Katherine Cavanaugh et al. v. Town of LaSalle, 1997 ONAFRAAT 16

Agriculture, Food and Rural Affairs Appeal Tribunal

Appeal: Nantais Drain, Town of LaSalle Neutral Citation: 1997 ONAFRAAT 16 Statute: Drainage Act Hearing: April 17, 1997 Date of Decision: May 14, 1997 File: 1997-16

In the matter of: The Drainage Act R.S.O. 1990, Chapter D.17, as amended.

And in the matter of: An Appeal to the Ontario Drainage Tribunal by Mrs. Katherine Cavanaugh, Mr. Luigi Troiani, Mr. Guilio Nacci, and Mr. F. Nacci under Sections 48 & 54 of the Drainage Act with respect to the repair and improvement of the Nantais Drain, Town of LaSalle

Before: Mr. Herb Todgham, Vice-Chair; Mr. John Taylor, Vice-Chair; Mr. Warren Jenner, Member.

Appearances: Mrs. Katherine Cavanaugh, appellant Mr. Luigi Troiani, appellant Mr. Guilio Nacci, appellant Mr. Ed LaFontaine, on behalf of the respondent, the Town of LaSalle.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Town of LaSalle at LaSalle, Ontario on April 17, 1997. Mr. Kenneth Antaya, Clerk of the Town of LaSalle performed the duties of the Clerk of the Tribunal.

Mrs. Katherine Cavanaugh, Mr. Luigi Troiani, Mr. Guilio Nacci, and Mr. F. Nacci appealed to the Ontario Drainage Tribunal (the Tribunal) under Sections 48 & 54 of the Drainage Act (the Act) with respect to the repair and improvement of the Nantais Drain, Town of LaSalle (the Town).

Section 48(1) of the Act is as follows:

48. (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

(b) the drainage works should be modified on grounds to be stated;

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,

may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46(2), as the case may be.

Section 54(1) of the Act is as follows:

54. (1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the Clerk of the Tribunal, given to the Clerk of the initiating municipality, from the decision of the Court of Revision or from its omission, neglect or refusal to hear or decide an appeal within twenty‑one days of the pronouncement of the decision of the Court of Revision or of any matter evidencing such omission, neglect or refusal.

At the beginning of the hearing the Tribunal ordered that all of the people assessed or compensated in the December 20, 1996 engineer's report for the Nantais drain be made parties to the hearing.

The Background

The Nantais Drain in the Town of LaSalle has been in existence since at least 1887. It outlets in the Cahill Drain and extends northerly therefrom to a point just south of Todd Lane. There is a branch of the drain which extends easterly from the north-south section towards Dalton Avenue picking up the drainage and storm water runoff from the housing projects along Cabot Avenue, Canada Avenue, Dalton Avenue and Oxley Avenue. The portion of the drain that is the subject of the report and this appeal is the section that flows north-south to the outlet in the Cahill Drain.

The lands in the area had been subdivided with street patterns and lots laid out early in the century. Many of these old plans have been deregistered but the streets have not all been closed and transferred out of the ownership of the municipality.

Dunkirk Avenue is an unopened road allowance, owned by the Municipality, running north and south parallel to the Nantais drain adjacent to the land owned by the appellant Mrs. Cavanaugh. The Nantais drain is located on the Cavanaugh property approximately fifty feet to the east of the west property boundary which is the east limit of Dunkirk Avenue. The appellants Nacci (on the north side) and Troiani (on the south side) own lands that face onto an unopened road allowance known as Kitchener Avenue. Kitchener Avenue runs east west crossing the Nantais drain.

The work proposed involves deepening the Nantais Drain to provide outlet depth and capacity for a proposed housing development in the north part of the watershed. This involves deepening the drain and widening the drain across the lands of Mr. Nacci. The drain is deepened across the lands of Mr. Troiani but the widening takes place to the west away from Mr. Troiani. At Washington Avenue (the North boundary of the Cavanaugh property) the drain is to be moved westerly on the property of Mrs. Cavanaugh. The northerly 90 meters of drain is to be enclosed in a pipe and the rest is to be an open ditch moved so that the westerly top of bank is the centreline of the property known as Dunkirk Avenue. The existing channel of the Nantais Drain on the Cavanaugh property is to be filled in.

The estimated cost of this work is $426,000, including the cost of the engineering, and it is assessed against the three properties in the north part of the watershed that are currently negotiating a subdivision agreement with the municipality. This assessment is arrived at by agreement of the owners as opposed to a strict compliance with the Act.

The net result on the lands of the appellants is:

Mr. Nacci the drain is to be deepened and the necessary widening encroaches on the property by varying amounts from 0 to 3 meters resulting in an additional setback from the top of the bank requirement of 0.7 meters to 3.7 meters.

Mr. Troiani the drain is to be deepened and the necessary widening will all be on the property west of the drain, there will be no widening on the Troiani property. The setback from the top of bank requirement is increased by 0.7 meters.

Mrs. Cavanaugh the existing drain is to be filled in. The remaining open ditch is to be moved so that the west top of bank is at the centre line of the unopened road allowance known as Dunkirk Avenue. Mrs. Cavanaugh will gain the use of a strip of land 50 feet wide along this section of drain. The northerly 90 meters (approximately 40% of the length of the drain on this property) adjacent to Washington Avenue, is to be enclosed in a pipe so there will no longer be any ditch on this part of the property.

The appellants have appealed the allowances provided by the engineer for land taken for this work and that the drain should be modified.

The Issue

The issues before the Tribunal are:

1/ Should the drain on the Cavanaugh property be moved entirely onto Dunkirk Avenue?

2/ Are the allowances appropriate?

The Findings

Mrs. Cavanaugh told the Tribunal that she agrees with Mr. LaFontaine that the Nantais drain, as it exists from Washington to the Cahill Drain, has made a 50 foot wide strip of her property between the drain and her west property limit useless for development purposes. She said that she had an implement shed built on this strip of land but that it had burned down recently. She said that except for the shed she is presently unable to use this 50 feet of property plus the 30 feet of property that the drain is now on. However, she asked the Tribunal to order the drain moved further west so it is entirely on the municipal property known as Dunkirk Avenue. If this happens her concerns would be eliminated. In the alternative, Mrs. Cavanaugh asked the Tribunal to order payment of compensation for the land taken to relocate the drain. Mrs. Cavanaugh offered no evidence as to how much compensation would be appropriate nor did she seem to place any value on the strip of land along the drain that she will be able to use once the drainage work has been completed.

Mr. Luigi Troiani told the Tribunal that he would like the drain enclosed where it passes his property as this would eliminate the effect of the drain on his land. As an alternative, he said that he is prepared to swap the land needed for the drain for a lot in the proposed subdivision on the north part of the watershed. He argued that the drain was effectively taking a seven meter strip from his land. He would swap for a 60 foot lot, pay for the difference in area at the same price as proposed in the report for his land and pay for the development costs. Mr. Nacci proposed a similar solution to his concerns. Both appellants argued that, when they want to develop their lands they will be subjected to increased costs as they will have to pay for a large culvert on Kitchener Avenue to provide access to their land as opposed to the small culvert needed to cross the present ditch.

All of the appellants told the Tribunal that their lands will receive no benefit from the proposed work. In their view, the work was necessary to provide for the development of the land to the north and they should not have to pay any of the cost.

Mr. Ed LaFontaine, P. Eng., the engineer who prepared the report on the Nantais Drain spoke on behalf of the Town. Mr. LaFontaine said that the estimated cost of the work is $426,000 and it is shared by agreement of the proposed developers 478230 Ontario Inc. (Sovereign Woods), Caboto Construction Limited, NCL Limited and Eugene and Marisa Mencarelli. No cost is charged to any other party in the drainage area. The drain is designed with capacity to drain the watershed including the lands of the appellants

According to Mr. LaFontaine, at the site meeting Mrs. Cavanaugh objected to the construction and wanted the drain moved off her property at no cost to her. The others did not object to the work. Some landowners wanted the drain covered in front of their land. Mr. LaFontaine said he advised these people the drain could be covered but they would have to pay the increased costs. He provided a cost estimate for the owners who would be assessed for this work and the affected property owners were asked to indicate if they wanted the work done. Mr. Nacci indicated in writing that he was not prepared to pay any cost and Mr. Troiani did not respond. Since the owners were not prepared to pay the increased cost, the drain was left as an open ditch as it passed the Nacci and Troiani properties.

Mr. LaFontaine said that he negotiated with Mrs. Cavanaugh and her solicitor and real estate agent to establish the proposed alignment and value of the allowances. Since the existing drain alignment is 50 feet east of the west property boundary this restricted the use of a substantial piece of the property. The proposed drain provides a covered portion of drain from where it crosses Washington Avenue to Landsdowne Avenue. Mr. LaFontaine said he negotiated with the town to obtain half of the road allowance known as Dunkirk Ave. for a right of way for the drain and then proposed to relocate the top of the west bank of the drain at the centreline of Dunkirk Ave. The result is that for 60% of the length of drain on her property, Mrs. Cavanaugh recovers the 30 foot strip of land that is currently occupied by the drain plus about half of the 50 foot strip presently between the drain and her west boundary and, in addition, she has about 40% of the length of the drain on her property enclosed in a covered drain at no cost to her.

Mr. LaFontaine said that he based his calculations of allowances on the properties as they now exist. He recognized that the town has set-back requirements from existing drains and factored this into his calculations of the amount of allowances. He used the information obtained from a real estate appraiser as a basis of his allowances but he adjusted the figures for the present situation. In arriving at his allowance for Mr. Troiani, Mr. LaFontaine recognized that the additional set-back requirement was minimal and he made an allowance of $326.00 for the working space. For Mr. Nacci a small amount of land is taken for the construction and working space and he allowed a total of $528,00 for these two items. Mr. LaFontaine used a figure of $2.00 per square meter in calculating his allowances for land taken and 25% of that for working width. Mr. LaFontaine argued that his figures reflect the current state of this land and considers:

• the likelihood of development and the restrictions already placed on this land by the Town’s set-back requirement; and

• the benefits provided to the appellant’s lands by the proposed work all at no cost to the appellants.

Mr. LaFontaine introduced Mr. Ron Derochie, a certified real estate appraiser. Mr. Derochie told the Tribunal that he had appraised the Cavanaugh property in its present state and then offered an opinion of the value after the completion of the proposed work. He said that in his opinion, the Cavanaugh property would receive an increase in value of $36,871.00. He based this calculation on a value of $2.00 per square foot which he said was a fair representation of the value of raw land in the area. He said that the value for easement purposes he would set at 25% of the purchase value or $0.50 per square foot.

Mr. Robert Hayes, P. Eng., the Town engineer for the past 17 years, told the Tribunal that when an unopened road allowance is closed up, the Town has to transfer half of the property to each of the adjoining owners. For this reason it is not possible for the Town to negotiate moving the drain entirely off the Cavanaugh property onto Dunkirk Ave. beyond the road centreline. He said this was the reason why the proposal has the drain relocated only to the centreline of Dunkirk Avenue.

In summary, Mr. LaFontaine argued that the allowances provided were appropriate since the appellants receive a significant benefit from the fact that the drain is designed with capacity to carry development water from their properties and in the case of Mrs. Cavanaugh, the property receives an immediate benefit from the work.

The Tribunal examined the evidence and made the following findings:

It appeared to the Tribunal that the appellants do not understand the significance of the status of a drain under the Act. Once a drain is constructed by By-law under the Act the municipality is required to maintain that drain. The Act gives the municipality the power to enter onto lands and work on the drain without an easement on the land to do this. It appears to the Tribunal that the mentioning of an easement in this report, and the payment made for it, is more to explain the situation in terms these landowners understand than a requirement of the Act. The Tribunal is interpreting the payment for the easement mentioned in the report as an allowance under Section 29 of the Act and the easement as the working space designation under Section 63 of the Act.

The appellants, Troiani and Nacci, argued that it will be more expensive for them to develop their properties after the construction as they will have to place a larger culvert under Kitchener Avenue and along their west property boundary because the ditch will be larger after the work is done. The Tribunal disagrees with this argument. The size of culvert that must be installed is based on the watershed draining through the area and not on the size of the present ditch. If Mr. Troiani and Mr. Nacci wished to develop their lands right now they would have to install the same size culvert as they will have to install after this work is done.

The Tribunal finds as a fact that the implement shed on the Cavanaugh property has been destroyed by fire and consequently the report requires modification to reflect this fact. The report provided an allowance to Mrs. Cavanaugh to demolish or relocate the shed and in the alternative it made provision for the contractor to reconstruct the shed, with the existing materials, in a location on the property to be determined. This is no longer practical. The Tribunal decided to provide an allowance to Mrs. Cavanaugh of $6,000 for this shed. The contract is to be modified to eliminate the rebuilding requirement. If Mrs. Cavanaugh decides to rebuild the shed it must not be placed in the alignment of the proposed drain and it must comply with the Town’s requirements for set back and any other building code requirements normally applied by the Town.

Mrs. Cavanaugh’s request is to move the drain onto Dunkirk Avenue, the unopened road allowance. The fact that this is a road allowance and it is not being used does not allow the Tribunal to direct its use to become a municipal drain. Forcing the relocation entirely onto the road will force another bend in the drain and may cause additional problems when this road allowance is closed up. In the opinion of the Tribunal, Mrs. Cavanaugh is deriving great benefit from the relocation of the drain. She reclaims the old ditch with the earth from the new drain. She would not be entitled to this fill if the earth was coming from a ditch on the road allowance. She receives a very substantial benefit from enclosing 40% of the length of the drain on her property. She is assessed absolutely nothing for these benefits. In the circumstances, the Tribunal decided to dismiss the appeals of Mrs. Cavanaugh

Addressing the concerns of Mr. Troiani, the Tribunal finds that the proposed works realigns the drain further away from his property. The proposed work does not consume any of his land. He suffers no further damage than he already suffers from the existing drain. The set back that the proposed easement or working space requires is within the set back required by the Town By-law. In the opinion of the Tribunal, Mr. Troiani is in no worse condition after the work than before. In addition, the proposal produces a drain two feet deeper than the existing ditch and will improve the drainage for existing and future development purposes thus making the property more valuable. All this at no cost to Mr. Troiani. The Tribunal decided to dismiss the appeal of Mr. Troiani and confirm the allowance given to this property in the report.

Considering the appeal of Mr. Nacci, the proposal will consume some of his land and extend the setback requirement by a distance varying from 3.7 meters to 0 meters. This may affect the number and size of lots that can be developed on this property. Mr. LaFontaine used an average value of 3 meters to calculate the affected width of the property. Mr. LaFontaine used a figure of $2.00 per square meter for the value of this land taken. In the opinion of the Tribunal this figure is too low for the effect on this property. In the opinion of the Tribunal additional effort will be required to develop this property as a result of the proposed work. The Tribunal decided to fix the allowance for land taken and working space at $1,000 rather than the $538.00 specified in the report

The only evidence given to the Tribunal on the matter of land value was that of Mr. Derochie. These land values were used by Mr. LaFontaine when he did his calculation of allowances. It appears to the Tribunal that all of the owners along the drain were treated in a similar manner by the engineer when calculating allowances. The appellants indicated that they were upset but did not bring any evidence as to what the land values should be. The appellants offered to trade land. There is no provision in the Act for trading of land and in this case the concept of swapping does not appear to be practical and cannot be considered.

The Tribunal was convinced by the arguments that the proposed location of the drain is appropriate and in the best interests of the property owners. The Tribunal confirms the proposed construction.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed and the submissions made the Tribunal orders:

1. The appeal of Mrs. Cavanaugh under Section 48 and Section 54 is dismissed;

2. The appeal of Mr. Troiani under Section 48 and Section 54 is dismissed;

3. The appeal of Mr. Nacci under Section 54 is dismissed;

4. The allowances provided in the report for property Roll Number 21-228 (Felice & Guilio Nacci) for land taken and working space (permanent easement) are to be increased from a total of $528.00 to a total of $1,000.00;

5. The report is to be amended by striking out the requirement for the contractor to reconstruct the shed on the Cavanaugh property. The allowance of $6,000.00 to Mrs. Cavanaugh for the value of the shed is to remain as is in the report. If. Mrs. Cavanaugh decides to rebuild the shed it must not be placed in the alignment of the drain and must comply with the Town’s set-back requirements and all other building code restrictions normally applied by the Town to such structures. If Mrs. Cavanaugh rebuilds the shed where it interferes with either the construction or the maintenance of the drain, the shed is to be removed and the cost of removal charged to the lands of Mrs. Cavanaugh.

6. The work as proposed is confirmed in the location as proposed in the engineer’s report dated December 20, 1996.

7. It is ordered that there be no order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

The reasons for this decision are:

1. All of the appeals under Section 54 are dismissed because none of the appellants are assessed under the report for any of the costs of the work;

2. The Tribunal was convinced by the evidence that the proposed location of the drain is appropriate and in the best interests of the property owners;

3. The Tribunal was convinced that the part of the drain along the Troiani and Nacci properties should not be enclosed as part of this work since the abutting owners who are the only ones to benefit from enclosing this part of the drain refused to pay any of the extra cost of enclosing the drain;

4. The Tribunal decided to increase the allowance to Mr. Nacci to $1000.00 because he will have less land available to him after the project and the project might interfere with the future development of this property;

5. The Tribunal eliminated the requirement for the contractor to reconstruct the shed on the Cavanaugh property because, at the time of the hearing, there was no shed in existence.

Dated at Chatham, Ontario this 14th day of May, 1997.