Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

1 Stone Road West

Guelph, (Ontario) N1G 4Y2

Tel: (519) 826-3433, Fax: (519) 826-4232

Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2

Tél.: (519) 826-3433, Téléc.: (519) 826-4232

Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Bearss Drain and Wm. Michael Drain

City of Port Colborne

Bearss Drain and Wm. Michael Drain (RE) 1997 ONAFRAAT 29

STATUTE:

Drainage Act

HEARING:

June 25, 1997

DATE OF DECISION:

July 16, 1997

1997-29

NEUTRAL CITATION:

1997 ONAFRAAT 29

Bearss Drain and Wm. Michael Drain

City of Port Colborne

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 under Section 48, Section 54 or both sections of the Drainage Act by Ross L. Benner, Laurent Breton, Patricia Duquette, Tim Benner, Ross Durdan, Robert P. Szymanski, Glenn S. Pfisterer, Donald Michael, John Sherk, Gerald Shaubel, Commodore Allen, Frank Shandala, Edward Michaels Jr., J. Stirling, Douglas B. Fabian, Jean McNamara, Jeannine Pustay, John Betz, Suzanne E. Kates, Martin T. Jeffery, Eileen Stirling, Stephen H. Stirling, Margaret S. Sterling, Edward D’Agostino, Judith Wade, Aldo Biasatti, Peter Palczynski, Douglas Sherk, Coleman A. Felser, Wm. McDougall, Leo Lange, Mary D. George, Ann K. Moore and Mary McAnultz with respect to the Bearss Drain and Wm. Michael Drain, City of Port Colborne.

Before:

Mr. John Taylor, Vice-Chair; Mr. Herb Todgham, Vice-Chair, Mrs. Betty Lambert, Member; Mr. Russell Piper, Member.

Appearances:

Mr. Bon Richeter, assessed owner.

Mr. Commodore Allen, Assessed owner.

Ms. Bernice O’Hear, assessed owner.

Mr. Gerry Shaubel, assessed owner.

Mr. Rick Brady, assessed owner.

Mr. Robert Stretton, assessed owner.

Mr. Tim Benner, assessed owner.

Mr. Douglas Sherk, assessed owner.

Mr. Glenn Pfisterer, assessed owner

Mr. William Parker, assessed owner.

Mr. Joseph Bellonte, assessed owner.

Ms. Marjorie Albee, assessed owner.

Mr. David Fleck, assessed owner.

Mr. Tim Bellonte, witness to the Tribunal.

Mr. René Landry, Drainage Superintendent for the respondent the City of Port Colborne

Mr. John Kuntze, P. Eng., on behalf of the respondent the City of Port Colborne.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers at the City of Port Colborne (the City), Ontario on June 25, 1997, Patricia Premi, Deputy Clerk of the City, performed the duties of the Clerk of the Ontario Drainage Tribunal (the Tribunal).

Several ratepayers appealed to the Tribunal under Sections 48 and 54 of the Drainage Act (the Act) from the engineer’s report on the Bearss Drain & Wm. Michael Drain. The notices of appeal identified issues of the assessment of costs of the drainage works, modification of the design in the engineer’s report and the adjustment of the compensation and allowances in the engineer’s report. Because the proposed assessments are under appeal, the Ontario Drainage Tribunal made an order adding as parties to the appeal all persons assessed or compensated for the drainage works as shown in the engineer’s report and all were notified of this hearing and invited to attend and make representations to the Tribunal.

Section 48 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.

48. (2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1).

R.S.O. 1980, c. 126, s. 48.

Section 54 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.

(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal.

(3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final.

R.S.O. 1980, c. 126, s. 54.

The Background

City records indicate the Bearss Drain and Wm. Michael Drain were first constructed as Award Drains in 1886 and 1898 respectively. Both drains came under the Act in separate engineer’s reports in 1913. In 1979, C. J. Clarke Niagara Ltd. started work on a report to address flooding problems in the watershed of both drains. The final amendment to this report was dated July 29, 1986. Records indicate that this report was not adopted by by-law.

A further study entitled “Bearss Drain Flood Alleviation Study” dated November 1987 was prepared by Sandwell, Swan, Wooster Inc. This study was not prepared under the Act. The study established 176.2 meters (m) as the top elevation for a flood control structure on the Bearss Drain and noted that a pumping scheme should not be required if a flood control structure is built near the Bearss Drain outlet into Lake Erie.

Mr. John Kuntze, P. Eng., prepared the September 30, 1996 report on the Bearss Drain & Wm. Michael Drain. The report was prepared under Section 78 of the Act. He first prepared a Preliminary Report dated March 31, 1995 and, after considering this report, Council of the City directed the preparation of a final report.

The March 31, 1995 Preliminary Report had been initiated by the City of Port Colborne under Section 10 of the Act to address a concern with flooding of low lying lands in the area of the Bearss Drain and the Wm. Michael Drain in Lots 9 and 10, Concession 1 (Humberstone), between Wyldewood Road and Silver Bay Road in the City.

The objectives of the final report are to provide:

• a recommended solution to the flooding problem in the area of the Bearss Drain and the Wm. Michael Drain outlets;

• an estimate of the cost of the proposed work;

• a schedule of assessment to levy the estimated cost to the lands and roads in the watershed of the Bearss Drain;

• an updated schedule of assessment and updated maintenance provisions for future maintenance on the Bearss Drain and Wm. Michael Drain.

The main objective to prevent flooding will be achieved by constructing a berm along both the east and west banks of the Bearss Drain between the block walls near Lake Erie and the Wm. Michael Drain. There would also be a berm constructed along the south bank of the Wm. Michael Drain from the Bearss Drain east for approximately 83m at which point it would run north for about 50m. All berms will be constructed to an elevation of 176.2m with a 4m top width and 2:1 side slopes.

To maintain local drainage into the Bearss Drain it will be necessary to install outlet pipes with Tideflex check valves (to prevent backflow during high lake levels) at the Bearss Drain, West Branch East outlet and in a low area on the Bearss Drain east bank, north of the West Branch East outlet. A new lane crossing will be constructed across the Wm. Michael Drain on the Benner property using two 900mm diameter CSP with Tideflex check valves to complete the flood control measures.

The work proposed is as follows:

Bearss Drain

• Construct a berm along the east bank approximately 375m in length, along the west bank approximately 200m in length.

• Install 2 - 12m lengths of 600mm diameter CSP with Tideflex check valves at a surface drainage outlet and for the West Branch East outlet.

• Ditch cleanout and brushing of the drain from water's edge at Lake Erie to the Wm. Michael Drain outlet.

Wm. Michael Drain

• Construct 83m of berm along the south bank and approximately 50m of berm north along the Benner farm lane.

• Install 2 - 12m lengths of 900mm diameter CSP for the Benner lane crossing.

• Ditch cleanout and brushing of the drain from the outlet to Wyldewood Road and east to east limits of Firelane 13.

The total estimated cost of the work is $ 109,400. The total watershed area is 990 hectares (2,446 acres).

The Issue

The issues before the Tribunal are:

1. Are the assessments as proposed by the engineer and modified by the Court of Revision appropriate?

2. Are the allowances provided in the engineer’s report appropriate?

3. Should the work proposed be modified by deleting the berm proposed on the west bank of the Bearss Drain?

4. Should the work be modified by eliminating all of the proposed berms and the Tideflex check valves and, instead, constructing a control structure with sluice gate(s) on the Bearss Drain near its outlet into Lake Erie?

The Evidence and the Findings

Mr. John Kuntze, P. Eng., the engineer who prepared the report on the Bearss Drain and Wm. Michael Drain told the Tribunal that, at the time of the survey, a number of people indicated reference points of what previous high water levels were. These elevations were recorded in the survey and were close to 176.2 m. He said this evidence convinced him that, in the not too far past, the water level has actually reached or came close to this elevation and so it was appropriate for him to protect lands to the extent of a berm raised to the elevation of 176.2m especially since 176.2 m was also the top elevation of the control structure recommended in the 1987 “Bearss Drain Flood Alleviation Study” prepared by Sandwell, Swan, Wooster Inc.

He said that, of all the drains in the City that outlet directly into Lake Erie, the Bearss Drain is the last one that is not protected from lake water flooding up the drain at times of high water or during a seiche (wind blowing the water to the end of the lake thus raising the water level).

Mr. Kuntze told the Tribunal that he had considered three alternatives for providing protection against lake water flowing up the drain. He considered:

1. Sluice gates -steel gates raised and lowered vertically in a structure near the outlet into Lake Erie.

2. Flap gates - hinged steel plate mounted on the end of a culvert which closes and seals when water level downstream of the culvert rises higher than the water on the upstream side.

3. Tideflex check valve - rubber structure mounted on the end of a culvert; round with transition to a flat vertical shape referred to as a duck bill. Downstream pressure closes the structure, upstream pressure forces the structure open.

Having considered the cost and operation of these structures he recommended using Tideflex check valves.

He said that he had calculated the allowances at $5,600; construction at $72, 790; engineering at $28, 430 and administration at $2,580 for a total estimated cost of $109,400. This cost he separated into $79,500 for flood control - which he assessed as a benefit assessment against the lands and roads subject to flooding on the basis of an equal assessment per lot (in the developed area in the watershed $500 per lot except Firelane 12 which he assessed $100 per lot) and $29,900 for channel cleaning and improvement - which he assessed to the watershed on the basis of benefit ($10,900) and outlet liability ($19,000).

Mr. Bob Richeter, owner of the property at 14 Firelane 12, told the Tribunal that he has owned the property for 24 years. Because the land was low he has imported fill and is now above the water. He had wanted a control at the lake but now is not concerned about the situation because of the fill he paid to install on his lot. He acknowledged that the project is needed but indicated that he should not have to pay for it. He said that, in his opinion, it would be better to put a control at the lake rather than the berms along the drain banks.

Mr. Commodore Allen told the Tribunal that he owns lot 10 Firelane 9, approximately 100 yards from the creek. He said that in the four years he has owned the cottage there has never been flooding on his property. He said the problem is at the end of Firelane 9 where the ditch goes into the Bearss Drain. He said he is opposed to the work on the west bank of the Bearss Drain because the cost to build the berm and control valve are higher than the benefits the property owners will receive. He argued that the 176m contour line on the Ontario Base Map (OBM) showed only a small portion of land on Firelane 9 that was below elevation 176m and the owners of this land could not obtain permits to build. Therefore these lots would not benefit from the project. He said that he should not be assessed for the project and the berm and Tideflex valves should be eliminated from the work.

Mr. Allen told the Tribunal that he has two lots, one with his cottage and the other a vacant lot that is partially used for his septic bed. He said that because he has two lots he is assessed two $500 assessments on his cottage and this is unfair.

Mr. Kuntze told the Tribunal that when he was making his assessments he relied on the assessment roll to determine the number of properties. He said that the principle he tried to apply was one $500 assessment for each lot that could be built on. He said that since he filed his report it has been brought to his attention that some owners had abutting lots and can only build one cottage on the land because of restrictions on septic systems. Mr. Kuntze recommended to the Tribunal that adjustments to the assessment against these properties should be made. He recommended recalculating the number of “buildable” parcels and then dividing the total assessment currently proposed to be levied against lands abutting Firelane 9 and Firelane 7 by the number of buildable parcels and using that figure as the benefit assessment for these parcels of land.

Mr. Kuntze directed Mr. Allen and the Tribunal to the profile of Firelane 9 contained in the report. He said he had taken actual levels along the centreline of Firelane 9 and these are shown on the profile. He pointed out that except for one short section the centerline of the road is below 176.2m in elevation and therefore the entire road is subject to flooding when the water reaches this elevation. He argued that the Tribunal should not give too much weight to the contour line on the OBM map. He said the contour line is an indication of the elevation but not as accurate as a survey on the ground.

Bernice O’Hear, assessed owner, told the Tribunal that she has resided on Firelane 16, off Wyldewood road for 46 years. She said she has only seen the lake come up Wyldewood Road twice in that time. She said that her land was high and dry and would receive no benefit from the work. She did not understand why she should be assessed $500 when she had no problem, especially when others are assessed only $100.

Mr. Kuntze told the Tribunal that he had not reduced the assessment rate east of the Bearss Drain including the area south of Firelane 15 because their access is Wyldewood Road to Firelane 16. He said the majority of Firelane 16 is above 176.2m in elevation but Wyldewood Road is not. These owners have to drive through the dip on Wyldewood Road to get to the property and are assessed the higher rate of $500 per lot because the access to their property is protected by the work.

Mr. Gerry Shaubel, assessed owner, told the Tribunal that he lives on Empire Road. He said he has resided in the area all of his life. He told the Tribunal that he is concerned about the effect the project will have on fish spawning and the wetland area. He said that the MNR has directed that fish must be allowed to go upstream and downstream uninhibited and he cannot understand how the fish can get through the Tideflex gates. Mr. Shaubel said he did not know how to solve the problem in the area but he felt that insufficient attention has been paid to the effect of the work on the wetland and fish. He said he would prefer a control gate at the lake.

Mr. Rick Brady, assessed owner, told the Tribunal that he owns two lots on Firelane 7. The vacant lot beside his cottage cannot have a building placed on it. He said his lot is above the 176.2 contour level so the project does not benefit him. Mr. Brady filed with the Tribunal a copy of the Court decision in the case of Broughton vs Twps. of Grey and Elma. He argued that the court concluded that “He who receives the advantage ought to suffer the burden” and since he did not receive any advantage he should not be assessed.

Mr. Robert Stretton, assessed owner, told the Tribunal that he lives at the end of Silver Bay Road where it meets Highway 3. He said that he considers that he is in no way affected by this work and so should not be assessed the $114 outlet assessment shown in the report.

Mr. Kuntze told the Tribunal that Mr. Stretton’s property is assessed only for outlet liability for the clean out of the drain.

Tim Benner, assessed owner, told the Tribunal that he lives on Silver Bay Road and has 7.65 acres there. He said that his appeal is that the berms and the Tideflex valves will divert the water north and these lands will be susceptible to fast rising water. He said he preferred a concrete structure with a sluice gate at the block wall near the outlet of the Bearss Drain. He argued that this structure would positively prevent the water from backing up the drain and could be built for much less than the engineer’s estimate. Mr. Benner indicated that he had quotes for the building of this structure with a gate three feet by three feet. The gate would cost $1,000. He said adding a foot in width or height would not dramatically increase the cost of the gate.

Mr. Kuntze told the Tribunal that his estimate for the cost of the work to build a concrete structure with a sluice gate at the block wall was very close to the quotes provided by Mr. Benner. He said that the difference in the proposals was the size and cost of the gates. Mr. Kuntze said that a gate large enough to service the watershed would be at least 3m by 2.4m and would cost a minimum of $75,000. Mr. Kuntze recommended two gates in his preliminary report. He said that in all other respects his estimates and those of Mr. Benner agree.

Mr. Douglas Sherk owns the property on the west bank of the Bearss Drain where it empties into Lake Erie. His property fronts on the drain from the lake to Firelane 9, a distance of about 270 m. He told the Tribunal that the water level in the drain can go up 4 feet in a matter of hours but comes down quickly when the lake level comes down. He said that he would like the back part of his property by the drain left in a wet condition to limit access to the property. He also wants a fence built across his property at the end of the berm to prevent traffic from trespassing.

He said that he receives no advantage from the construction and so should not have to pay any of the cost. He said water from his land does not drain into the drain, it soaks away and then to the lake so he receives no benefit from the project other than the block wall that protects his property from eroding into the drain.

Mr. Kuntze told the Tribunal that he intended to inhibit access to the Sherk property at the berm with large rocks. He said that once the work is done and the property returns to its natural state the grass will once again be four to five feet tall and people will not be tempted to trespass on it. Mr. Kuntze said that a major benefit to Mr. Sherk’s property is that under the report, the block wall that protects the Sherk residence will become part of the drain and Mr. Sherk will no longer have sole responsibility for its maintenance.

Mr. René Landry, Drainage Superintendent for the City, told the Tribunal that he had monitored the last major storm on May 1, 1997. He said that at noon on Saturday the water level gage at Port Colborne read 1.6m above datum and the Bearss Drain outlet had surged for 200 meters upstream from the lake. At that time the land on the east side of the drain had started to flood. At 3:15p.m., the gage read 2.19m ( 175.68 elevation) above datum and there was extensive flooding on Wyldewood Road and the homes were surrounded by water. He said the flooding rarely extends beyond the outlet of the Wm. Michael Drain. Mr. Landry told the Tribunal that the water recedes in about half the time it takes to build up. In this storm it was 7 or 8 hours building up.

Mr. Glenn Pfisterer, assessed owner, told the Tribunal that he represented about 30 other owners on Firelane 7 who oppose the work on the west side of the Bearss Drain and the assessments against their properties. He said that they received no benefit from the work on the west side of the Bearss Drain. He acknowledged that he and his neighbours have a drainage problem but not a lake water back up problem. He said their drainage problem is the result of spring and fall rains and poor drainage on Firelane 7. He said there are no drainage ditches except those the landowners have dug themselves in an effort to drain their properties. Mr. Pfisterer told the Tribunal he preferred a periodic cleaning of the drains and ditches to the proposed work.

Mr. Pfisterer said that he has joined his two lots into one parcel with one assessment but still has to pay two $500 assessments on two lots under the report. He indicated that he is not opposed to paying for routine maintenance of the drain but he preferred to leave as many trees as possible along the drain.

Mr. William Parker, assessed owner, told the Tribunal that he lives on Firelane 9 at lot 14 and 15. He said that he agrees with the proposed work and assessment but there needs to be an adjustment in the assessment for those who own abutting lots.

Mr. Joseph Bellonte, assessed owner, told the Tribunal that he lives next to Commodore Allen on Firelane 9 and he was flooded in 1985 and 1986. He said the problem is not just rain water but water backing up from the lake. He said the water level in the drain now is the same as the water level in the lake. The lake is 29 inches above the 20 year average height so the problem will not go away quickly. He said something needs to be done to avoid damage to property. He said he represents 5 or 6 other owners who feel the same way.

Mr. Bellonte told the Tribunal that the current ditch is a hazard to children. It has vertical banks not sloping like a berm will be. He said that he is in a low lying area and needs help. Mr. Bellonte argued that he is aware that people will be charged and not receive a direct benefit but that is common in society. He quoted school taxes on land and road taxes on gasoline as examples of “community taxes” that affect all but benefit some.

Mr. Bellonte told the Tribunal that when the wind is high the water backs up the drain and covers the road. He said that when he came in March weeds were all over the road as evidence that the road was covered with water.

Marjorie Albee, assessed owner, told the Tribunal that she has lived on Firelane 9 for 47 years. She said she is in favor of the project and feels that, in view of the current information on lake levels, it is short-sighted not to do something about the high water levels.

David P. Fleck, assessed owner, told the Tribunal that after hearing the problems people are having he is now in favor of the project and will pay the assessment for the project.

Mr. Tim Bellonte told the Tribunal that he used to live in the watershed but now owns property outside of the watershed. He explained that he has expertise in environmental matters. He said that in the past he has been to Commodore Allen’s cottage by boat because that was the only access. He pointed out that Mr. Allen is the fifth owner of that particular property that he knows about. He said that the lake is 4 inches below its highest level so now is the time to do the work to protect these properties. He said he believes the area has a terrible water problem.

Mr. Bellonte said that there are pike in the area but it is not a major spawning area. He said that, in his opinion, the area is environmentally sensitive but not an irreplaceable resource. He emphasized that this land is loved as a wild area by the people who live there.

The Tribunal is satisfied from the evidence presented that there is a problem of excess water on the low lying lands along Firelane 7 and Firelane 9. It is apparent that one source of the problem is water that flows up the Bearss Drain onto these lands from the lake and that is the problem that this project intends to solve. It is also apparent that there is a drainage problem due to lack of maintenance on the Bearss Drain, the absence of proper drainage along the roadways, and perhaps the lack of adequate drainage channels from the individual lots. The project does not fully address this problem however. When the channel of the Bearss Drain is maintained, there will be an outlet for whatever drainage the owners in the area wish to provide for their roads and lots. Therefore, in the opinion of the Tribunal, these lots will all receive a benefit from the proposed work and are properly assessable for part of the cost of this work.

The Tribunal accepts the engineer’s argument that a uniform assessment per building lot is an appropriate method of assessing the cost in the circumstances of this particular drain. However, the Tribunal is convinced that some owners have been assessed for two lots when in fact they only have one parcel that can be built on. Therefore, the Tribunal has decided to order an amendment to the assessment schedule to correct this.

Mr. Robert Szymanski appeared at the hearing. It was acknowledged that an error had occurred in his assessment in that he owns two abutting lots and therefore should be assessed for only one parcel. Therefore, the Tribunal has decided to order an amendment to the assessment schedule to correct this.

Mr. Szymanski also complained that there had been no allowance for land taken for the ditch on his property. The drain was in place long ago and any allowance for land taken would have been made at the time of construction. In the opinion of the Tribunal, Mr. Szymanski’s appeal against the allowance for land taken is without merit and is dismissed.

The Tribunal would like to point out to the engineer that the schedule of allowances does not set out the amount of allowance under the different sections of the Act. The engineer indicates that he is providing allowances under Section 29 and under Section 30. However, he has combined all of the allowances into one column in his report headed “Allowances” and does not distinguish between the amounts provided under the different sections. As a result, neither the owners nor the Tribunal can tell how much he has allowed for each type of loss. Since he must determine them separately, he could easily show them separately. The Tribunal is of the opinion that this is important information to which the owners are entitled and in all probability it will likely insist in the future that the amount of the allowance provided under each section of the Act be shown separately by the engineer in his report.

In the opinion of the Tribunal, the proposal of Mr. Benner to place the flood gate at the block wall near the outlet would be more expensive than the current proposal and provide approximately the same benefit to the owners. The Tribunal notes that the bottom elevation of the Bearss Drain rises quickly after the confluence with the Wm. Michael Drain. In the opinion of the Tribunal lake water will not rush up the channel far beyond this point as Mr. Benner feared it would.

With respect to Mr. Sherk, the Tribunal concludes that his property is properly assessed for the project. He is assessed $100 benefit just as the others along Firelane 12. He is assessed half of the $500 benefit assessed for cleaning out the outlet. He is assessed a minimal amount for future maintenance and he receives the major benefit of the drain assuming responsibility for maintenance of the block wall along his property. The Tribunal accepts the assurance of Mr. Kuntze and Mr. Landry that the removal of trees along this section will be kept at the minimum required to adequately perform the work and that arrangements will be made to hinder access to the Sherk property by motorised vehicles.

The Tribunal was impressed by the evidence that there may have been fish spawning in the area upstream of the Tideflex gates in the past but noted that neither the Ministry of Natural Resources nor the Conservation Authority had made comments on the project. With this in mind, the Tribunal recommends to the engineer that he explore the possibility of modifying the installation of the Tideflex valves so they can be opened to allow migrating fish access to the area upstream in the Wm. Michael Drain.

ORDER OF THE TRIBUNAL

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

1. The decision of the Court of Revision is confirmed.

2. All appeals under Section 48 with respect to the proposed work are dismissed.

3. The appeals of Mr. Douglas Sherk are dismissed.

4. Mr. Szymanski’s appeal against the allowance for land taken is dismissed.

5. Owners who have abutting lots that face on the same access road along Firelane 9 and Firelane 7 and have or can have only one residence built on them, are to have their lots combined into one parcel for assessment purposes. The number of parcels which consist of 2 or more lots combined in this manner, either now or in the past, as well as parcels which are single buildable lots, is to be counted in order to determine the total number of buildable parcels on Firelanes 9 and 7. The total benefit assessment currently shown in Schedule A of the report on properties on Firelanes 9 and 7 is to be divided by this number of buildable parcels and the resulting figure is to be the amount of benefit assessed against each such buildable parcel. For purposes of future maintenance of the project, abutting lots that face on the same access road along Firelanes 9 and 7 and are owned by the same owner(s) are to be similarly combined into one parcel for assessment purposes. The berm assessments on the lots that are combined in this manner into one parcel are also to be combined into one berm assessment amount and this berm assessment amount is then to be reduced to the amount assessed for berm maintenance under the report against an individual building lot in a similar location. The total of the reductions in berm maintenance assessments that result from this is to be deducted from the total assessment for the maintenance of the west bank berm that is set out in Schedule B of the report. Where lots are combined into a single buildable parcel as outlined above, the outlet assessments for the lots being combined are to be added together to form the outlet assessment against the resulting parcel. This will apply both in Schedule A for construction and in Schedule B for maintenance. This provision will also apply to the maintenance assessment for the West Branch East in Schedule B.

6. Mr. Szymanski’s two abutting lots are to be combined into one parcel and the resulting double assessment of $1000 is to be reduced to $500. The benefit assessment against each of the parcels on the east side of Firelane 13, including the parcel owned by Mr. Szymanski is to be then increased by the sum of $500 divided equally among the parcels. For the purposes of future maintenance of the east bank berms, the benefit assessment in Schedule B against the Szymanski parcel is to be reduced to $500 and $500 (the amount of the reduction) is to be deducted from the total assessment for east bank berm maintenance, so that no adjustment in the other berm maintenance assessments is required. The outlet assessment for the Szymanski abutting lots in Schedule A are to be combined into one assessment against the combined parcel; similarly, the assessments in Schedule B for maintenance of the Bearss Main Drain and the Wm. Michael Drain are to be combined for the combined building parcel.

7. All remaining appeals under Section 54 are dismissed.

8. 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. In the opinion of the Tribunal there is a problem of excess water in the Bearss Drain and Wm. Michael Drain caused by water flowing up the drains from Lake Erie and this project is an appropriate project to address this problem.

2. In the opinion of the Tribunal, the evidence shows that the channels for parts of both drains require maintenance.

3. In the opinion of the Tribunal, the assessments proposed by the engineer required adjustment to follow the principle of a uniform assessment per parcel of land that can be built on.