts has been left to the owners to be worked out.

Several owners, who own approximately 20 acres of land, have been assessed in excess of $13,000.00. The evidence before us, is that the fair market value of the land without buildings does not exceed $1,500.00 per acre. Most of these small holdings are being worked by tenants who pay on the average rent of $1,000.00 for a 20-acre farm. As an example, Mrs. Reneau, who owns 20 acres of land, receives a yearly rental of $1,050.00. Two culverts are to be installed over her lands to cross two different Branches of the drainage system. In the first Report, her assessment was $21,725.00. She has now agreed to share one of the culverts with two abutting land owners. Her assessment has been reduced to approximately $17,000.00.

Paul Pajot, as agent for 725654 Ontario Ltd., complained about the amount of the assessment levied against the lands of the Corporation. He compares the assessment in the sum of $1,653.00 levied against the lands of the Corporation to the assessment levied against the lands immediately to the north. The lands to the north have an affected area almost double that of the lands of the Corporation, but the total assessment levied against those lands is approximately $300.00 less than the assessment levied against the lands of the Corporation. The difference between the two lands is that there is a registered plan on the lands owned by the Corporation and not on the lands to the north. Since the plan has not been deemed not to be a registered plan the lots are the property of the Corporation; however, the streets and alleys are owned by the Town of LaSalle.

In assessing the lands used for agricultural purposes, with subsisting registered plan on them, the Engineer first levied a fixed sum of $50.00 against each lot on a registered plan and then levied the same rate against the lands as for lands used for agricultural purposes without registered plans on them. Therefore, the lands of the Corporation were assessed $50.00 per lot on the registered plan, plus the rate that would have been levied against those lands as agricultural lands without a registered plan on them.

Mr. Pajot submits that this is most unfair. Out in the field, he continues, there is no difference between them.

The Corporation has been renting these lands and receiving the rent from all of the lands, not just the lots. It has not been rebating any rent to the Town of LaSalle that it gets for the streets and alleys on the plan.

The Engineer, in justifying the assessment levied against the lands of the Corporation, stated that this is the method he has used for all of the lands within the watershed. He has used the same method on other occasions throughout the Town of LaSalle and in other areas of Essex County. He noted that since the registered plans are subsisting plans of subdivision, no severance or consent is required to convey the individual lots on the plan. Therefore, the Corporation, or any other owner of lands with subsisting registered plans on them, could sell any of the lots individually. Whereas the blocks or the agricultural lands cannot be sold in smaller pieces unless a consent is obtained from the Land Division Committee or a registered plan is put on the lands. As soon as a lot is sold and developed, the rate and quantity of water artificially caused to flow from the lot will be substantially increased. Because of this probable, proximate potential use of the lot the $50.00 levy per lot is equitable.

The Appellants further argue that they don't need the 8-meter-long culverts proposed by the Engineer. That much shorter culverts would do. They say that they have no large equipment; as a matter of fact, most of them have no equipment, and consequently do not need the wider culverts. It was suggested that perhaps the length could be cut down to 4 meters or perhaps 6 meters rather than 8 meters.

This does not seem to us like the prudent thing to do. It may very well be that the owners do not need the culvert themselves. However, the tenant who farms these farms. farms with standard farm equipment, and therefore, a culvert should be provided which will accommodate the crossing of that equipment over the drain.

We do, however, feel that to assess such large sums against such small parcels with so meagre of a return is not equitable. As the Appellants argued, the value of their property is probably not increased by the new culverts to any great extent. The new culverts will provide for better drainage over those lands, since the waters will be able to course down the drain to drain the lands. The advantage however is not as large as the Engineer has put it. In our view, the Special Benefit Assessments levied against the lands that are being provided with private drain crossings should be reduced by 50%.

An Order will therefore go that the Special Benefit Assessment levied against all lands for the construction of Drain Crossing Culverts be reduced by 50%.

The reduction made in the Special Benefit Assessment levied for private drain crossings shall be added to the Benefit Assessment of the Town of LaSalle. It seems to us that the public at large is one of the main beneficiaries of the proposed work. There is evidence that there is flooding not only over residential lands in the watershed, but over the public streets and roads in the watershed. The flooding of the roads is not only an inconvenience to the public at large, but poses a danger and contributes to the deterioration of the roads in the watershed. It is therefore proper that a substantial percentage of the costs of the proposed work should be paid by the Town of LaSalle. The Engineer has assessed the sum of $62,080.00 against the roads in the watershed for Benefit and Outlet; that is, 8.2% of the total cost, excluding the Special Benefit Assessment levied against the roads. With the increase that we have ordered, the Town will be paying 16% of the total costs, excluding the Special Benefit Assessment levied against the roads in the watershed. This is much more equitable in the circumstances here.

There is some merit in the objection put forward by the Corporation with respect to the assessment levied against its lands. "In the field" as Mr. Pajot put it, the agricultural lands with the subsisting registered plan on them are no different than the agricultural lands without a subsisting registered plan on them. Therefore, on that basis, it would follow that they should be assessed the same. However, principles of assessment, developed over the years, dictate that it is not only the present use that must be considered in determining the equity of the assessment to be levied against lands, but the probable potential future use of the lands. Applying that principle to the conditions existing here, there is no doubt that the agricultural lands with a subsisting registered plan on them have a much higher probability, perhaps even a likelihood, that an owner will sell a lot which will be developed for residential purposes with a higher runoff co-efficient. The probability of selling or severing parcels from the agricultural lands without subsisting registered plans on them is not nearly as high. It seems to us that the market itself would dictate the probabilities. It takes considerable effort and expense to put a registered plan on the lands or to get a consent from the Land Division Committee. That being the case, it is more probable that the lands with subsisting registered plans on them will be developed prior to the development of the other agricultural lands without subsisting registered plans on them. For these reasons, we agree with the Engineer that a fixed per lot levy is proper.

The next question that should be considered is whether the fixed levy per lot that the Engineer has levied against the lots on registered plan is reasonable. In the circumstances here, being that the roads have not been developed, it may properly be argued that perhaps the levy is high. If we had been making that levy perhaps it would have been lower. However, that is not the test to be applied in determining the equity of the fixed levy that the Engineer had made. He is an Engineer of extensive experience. There is no evidence before us that he has made any error in determining that fixed sum. Even though we would have put it lower, there is no jurisdiction in us to change it. For this reason, the Appeal of the Appellant Corporation shall be dismissed.

Subsequent to the preparation of the revised Schedule of Culvert Replacement, Bernadette Mayea, Trustee, owner of Pt. Lot 14, Con. 1., Roll #160-151 and #150-064 has filed a request dated July 19, 1995, to share the culverts to be installed on the Nadeau Drain and the Martin Bergeron Drain with Belva Nadeau and M. Ackermann, Trustees, owners of Pt. Lot 14, Con. 1, Roll #160-150 and #150-065 (to be filed as Exhibit #6 in the Appeal).

An Order will therefore go that the revised Schedule of culvert replacement be amended to provide that:

(i) the culvert proposed to be installed at Sta. 0 + 967 in the Martin Bergeron Drain on the lands owned by Bernadette Mayea, Trustee, Roll #150-064 shall be installed as a single shared culvert at a suitable location to be shared with the owner Belva Nadeau & M. Ackermann, Trustees, Roll #150-065;

(ii) the culvert proposed to be installed at Sta. 0 + 689.3 in the Nadeau Drain on the lands owned by Bernadette Mayea, Trustee, Roll #160-151 shall be installed as a single shared culvert at a suitable location to be shared with the owner Belva Nadeau & M. Ackermann, Trustees, Roll #160-150.

Since the Report had been prepared there had been an Addendum to the Report, filed as Exhibit #3, and a number of other amendments. In order to clarify what the Report on the Chappus Drainage System consists of in order to avoid any ambiguities in the future, it is ordered that:

(i) The Addendum dated February 14, 1995 and filed as Exhibit #3,

(ii) The letter of E.O. Lafontaine to Leo Bezaire dated June 22, 1995 and the Schedule of Assessment attached and filed as Exhibit #4; and

(iii) Recommended list of changes in the Schedule of Assessment contained in the Addendum dated February 14, 1995 (Exhibit #3) dated July 20, 1995 and filed as Exhibit #6,

shall be part of the Report dated March 7, 1994 (filed as Exhibit #2).

If there are any inconsistencies or conflicts in the documents subsequent to the Report dated March 7, 1994, the document bearing the latest date shall govern.

There will be no Order as to costs, and all parties are responsible for their own costs.

Dated: October 24, 1995.

Warren Jenner, panel member

H.H. Todgham, P. Eng., Vice-Chair

Bernard J. Goodal, Chairperson