Ilse Grosberg v. Township of Norwich, 1995 ONAFRAAT 30

CLARK-PRATT DRAIN 1994 (RE) Township of Norwich Ilse Grosberg

CLARK-PRATT DRAIN 1994 (RE), 1995 ONAFRAAT 30

August 30, 1995

DATE OF DECISION:

October 19, 1995

1995 ONAFRAAT 30

CLARK-PRATT DRAIN 1994

An Appeal of Ilse Grosberg from the Report of J. W. Kuntze, P. Eng., dated December 20, 1994, on the Clark-Pratt Drain 1994, in the Township of Norwich, in the County of Oxford.

REASONS FOR DECISION

This Appeal was launched by the Appellant, Ilse Grosberg, pursuant to s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D. 17 (the Act) was heard on August 30, 1995.

The proceeding was initiated by the Council of the Township of Norwich, initially in response to a Petition of Freeway Motor Inn Ltd., the owner of the N. Pt. of Lot 11, Con. 1, in the Township of Norwich, pursuant to s. 4(l)(a) of the Act. At the meeting to consider the Preliminary Report, a further Petition pursuant to s. 4(])(a) of the Act was filed with the Township by a number of owners of residential lots in the S. Pt. Lot 11, Con. 1, in the Township of Blandford-Blenheim. Council directed the Engineer to prepare one Report in reply to both of the Petitions.

Freeway Motor Inn Ltd. is the owner of a rectangular parcel of land containing 6.4 ha in the N. Pt. of Lot 11, Con. 1, Township of Norwich fronting on the south limit of Highway # 2. Immediately south of the southerly limit of Highway # 2 is a low area where there is almost continuous ponding of water to an extent of approximately ½ ha. The Petitioner has petitioned for an outlet to drain the low area. The parcel is cropped in soybeans except for the low area that is flooded.

The seven residential owners who have petitioned for drainage, are the owners of parcels in the S. Pt. Lot 11, Con. 1, Township of Blandford-Blenheim, fronting on the north limit of Highway # 2. The lands drop off rather steeply a short distance north of the highway, the rear yards of the residential properties are quite wet. The residents have petitioned for drainage and an outlet for the wet area.

The Appellant Ilse Grosberg, is the owner of a 2.2 ha parcel in the S. Pt. Lot 11, Con. 1, Township of Blandford-Blenheim, directly across from the lands of the Petitioner Freeway Motor Inn Ltd.

The watershed is presently served, to a very limited extent, by the Clark-Pratt Drain. The drain is a covered drain housed in 7" to 8 " diameter tile. It was constructed in 1920. It originates at a catchbasin on the south side of Highway # 2 in the Township of Norwich, courses northerly across Highway# 2, Lot 11 and 12, Con. 1, Township of Blandford-Blenheim to outlet into the Cornell Drain. The drain is in a very poor state of repair and provides very little service for the watershed.

The Engineer recommends replacing the original Clark-Pratt Drain with a new Main Drain 1,158 m long, along the same route, housed in 400 mm (16") to 250 mm (10") tile. The drain will have an outlet in the Welford-Lampman Drain, Branch B (part of the Cornell Drain system), constructed in 1982. Catchbasins are located along the route to inlet surface waters. The residential lands will be served by Branch A, also a covered drain 253 m long housed in 250 mm to 200 mm tile, with catchbasin to inlet surface waters. The branch outlets into the Main Drain at Sta. 0 + 927, approximately 70 m north of the northerly boundary of the Appellant's lands. The estimated cost of the work is $66,000.00. The drain serves a watershed of 33.6 ha (83 ac). The lands in the watershed are primarily agricultural with the exception of the residential properties on the north side of the Highway, an O.P.P. Station on the south side of the Highway immediately east of Freeway Motor Inn Ltd. and a golf course.

In her Notice of Appeal, the Appellant objects to the non-agricultural designation assigned to her lands by the Engineer. She asks that the designation be changed from non-agricultural to agricultural, so that the lands would be eligible for the Provincial Grant. In addition to this, she objects to the amount of her assessment.

The Appellant's lands have been assessed the sum of $2,700.00 for Benefit for the Main Drain and $500.00 for Benefit for Branch A. They have also been assessed the sum of $786. 00 for Outlet for the Main Drain and $74.00 for Branch A, for a total assessment of $4,060.00.

The Engineer valued the benefit accruing to the lands of the Appellant from the Main Drain at $20.00 per/m of length of drain coursing over her lands. There are 135 m of drain over the Appellant's lands; therefore, the lands have been assessed the sum of $2,700.00 for Benefit. He levied the sum of $500.00 as "Direct Benefit" accruing to the lands of the Appellant from Branch A. Four meters of Branch A course over her lands and there is a catchbasin on the boundary between her lands and the lands to the east to inlet surface waters.

In support of the Benefit Assessment levied against the Appellant's lands for the Main Drain, the Engineer pointed out that at the present time, water is bubbling out of the old drain at the southerly limit of her lands. As a result, there is a narrow, wet strip across the lands from the front of the property to the rear. The strip of land is therefore almost useless. When the new drain is constructed, the water problem will be solved.

The Appellant's lands drop off at the rear, like the residential lots. The rear of the lands is quite wet. Branch A will provide an outlet for the rear part of her lands and the catchbasin eliminates ponding of surface waters.

The Engineer gave three reasons for not designating the lands of the Appellant agricultural. First, the property is zoned residential. Second, the property is not used for agricultural purposes and does not appear to have been used for agricultural purposes in recent years. At the present time, it is vacant with an abandoned house on it. Third, the property is not large enough for agricultural designation at 2.2 ha (5.4 ac). In general, it is his practice that all properties 2.0 ha or smaller are designated as non-agricultural except in special circumstances, such as parcels with orchards or market garden on them. The third criteria was apparently suggested by OMAF as a guideline for Engineers in designating lands eligible for the Provincial Grant. The Engineer testified that he did not give much weight to the third factor. Since, in fact, the Appellant's lands exceed the 2 ha limit, in that the area is 2.2 ha. His primary reason for designating them non-agricultural is that they are not now used for agricultural purposes, nor does it appear they have for many years been used for agricultural purposes, and therefore they should be designated as non-agricultural. He gave some weight to the fact that the lands are zoned residential.

The Appellant, Ilse Grosberg, gave evidence at the hearing. She stated that in 1960, they purchased 40 ac of the 50 ac of land owned by their predecessor in title. He subsequently subdivided 5 ac of the 10 ac he had retained and sold the residential properties fronting on Highway #2. In 1968, he sold the remaining 5 ac with the old farmhouse on it to the Appellants. In 1968, the Appellants sold the 40 ac they had purchased in the early 1960's. They have never lived in the house. They have never farmed the lands. It appears that there might have been a small garden in the vicinity of the home. The Appellant stated that she talked to the Clerk's Office of Blandford-Blenheim and they told her that the lands are not zoned agricultural but designated as existing agricultural. She points to the lands of the Petitioner, Freeway Motor Inn Ltd., which are zoned restricted industrial. She also points to the lands of H., C. & J. Vink, Pt. Lot 12, Con. 1, in the Township of Blandford Blenheim, which are being developed as a golf course. Both of these lands the Engineer has designated as agricultural lands and are eligible for the one-third Provincial Grant. She asks that we change the designation in the Report from non-agricultural to agricultural, so the lands will be eligible for the one-third Provincial Grant. She further states that she receives no benefit from the new drain. It is being constructed entirely to drain the pond on the Freeway Motor Inn Ltd. property so that he can fill the area in and develop it as a commercial use. For this reason, it is her view that he should be paying the bulk of the costs of constructing this drain. She raised no specific objections as to her assessment on Branch A.

We have visited the site and carefully viewed the lands of the Appellant and the surrounding area. It is quite apparent that these lands are all in the path of development extending easterly from the City of Woodstock. Immediately west of the Appellant's lands, there is a substantial shopping mall. On the south side of Highway #2, there are industrial and commercial establishments except for the lands of Freeway Motor Inn Ltd.

It is quite clear that the lands of the Appellant have not been cultivated for many years, and perhaps they have never been cultivated and cropped for agricultural purposes. They might have, in the past, served as pasture lands. They are extremely rugged, and it would be almost impossible to cultivate them. However, they could serve as marginal pasture lands. As already noted, they are a small holding of 2.2 ha. The Appellant has no intention of cultivating these lands. For these reasons, we will not disturb the non-agricultural designation given to the lands by the Engineer.

In the Reasons for Decision in a stated case, (Ref.) of the Corporation of the Township of Morris from the Report of J.A. McBride, P. Eng., on the Nichol Municipal Drain, 1994, in the Township of Morris, in the County of Huron, rendered by Maurice Armstrong, P. Eng., Vice Chairperson and Bernard J. Goodal, Chairperson on August 25, 1994 (unfortunately for some unknown reason these Reasons are not reproduced in the Consolidated Reasons of the Ontario Drainage Tribunal, 1994) we put the matter as follows:

"Section 85 - Grants may be made in respect of,

(a) Assessments made under this Act upon lands used for agricultural purposes. The section places no restrictions upon the making of grants because of their official plan designation or their zoning. Therefore, whether the assessment levied against the lands is eligible for a grant does not depend on the designation placed upon the lands in the Official Plan or zoning by-law or their future potential use".

If, in fact, the lands are used for agricultural purposes, in our view, the size of the parcel is irrelevant and the designation or zoning of the parcel is irrelevant. The only relevant factor is their use.

The Application to change the designation of the Appellant's lands to agricultural is therefore dismissed.

We do, however, feel that the assessment levied against the Appellant's land for the Main Drain by the Engineer is too high. The Benefit Assessment levied against her lands in the sum of $500.00 for Branch A is equitable. Even though only 4 m of Branch A pass over her lands, the drain does provide a direct outlet for the low-lying lands at the rear and the catchbasin surface inlet to eliminate surface ponding.

In determining the value of the advantages accruing to the lands of the Appellant from the Main Drain, the most important feature of the parcel to be considered is the physical ruggedness of the lands. It is true that there is water bubbling from the old drain along the ravine in which it is located from the northerly limit of Highway #2 for approximately three-quarters of the depth of the lands. When the drain is repaired, this strip of land will no longer be wet; however, at the same time, it cannot and has never been used for any purpose other than grass and trees. The balance of the lands slope northerly and therefore the waters from them, whether by subsurface drainage or surface waters, will enter the proposed drainage works at the next catchbasin at the northerly limit of the Appellant's lands. As we have already pointed out, the lands are very rough and probably could not be farmed even if they were provided with a full subsurface and surface drainage system. In the circumstances, we cannot see how the advantages accruing to the lands of the Appellant from the Main Drain can be worth $2,700.00.

In our opinion, the Benefit Assessment levied against the lands of the Appellant for the Main Drain should be reduced by $1,000.00.

An Order will therefore go reducing the Benefit Assessment of the Appellant's lands comprising Pt. Lot 11, Con. 1, in the Township of Blandford-Blenheim, Roll #010-010-024 from the sum of $2,700.00 to $1,700.00. All of the other assessments levied against the lands of the Appellant are equitable.

The Engineer has designated the lands of H., C. & J. Vink, being Pt. Lot 12, Con. 1, Township of Blandford-Blenheim, as agricultural. The evidence clearly indicates that for many years now these lands have not been used for agricultural purposes. Since 1993, the owners have been developing the lands for the purpose of a golf course. This work is well advanced, including the drainage, which included the modification of the Municipal Drain by Vink without any authority to do so. Certainly, these lands should not be designated as agricultural. The Engineer agreed that this designation should he changed to non-agricultural lands. An Order will therefore go designating the lands of H., C. & J. Vink as non-agricultural.

The reduction that we have made in the Benefit Assessment of the Appellant Grosberg, in the sum of $1,000.00 shall be added to the Benefit Assessment of Freeway Motor Inn Ltd. Pt Lot 11, Con. 1, Township of Norwich, Roll #040-050-004, in the sum of $500.00 and the balance of $500.00 shall be added to the Outlet Assessment of Highway #2, Ministry of Transportation of Ontario for the Main Drain.

It is quite clear that the main purpose of these drainage works is to drain the depressed area on the Freeway Motor Inn Ltd. lands. Since these lands abut the southerly limit of Highway #2, that ponding also effects the Highway. Furthermore, this is a four-lane highway, highly developed and well-drained. The rate at which the water will run off the Highway property will be at least four times as great as the rate at which it will run off the farmlands. The rate of Outlet Assessment on the Highway should therefore be at least four times the rate of Outlet Assessment on the neighbouring farmland. Barbara Kay Holdings Ltd. is assessed for Outlet at the rate of $625.00 per ha., which means that Highway #2 should be assessed for Outlet at a rate of at least $2,500.00 per ha. An increase of $500.00 in the Highway #2 Outlet Assessment to $2,872.00 on 1.10 ha. is consistent with this. The Benefit Assessment levied against Freeway Motor Inn Ltd. was $5,000.00. It seems to us that even with the $500.00 added, the assessment continues to be more than equitable.

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

Dated: October 19, 1995.

Betty Lambert, panel member

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

Bernard J. Goodal, Chairperson