Foster Crescent Drain (Re), 1997 ONAFRAAT 41

Agriculture, Food and Rural Affairs Appeal Tribunal

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

APPEAL: Foster Crescent Drain, Town of Bosanquet Foster Crescent Drain (RE) 1997 ONAFRAAT 41 STATUTE: Drainage Act HEARING: September 17, 1997 DATE OF DECISION: October 1, 1997 1997-41 NEUTRAL CITATION: 1997 ONAFRAAT 41

Foster Crescent Drain Town of Bosanquet

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 James and Barbara Hamilton, Donald and Pauline Matheson, Norm and Vickie Stewart under Section 54 and Gordon and Bonnie Elson under Section 48 of the Drainage Act with respect to the Foster Crescent Drain, Town of Bosanquet.

Before: Mr. Vernon Spencer, Chair; Mr. John Taylor, Vice-Chair; Mr. Herbert Todgham, Vice-Chair

Appearances: Mr. James and Mrs. Barbara Hamilton, appellants Mr. Donald and Mrs. Pauline Matheson, appellants. Mr. Norm and Mrs. Vickie Stewart, appellants. Ms. Sharon Lieknins and Mr. John Paetz, appellants. Ms. Pauline Gilmour, assessed landowner. Mr. Kenneth Steer, assessed landowner. Mr. Jim Monteith, on behalf of the Township of Bosanquet.

DECISION OF THE TRIBUNAL

This appeal was heard in Thedford, Ontario on Wednesday September 17, 1997. Several ratepayers appealed to the Ontario Drainage Tribunal (the Tribunal) from the decision of the Court of Revision on the proposed Foster Drain in the Town of Bosanquet (the Town). Ms. Carol McKenzie, Clerk of the Town performed the duties of the Clerk of the Tribunal.

Section 48 of the Drainage 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 Drainage 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

The Foster Crescent Drain report, dated March 14, 1997 and the reconsidered report dated June 20, 1997 was prepared by Mr. J. A. Monteith in compliance with a petition under Section 4 of the Drainage Act (the Act). The affected lands and road have suffered from flooding during storm events. In addition to surface ponding problems basement sump pumps run frequently and septic tanks and septic field beds are subject to flooding.

The outlet for the proposed system is the Ipperwash Drain. The proposed drain consists of 265m of covered drain along Ipperwash Road and a branch of 290 m along Foster Crescent. The estimated cost of construction is $101,200.00. The watershed is 5.85 hectares which includes 1.1 hectares of streets.

The design criteria provides for a 1 year storm return frequency with an inlet time of 15 minutes and a composite runoff coefficient of 0.175.

The Issue

The issue before the Tribunal is :

Are the assessments in the engineer’s report as confirmed by the Court of Revision appropriate?

The Evidence and the Findings

Mr. Jim Monteith, the engineer who prepared the Foster Crescent Drain report outlined the method of calculating assessments as follows. He said outlet is based on oversizing costs to accommodate upstream flow. He used runoff coefficients of 0.1 for vacant land, 0.15 for occupied land, 0.2 for Foster Crescent (unpaved road) and 0.4 for Ipperwash Road (paved). Outlet was weighted to reflect the length of drain downstream from each property.

The Ipperwash Road section of the drain serves only one side of the road as the roadway is the break in the watershed. It has no long laterals for private tile connections thus the benefit assessment was much lower than the benefit for the Foster Crescent section. The road was assessed special benefit for road inlet facilities. The water department was assessed the cost of crossing water mains, telephone and hydro are assessed the cost of crossing cables and pole lines. The remaining cost was assessed to the affected owners as benefit, based on the judgement of the engineer. Mr. Monteith explained that he considered the problem to be a community problem and did not attempt to differentiate between the properties on the basis of relative elevations. There had been filling of lots in the area so lots that once were high are now low and it is an impossible task to attempt to sort out what the original flow patterns were.

Mr. James Hamilton and Mrs. Barbara Hamilton appeared before the Tribunal to appeal their assessment. The Hamiltons filed with the Tribunal a series of photos showing the flooding that takes place in the Foster Crescent portion of the drainage area. They said that the Foster Crescent road way is in excess of 66 feet and much flooding takes place on the municipal property. They said that they have severe flooding on their property and cannot walk from their property to the road because of water on the road allowance. They said that, in their opinion, the assessment against the Town road is not adequate.

Mr. Hamilton told the Tribunal that he feels he should not have to pay so much to get the problem rectified. He said that the town has allowed the development to go on without regard to the drainage problem and he feels the Town is responsible for solving the problems.

Mr. Hamilton said that the report specifies that the landowners ought to install private drains to connect to the new outlet so that the land will be drained and can absorb more water during a storm event. He said that the same requirement was not placed on the road allowance and he feels it should be specified in the report.

Mr. Hamilton told the Tribunal that the situation became worse when the swamp on Lot 2 was filled and a building erected. He said that he felt there was an underground flow across Lot 2 and then to the south that was blocked by this construction. He emphasized that he was not blaming the owner of Lot 2 as that owner did not know and only did what was required so he could build on the lot.

Mr. Donald Matheson appealed his benefit assessment. He said that the drain is necessary to alleviate problems but he is assessed too much because:

• he lives on a high beach ridge,
• he paid a premium for the lot in 1977. When swamp lots were going for $1,000, he paid $7,500 for a high dry lot,
• his home has a full basement that never has had water in it,
• his septic system was installed in 1979 and he has had no problems with it,
• when the water level was up May 19th, 1997 the floor of the basement was 1.2 feet above the maximum water level.

Mr. Matheson said that the area is in need of a good drainage system but he is assessed too much for the value he gets out of the drain. Mr. Matheson said that only one third to one quarter of his land drains to the road and the balance goes to another outlet.

Mr. Norm Stewart and Vicki Stewart appealed their assessment claiming they receive minimal benefit on their lots (89, 109, 110 on Ipperwash road). They said that the house is on lot 110, the garage on lot 109 and an old storage cabin on lot 89. In total they own 130 feet of frontage that is essentially one lot. They said their property does not have a flooding problem and has had no fill for the past 10 years.

Mrs. Stewart said that since they do not have a flooding problem they will receive no increase in market value, improved appearance or control of surface water and for these reasons they feel they are highly assessed for a project they do not require.

Mr. Stewart told the Tribunal that their lot is at a higher elevation on a ridge of sand approximately two or three feet higher than the other lots.

Ms. Sharon Lieknins and Mr. John Paetz appealed the assessment on their property. Ms. Lieknins told the Tribunal that the lot to the north of her was not assessed benefit and the lot to the south, which is lower than hers and will benefit from the project has not been assessed as much benefit as hers. She said there is a small area on the property where water ponds. This area is over the dry bed for her septic system and is covered with plywood three to four inches under the surface. She said the water cannot soak into the ground because of the plywood. This is the only problem on her lot and it does not need an extensive drain to rectify the situation. She told the Tribunal that the sump pump on her property runs for a short period of time in the wet season.

Mr. Kenneth Steer, owner of lot 107 plan 402 told the Tribunal that the building on his lot was placed in 1950. At that time the lot was high and dry and the road was the same height as the lots. His lot is now low and the floor joists in his house suffer from flooding and the septic system does not work properly. He said that the lot to the south was the same height as his but fill has been added to the point that he now has a timber wall about three feet high at the property boundary. He said that was when the problems started. He said that while he had flooding in the past the big difference now is the time it takes to drain away. He said when the land was flooded in 1995 his lot was under water for over three weeks. He told the Tribunal that the wall continues onto the road allowance where there used to be a ditch. Mr. Steer said that he has not filed an appeal and he is satisfied with the assessment but he wants the work done as quickly as possible.

Pauline Gilmour told the Tribunal that she owns Lot 13 Foster Crescent. She said her property is unaffected by the drain because it is high. She said that the septic tank is not affected and the crawl space is not flooded. Mrs. Gilmour said she was not receiving any benefit from the project.

In response to the appellants Mr. Monteith told the Tribunal that

• The area of Foster Crescent, including the wider parts of the road allowance is all included in the acreage assessed as road
• The Town has requested that, during the tendering process, the contractor is to include installation of a supplementary sub drain at the Town’s expense.
• $886 of Mr. Hamilton’s assessment is for the lateral connection to his property.
• His field inspection of the Matheson property persuaded him that not very much water from this property flowed to the north. In his opinion the hill raises past Mr. Matheson’s home and therefore Mr. Matheson’s land is assessed in the report as if all the surface water from his property comes into the drain.
• As engineer for the project, he is in favor of everyone having a lateral connection and sub drainage to get the water table in the watershed down..
• He did not try to differentiate between the elevations of the properties when making his assessments because of the filling that has taken place over time. He said, in his opinion, it was an impossible task to determine how the water originally flowed through this area. He had assessed both benefit and outlet liability on an area basis for this project as he felt this was the fairest way to treat the assessment of the watershed as it now exists.

The Tribunal examined the evidence and concluded that, in the opinion of the Tribunal, Foster Crescent is assessed too low for the benefit it will receive from the project. The Tribunal notes that the engineer has distributed the benefit assessment on the basis of the size of the individual properties. While this is an unusual method of distributing benefit costs, given the nature of this watershed and the filling of lots that has occurred over time the Tribunal agrees with the engineer that this division of assessment is equitable for the circumstances of this project.

Having drawn these two conclusions the Tribunal then examined each appeal.

In his evidence Mr. Hamilton agreed that his situation was much the same as his neighbours and they all are in great need of drainage improvement. In the opinion of the Tribunal Mr. Hamilton is assessed a fair and reasonable portion of the project costs and therefore Mr. Hamilton’s appeal is dismissed .

For Roll number 50-242-01 the lands of Donald and Pauline Matheson the Tribunal is satisfied that the benefit assessment for this property is too large given the elevation of this property and its position in the watershed. The Tribunal decided to set the benefit assessment at $750.00 The outlet assessments are confirmed.

Norman and Vickie Stewart complained of the high assessment in relation to other assessments for benefit along Ipperwash road. The engineer established that benefit assessment had been calculated on the basis of the size of the property. Stewarts own three lots while most others own one lot. The Stewarts pointed out that one lot is occupied by the septic system to which their house on the adjacent lot is attached. The third lot is occupied by their shed or garage and accordingly they did not have three lots on which to build. While the Tribunal has sympathy for the position of the Stewarts it does not believe that granting any relief on these grounds is merited given that the assessments have been equitably allocated based on area. Their total property is three times as large as their neighbor Petroniks but their benefit assessment is only two times what his is. Their property is one third larger than Ken Steer’s property and their benefit assessment is just over one quarter more than his. The appeal of Norman and Vickie Stewart is therefore dismissed.

Ms. Sharon Lieknins and Mr. John Paetz complained their assessment was unwarranted as their property is substantially higher than other properties downstream. While this argument points to a lower assessment the Tribunal notes that the property is substantially greater in size than the neighbors but the assessment is practically the same. The Tribunal believes that the engineer has already taken into consideration this point of view and assessed this property lower than the area of the property would otherwise dictate. The appeal of Mrs. Sharon Lieknins and Mr. John Paetz is therefore dismissed.

For roll number 50-118 the lands of Jeffery and Pauline Gilmour the Tribunal is satisfied that the assessment for this property is too large given its elevation and position in the watershed. The tribunal therefore decided to set the benefit assessment at $1,422.00. The outlet assessment on this lot is confirmed.

The Tribunal concluded that the assessment levied on Foster Crescent was too low compared to the assessment on the other lands and the extent of the flooding that takes place on the street. Therefore the Tribunal decided that the $905 reduction in benefit assessment indicated above should be added to the assessment of Foster Crescent.

Gordon and Bonnie Elson did not appear at the hearing nor did they make any representations to the Tribunal through an agent. Therefore the Tribunal decided to dismiss the appeals of Gordon and Bonnie Elson.

ORDER OF THE TRIBUNAL

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

1. The appeal of James and Barbara Hamilton is dismissed .

2. For Roll number 50-242-01, the lands of Donald and Pauline Matheson, the benefit assessment is reduced from $1,455.00 to $750.00 The outlet assessments on this lot are confirmed.

3. The appeal of Norman and Vickie Stewart is dismissed.

4. The appeal of Mrs. Sharon Lieknins and Mr. John Paetz is dismissed.

5. For roll number 50-118 the lands of Jeffery and Pauline Gilmour the benefit assessment is reduced from $1,622.00 to $1,422.00. The outlet assessment on this lot is confirmed.

6. The sum of $905.00 is to be added to the benefit assessment of Foster Crescent increasing the benefit assessment from $8,288.00 to $9,193.00. The special benefit and the outlet assessments are confirmed.

7. The appeals of Gordon and Bonnie Elson are dismissed.

8. There is no order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

The reason for these decisions is that, in the opinion of the Tribunal, at the upper end of Foster Crescent there are properties that to varying degrees receive less benefit from the project than contemplated by the engineer and so the Tribunal made minor adjustments to the assessment of these lots and increased the assessment against Foster Crescent which appeared to be under assessed for this project. In the view of the Tribunal the rest of the assessments are fair and equitable.

Dated at Chatsworth, Ontario this 1st day of October, 1997